Bombay High Court
Case BriefsHigh Courts

Bombay High Court: While deliberating upon the instant appeal challenging the conviction and sentence under Section 376, IPC [rape], the Division Bench of A.S. Gadkari and Milind N. Jadhav, JJ., observed that, once the Trial Court has concluded that the prosecution has proved the offence of rape beyond reasonable doubt, then there is no reason to deviate from the statutory position and award a lesser sentence than what is prescribed by the statute.

Facts and Legal Trajectory of the case: Victim X (deaf and dumb), her husband (blind) and the accused with his family, lived jointly in her matrimonial home. The victim came to her paternal home, wherein she narrated her ordeal before her mother via sign language and gestures. She revealed that the appellant had ravished her on 16-11-2005 and threatened her with dire consequences if she divulged the details to anyone. The mother of the victim then lodged a report with Lasalgaon Police Station.

Investigation and medical examination were conducted, and witnesses were examined. The appellant was arrested and the chargesheet was filed. The matter came up before Additional Sessions Judge, Niphad, Nashik whereby the appellant was convicted for offences punishable under Sections 376 and 503, IPC. The Trial Court had observed that appellant/accused has been facing trial for 6-7 years and is 60 years old therefore leniency has been shown while sentencing him. Via Trial Court’s order dated 13-02-2013, the appellant/accused was sentenced to 5 years’ rigorous imprisonment with a fine of Rs. 1000.

Aggrieved with the afore-stated conviction and sentence, the appellant knocked on the doors of the High Court. Meanwhile the State of Maharashtra filed an appeal to enhance the sentence given by the Trial Court. The High Court too registered a suo-motu petition issuing a notice to the Additional Sessions Judge, Niphad, Nashik concerning the quantum of sentence.

Contentions: The counsel of the appellant contended that the prosecutrix had filed a false case and that the accused/appellant was not present in the house at the time of the alleged crime. The counsel also argued that the case was a means to an end i.e., to affect a partition of the family field and property. It was also argued that there was a substantial delay of 3 days in filing the FIR.

Per contra, the respondents contended that the appellant/ accused is the brother-in-law of the victim and on the day of the crime, all the family members had gone out, except the victim, her blind husband and the accused. It was submitted that the appellant’s crime has been proved beyond reasonable doubt. The respondents thus urged the High Court to enhance the 5-year sentence given to the appellant as per Section 376 as it stood prior to the amendment in 2018.

Observations: Perusing the facts and the contentions presented, the Court made the following observations-

  • It was noted that the Trial Court adopted a proper procedure while recording the victim’s evidence through an expert witness- in this case, an impartial translator/ interpreter. The Court also noted that the testimony of the victim through the interpreter did not shake during the cross-examination by the appellant’s counsel. It was observed that the elaborate cross-examination, however, did not disprove the incident in favour of the appellant.

  • Pointing out that the defense case relied mostly on a property dispute going within the family, the Court observed that no woman would take the risk of leveling a charge such as of rape, only on the pretext of property. “No woman would put at stake her life by making such a serious allegation against her family member unless and until such a heinous act has taken place”. The Court further stated that the answers given by the victim during her cross-examination vis-a-vis the property dispute, cannot be the ground or reason to discard her evidence. Upon examining the proceedings before the Trial Court, the Division Bench was satisfied that the prosecution had proved the guilt of the accused (appellant) beyond reasonable doubt. “The victim is a helpless, deaf and dumb married woman, whose privacy has been shattered by the appellant”. It was observed that rape is not merely a physical assault but it destructs the whole personality of a helpless woman.

  • It was observed that the appellant’s misuse of his position of trust to commit such a horrific crime has shocked the conscience of the Court

  • Moving onto the issue of sentence, the Court observed that the Trial Court erred in its reasoning behind awarding 5 years’ rigorous imprisonment to the appellant. The Court pointed out that given the facts of the case and the horrific manner in which the appellant had abused the victim, the rationale applied by the Trial Court is flawed as it is against the statute.

  • Pointing out that prior to amendment of Section 376 in 2018, the provision had stated that “whoever commits rape shall be punished with Rigorous Imprisonment of either description for a term not less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine”. The Court observed that the instant matter falls under Section 376(1).

Decision: With the afore-stated observations, the Court convicted the appellant in view of Section 235, CrPC for the offence punishable under Section 376. IPC. The appellant’s sentence was enhanced to 7 years’ rigorous imprisonment and fine of Rs. 25,000.

[Madhukar Makaji Mudgul v. State of Maharashtra, 2022 SCC OnLine Bom 1674, decided on 19-08-2022]


Advocates who appeared in this case :

Ashish Satpute, Advocate, for the Appellant;

H.J. Dedhia, APP, Advocate, for the Respondent.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Gujarat High Court
Case BriefsHigh Courts

   

Gujarat High Court: The Division Bench of S.H. Vora and Rajendra M. Sareen, JJ. dismissed a criminal appeal which was filed on being dissatisfied with the order passed by Special (POCSO) Judge for the offences under section 376 of Penal Code, 1860 and also, u/s 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The case of the prosecution was that from 26-12-2015 to 27-12-2015, the accused forcibly entered in the house of the complainant, threatened the victim to kill her parents and thereupon, forcibly made intercourse with the victim and thus, committed the offence punishable u/s 376 of IPC and also u/s 3 and 4 of the POCSO Act. After having found material against the respondent accused, charge-sheet came to be filed. After hearing both the sides and after analysis of evidence adduced by the prosecution, the trial Judge acquitted the respondent-accused of the offences, for which he was tried, as the prosecution failed to prove the case.

The Court noted that the prosecution has not brought on record any authentic and reliable evidence as to wherefrom the contents of the birth certificate being obtained and placed on record and that the victim had not disclosed anything regarding the act of intercourse when her statement u/s 164 of the Code of Criminal Procedure was recorded. In nutshell, the victim did not shout for help, or her brothers disclosed anything though were outside home for tuition and attending the school nor she sought any help by using her mobile. Not only that, she did not also disclose to any of her relatives, who came at her home despite she was asked. Thus, the Court agreed with the trial judge’s finding that birth certificate of the victim and occurrence of the incident as alleged by the victim were not reliable and trustworthy.

The Court reproduced what was said in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and found that in the present case APP has not been able to point out to as to how the findings recorded by the trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

The Court finally relied on Rajesh Singh v. State of Uttar Pradesh, (2011) 11 SCC 444 and in the case of Bhaiyamiyan v. State of Madhya Pradesh, (2011) 6 SCC 394 where it was established that while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court’s interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

The criminal appeal was thus dismissed.

[State of Gujarat v. Pratap Prabhuram Devasi, R/Criminal Misc. Application No. 15092 of 2022, decided on 22-08-2022]


Advocates who appeared in this case :

CM Shah, Advocate, for the Applicant 1.


*Suchita Shukla, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Manjari Nehru Kaul, J., while dealing with a revision petition for setting aside the order passed by the Civil Judge in Execution Petition held that the petitioner was unable to bring any material that showed that other co-owners were not agreeable to take possession.

The petition was filed for setting aside the order dated 23-05-2022 whereby objections under Order 47 read with Section 151 of the Code of Civil Procedure, 1908 preferred by the petitioners were dismissed.

Facts:

The suit land is in the joint ownership of respondents and other co-owners as per the entries recorded in the ownership column of the jamabandi for the year 2012-2013. There has never been any partition of the suit land.

Arguments:

The counsel for the petitioner contended that the impugned order passed by the Civil Judge was a manifest error of law. Further, he contended that since the suit land was jointly owned, the respondents cannot seek possession of land beyond the extent of their respective shares. It was also contended that there was a non-compliance of Order 1 Rule 8 of the Code by the trial Court while passing the decree, where there were a large number of persons involved having common interest in a suit and the respondent did not take permission from Court to act on behalf of others. Hence, the decree cannot be executed.

Issues:

Whether one of the co-owners acting on behalf of others constitute a proceeding that has to follow Order 1 Rule 8 of the Code?

Whether an application under Order 47 read with Section 151 can be entertained where the consent of co-owners has been assumed?

Whether one owner out of the co-owners seek possession of the entire joint land as an agent of the other co-owners?

Observations and Analysis:

The Court relied on India Umbrella Mfg. Co. v. Bhagabandei Agarwalla, (2004) 3 SCC 178 and Mohinder Prasad Jain v. Manohar Lal Jain, (2006) 2 SCC 724 and held that “any one owner out of the co-sharers can seek possession of the entire joint land. Such co-owner would do so on his own behalf, in his own right and as an agent of other co-owners. The consent of the other co-owners would be assumed to have been taken unless it is shown to the contrary that co-owners were not agreeable and despite their disagreement, a suit had still been instituted.”

The Court also noted that the petitioner has failed to bring to the notice any material to substantiate his claim that co-owners were not agreeable to take possession.

The Court observed that the scope of interference in execution proceedings is very limited and the Court could not go behind the decree.

[Siriya v. Tulsi Puri, 2022 SCC OnLine P&H 1872, decided on 21-07-2022]


Advocates who appeared in this case :

Mr. Munish Kumar Garg, Advocate, for the Petitioner.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case where a mother administered poison to her daughters and she survived but the daughters died, D. Bharatha Chakravarthy J. took a lenient approach in sentencing a woman convicted under Section 302 and Section 304 Penal Code, 1860 on account of the ‘Nalla Thangal Syndrome’.

The present appeal arises out of an order dated 27-09-2019 of a Fast Track Court, Vellore, that found the accused guilty of Section 302 and 304 IPC (2 counts) and imposed a sentence of Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/- for each count. The case was condemned as a glaring testimony of the perpetuating gender inequality in society. The accused was a mother of three girls- Lathika, Hasini and a one-and-a-half months old baby, on 22-07-16, when distraught from the overbearing taunts of the society about her misfortune for bearing only female children, she committed the alleged offence. She administered a poison- Organo Phosphorus compound to Hasini and the baby girl and then consumed it herself, in an attempt to commit suicide. Subsequently, while she was rescued, both the children died.

After the registration of the case under Section 302 and Section 304 of Penal Code, 1860 and filing of the final report, it was committed to the Principal Sessions Court, Vellore and thereafter was forwarded to the Trial Court. Pursuant to this, prosecution engaged in examination of witnesses and production of material evidence on record. After considering the same, the Trial Court verified the facts and concluded that this was an instance of the ‘Nalla Thangal Syndrome’ which is such a state of mind in which the mother kills her children before killing herself, because of the thought that there would be no one to look after them. The concept was founded by District Judge in the case In Re Sreerangayee v. Unknown,1972 SCC OnLine Mad 470 by considering the legend story of Nalla Thangal contained in Tamil literature.

Thus, condemning the pitiful view of society in regard to the birth of a girl child, and considering the above-mentioned relevant cases, the Bench upheld the decision of the Trial Court and disposed the appeal accordingly. The Court found it more appropriate to release the accused under and befitting to release the appellant/accused under Section 4, Probation of Offenders Act, 1958.

It is germane to mention that during Trial the appellant/accused begot one more female child, thus now having 4 children wherein two are dead and two are alive. Thus, the Court directed the appellant to execute a bond for good behavior for a period of two years and undertook to educate both the female children at least up to the under-graduate level and also to see their upbringing in the best possible way. She was also required to appear before the Trial Court every two years to confirm the same and finally, her husband also executed a bond, standing as a surety for the compliance of these directives.

[Sathiya v. State, 2022 SCC OnLine Mad 3969, decided on 14-07-2022]


Advocates who appeared in this case :

R. Jothi, Advocate, for the Appellant;

S. Vinoth Kumar, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

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Know Thy Judges


Explorer of the Legal Multiverse – Justice A.M. Khanwilkar retires

Justice Krishna Murari

Justice M.M. Sundresh

Case BriefsSupreme Court

Supreme Court: Explaining the importance of the role of Trails Courts, especially, with respect to framing of charges, the bench of AM Khanwilkar, Abhay S. Oka and JB Pardiwala*, JJ has held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

Factual Background

Allegedly, the accused persons formed an unlawful assembly and laid an assault on the appellant and his family members after trespassing into his residential property and started damaging the tin fence. When the appellant tried to restrain the accused persons from causing any further damage, they all started assaulting the appellant by giving fisticuffs. One even hit the appellant with a wooden log. When the wife and the daughter-in-law of the appellant came to rescue him, the accused persons caught hold of them and beat them up. Both the women were then dragged as a result the clothes of the the wife of the appellant got torn thereby outraging her modesty. The wife, due to the injuries suffered by her, had to be shifted to a hospital where she was soon declared dead. The cause of death of the deceased as assigned in the post mortem was “cardio respiratory failure”.

Trial Court and High Court orders

The trial court thought fit to discharge the accused persons of the offence of murder punishable under Section 302 of the IPC and proceeded to frame charge against the accused persons for the offence of culpable homicide punishable under Section 304 of the IPC. The High Court of Jammu and Kashmir also thought fit to affirm the order passed by the trial court discharging the accused persons of the offence of murder.

Supreme Court’s analysis and decision

The Court observed that the trial court discharged the accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide under Section 304 of the IPC by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the postmortem report being the “cardio respiratory failure”, the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased.

Holding that such approach of the trial court is not correct and cannot be countenanced in law, the Court explained that the post mortem report, by itself, does not constitute substantive evidence.

“Whether the “cardio respiratory failure” had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses.”

Explaining why the postmortem report of the doctor is not substantive evidence, the Court observed that it is the previous statement based on doctor’s examination of the dead body and the doctor’s statement in court is alone the substantive evidence.

“The postmortem report can be used only to corroborate his statement under Section 157, or to refresh   his memory under Section 159, or to contradict his statement in the witness-box under Section 145 of the Evidence Act, 1872.”

Observing that the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination, the Court said that once the expert’s opinion is accepted by the Court, it is not the opinion of the medical officer but of the Court.

Keeping this position of law in mind, the Court held that in the case at hand, the prosecution should have been given opportunity to prove all the relevant facts including the post mortem report through the medical officer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High Court to arrive at the conclusion that since no serious injuries were noted in the postmortem report, the death of the deceased on account of “cardio respiratory failure” cannot be said to be having any nexus with the incident in question.

Further, whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record.

“Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same.”

Explaining the settled position of law that in a criminal trial, the prosecution can lead evidence only in accordance with the charge framed by the trial court, the Court said that once the trial court decides to discharge an accused person from the offence punishable under Section 302 of the IPC and proceeds to frame the lesser charge for the offence punishable under Section 304 Part II of the IPC, the prosecution will be thereafter compelled to proceed as if it has now to establish only the case of culpable homicide and not murder. On the other hand, even if the trial court proceeds to frame charge under Section 302 IPC in accordance with the case put up by the prosecution still it would be open for the accused to persuade the Court at the end of the trial that the case falls only within the ambit of culpable homicide punishable under Section 304 of IPC.

The Court was, hence, of the opinion that in the case at hand it would be more prudent to permit the prosecution to lead appropriate evidence whatever it is worth in accordance with its original case as put up in the chargesheet.

[Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 SCC OnLine SC 913, decided on 26.07.2022]


*Judgment by: Justice JB Pardiwala

Rajasthan High Court
Case BriefsHigh Courts

   

Rajasthan High Court: Dinesh Mehta, J. considered the stamp vendor and Sub Registrar as relevant witnesses in a case where registration of relinquishment deed was challenged, and it was pleaded to summon them as witnesses for ascertaining the claim. The Court stated that ascertaining the relevancy of the proposed witnesses while deciding application under Order XVI Rules 1 and 2 Civil Procedure Code (‘CPC’) is to be prima facie established by the Trial Court.

A suit was instituted declaring the relinquishment deed as null and void wherein the defendant moved an application stating that the stamp vendor – Tulchhiram Sindhi from whom the stamps were purchased and the registering authority – Sub-Registrar, Chunavadh, who registered the contentious document are necessary witnesses may be summoned as witnesses , which was thereby rejected by Additional Civil Judge 1, Sriganganagar. Assailing this, instant writ petition under Article 227 was filed.

Counsel for petitioner Adv. S.K. Shreemali submitted that the plaintiff herself had purchased the stamps and appeared before the Registering Authority, who in discharge of his official duties, had apprised the plaintiff about the relinquishment deed being executed by her and, therefore, their presence as witnesses was imperative in order to substantiate the petitioner’s stand.

Counsel for respondent Adv. Dixit Panwar, submitted that that petitioner’s application is nothing but an attempt to protract the proceedings.

The Court noted that the provisions contained under Order XVI Rule (1) and (2) Civil Procedure Code in unequivocal terms provide that the Court suo moto or on an application, can issue summons to a witness to appear in the Court. Sub-rule (2) of Rule 1 of the Order XVI of the Code enjoins upon the party desirous of getting a summons issued to a witness to state in its application the purpose for which the witness is proposed to be summoned.

The Court observed that on a perusal of subject application it is clear that the petitioner had stated that she herself had purchased the stamp from the stamp vendor – ‘Tulchhiram Sindhi’ and thereafter appeared before the Sub-Registrar, Chunavadh for executing and getting the relinquishment deed registered. Thus, presence of the stamp vendor and Sub-Registrar is necessary in order to ascertain the veracity of petitioner’s stand.

The Court further observed that the Trial Court has not properly considered the mandate contained in Order XVI Rule(s) 1 and 2 CPC and rejected petitioner’s application indicating that the applicant has failed to establish the relevancy of the testimony of these two witnesses. Thus, the applicant may be called upon to show relevance or need of such witness (es) but he/ she cannot be asked to establish or prove such requirement. The requirement has to be determined by the Court.

The Court thus held “the stamp vendor and the then Sub-Registrar are relevant witnesses, who would assist the Court to come to a correct conclusion”

[Gurjant Singh v. Amarjeet Kaur, S.B. Civil Writ Petition No. 13516/2017, decided on 29-06-2022]

*Arunima Bose, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a POCSO case, Kauser Edappagath, J., upheld the Trial Court’s judgment convicting a father for sexually assaulting his minor daughter.  

The appellant-accused had assailed the Trial Court’s judgment of conviction and sentence convicting the appellant for an offence punishable under Section 9(n) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for sexually assaulting his 15 years old daughter.   

The Trial Court convicted the appellant and imposed a sentence of five years’ rigorous imprisonment with a fine of Rs.25,000.  

Grievances of the Parties  

Assailing the impugned order of the Trial Court, the appellant contended that the conviction was based on the uncorroborated testimony of the child witness which suffered from contradictions and omissions. Further, the appellant alleged that there was inordinate delay in reporting the matter and lodging the FIR and that the age of the victim had not been legally proved.  

The victim deposed that even at the age of 7 years, the accused had sexually abused her by making her lie on his body and also touched her private parts. The victim submitted that thereafter the appellant went to Gulf and after returning, he regularly assaulted her sexually by catching her breast, buttocks, and private parts at night.  

The deposition of the victim was corroborated by her mother by admitting that the accused is her husband and after their marriage, the accused disturbed her elder sister due to which she along with the accused started to live separately. She also deposed that, on 30-05-2011 at 11 p.m. the appellant sexually assaulted the victim when she was sleeping and she along with the victim pushed him out of the house and closed the door. 

The victim also alleged that the appellant had made a hole in the bathroom to see her taking bath which was corroborated by her mother.  

Observations and Findings 

The Court noted that even though the victim was cross-examined at length by the accused, nothing tangible could be extracted from her to create any shadow of a doubt that she is not a truthful witness. The Court opined, 

“She gave a reliable, consistent, and credible version of the crime which inspires confidence. It is settled that, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. It is equally settled that the statement of a child witness should be scrutinized with great care and caution.” 

Relying on Hari Om v. State of Uttar Pradesh, (2021) 4 SCC 345, the Court held that corroboration of the testimony of the child witness is not a rule but a measure of caution and prudence is a well-accepted principle and in the instant case there is absolutely no ground for doubting the veracity of the victim. Similarly, the Court relied on State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, to hold that the courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.  

With regard to the contention of inordinate delay in reporting the matter, the Court held that delay in the sexual offence has to be viewed differently. The Court expressed, 

“The delay in a case of sexual assault cannot be equated with a delay in a case involving other offences since several factors weigh on the mind of the victim and members of her family. In a tradition-bound society like ours, particularly in rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there was a delay in lodging the FIR.” 

Hence, the Court held that failure to mention the exact time of occurrence concerning the incident which happened when the victim was aged 7 years did not create doubt in the prosecution case, particularly when the victim had clearly stated that she was very ashamed to complain about such acts against her father before others.  

Conclusion  

Thus, the Court concluded that there was nothing on record to doubt about the genesis or genuineness of the prosecution case on account of the alleged delay. With regard to contention that the victim’s age had not been proved before the Trial Court, the Court observed that the appellant had not raised such contentions before the Court below, hence, the same could not be entertained in appeal. The Court remarked,  

“The accused is none other than the father who is supposed to know the age of the victim. The evidence of the victim and her mother would show that the victim was a minor at the time of the incident. She clearly deposed that the accused sexually exploited her since she was seven years old. There is no challenge to the said evidence.” 

Lastly, on the question of sentence, the Court observed that the appellant was sentenced only to the mandatory minimum period of punishment; hence, considering the entire facts and circumstances of the case, the Court held that the sentence imposed by the Trial Court was absolutely reasonable.  

Consequently, the conviction and the sentence passed by the Trial Court were confirmed. Accordingly, the appeal was dismissed. 

[x v. State of Kerala, Crl. A. No. 649 of 2021, decided on 01-07-2022]  


Appearance by:  

For the Appellant: Advocates T.U. Sujith Kumar and Dinesh G Warrier 

For the State:  Smt. Ambika Devi S, Special GP (Atrocities Against Women and Children) and Smt. Bindu O.V.  PP 


*Kamini Sharma, Editorial Assistant has put this report together 

 

 

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: HP Sandesh J. dismissed the petition and upheld the judgment by the Appellate Court and further directed the complainant to file necessary application to condone the delay.

The factual matrix of the case of the respondent/complainant is that the complainant was running an industry in the name of M/s. Nandini Modulars. The accused gave an undertaking to the complainant that he will discharge the amount of Rs.13, 58,921/- within 15 days and also issued four cheques as security to the said loan amount in favour of the complainant which when presented in bank were dishonoured due to ‘funds insufficient’. Hence, various legal notices were issued from time to time to make payment, but the accused did not comply with the notices. Hence, a complaint was filed wherein the Trial Court after considering both the oral and documentary evidence, convicted the petitioners. Aggrieved by which, an appeal was preferred before the Appellate Court and a contention was raised regarding the complaint being barred by limitation and no application was filed before the Trial Court and thus the very initiation of the proceeding against the petitioners is erroneous and an error has been committed in convicting the petitioners. The Appellate Court dismissed in view of the delay and remanded the matter to consider the same afresh by giving an opportunity to the complainant to file necessary application for condonation of delay and directed the Trial Court to decide the application first and thereafter proceed with the matter as per and consequently, set aside the order of conviction and sentence passed by the Trial Court. Hence, the present revision petition was filed before this Court.

Counsel for petitioner Mr. Chethan AC submitted that the order passed by the Appellate Court in setting aside the judgment of the Trial Court and remanding the matter to consider afresh giving an opportunity to file an application for condonation of delay is not permissible under law and hence, it requires interference of this Court and set aside the order of remand and direct the Appellate Court to consider the matter on merits with regard to the conviction and sentence order passed for the offence punishable under Section 138 of Negotiable Instruments Act i.e. N.I. Act by the Trial Court.

Counsel for respondent Mr. Ramesh P Kulkarni submitted that no application is filed before the Trial Court for condonation of delay and the Trial Court after confirming the same on perusal of the entire order sheet gave an opportunity since for the first time, the question of delay is raised in the Appellate Court. Hence, the Appellate Court has not committed any error in setting aside the judgment of conviction and sentence and remitting the matter for fresh consideration and in giving an opportunity to file the application.

The Court observed that admittedly no application was filed before the Trial Court along with the complaint for condonation of delay. The material discloses that there is a delay of seven days in filling the complaint. It is not in dispute that the proviso is made in N.I. Act under Section 142(b) to condone the delay, if any, in filing the complaint. On perusal of the order of the Appellate Court, it is clear that an application is filed before the Appellate Court and also it is not in dispute that the delay aspect has been raised for the first time before the Appellate Court and no such defence was taken before the Trial Court. If delay is noticed, the Trial Court can even call upon the complainant to file an application for condonation of delay.

The Court remarked that an amendment is brought in the year 2003 to Section 142 and clause (b) was inserted keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. The Court has to take note of the wisdom of the legislature in bringing such an amendment and when the issue is raised for the first time in the appeal, the Court has to take note of all these factors into consideration. When the issue of limitation was raised before the Appellate Court, immediately the complainant filed an application before the Appellate Court for condonation of delay and the Appellate Court concluded that the delay cannot be considered in Appellate Court usurping the powers of the Trial Court and the same has to be dealt with by the Trial Court and the same is in accordance with the judgment of the Appellate Court.

The Court has to take note of the very proviso of Section 142(b) of the N.I. Act which confers jurisdiction upon the Court to condone the delay i.e. original Court or otherwise the very purpose and wisdom of the parliament would be defeated. The issue of limitation for the first time is raised before the Appellate Court and the Court exercising the discretion to condone the delay did not arise at all before the Trial Court.

The Court thus held “I am of the opinion that the Appellate Court has not committed any error in setting aside the judgment and directing the complainant to file necessary application to condone the delay and the Trial Court by giving an opportunity to the petitioners to consider the said application.”

[A Seating v. Nandini Modulars, 2022 SCC OnLine Kar 725, decided on 08-04-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Tis-hazari
Case BriefsDistrict Court

Tis Hazari Court, Delhi: Sanjay Sharma-II, ASJ-03, termination of service does not mean that husband is incapable of finding another employment and the said would not absolve him from his responsibility to maintain the wife.

Criminal Appeal under Section 29 of the Protection of Women from Domestic Act, 2005 was directed against the order, in complaint case, whereby trial court directed the appellant to pay interim maintenance of Rs 5,133 per month to the respondent from the date of filing of present petition till its final disposal.

Factual Matrix

The complainant filed an application under Section 12 of the Act against the appellant and his family members alongwith an application under Section 23 of the Act for interim maintenance on the averments that complainant was married with the appellant.

Complainant alleged that she was subjected to physical and mental cruelty for bringing insufficient dowry. In October, 2013, the complainant left the shared household.

Further, the complainant’s case was that the appellant was earning more than Rs 50,000 per month and the appellant was living a luxurious life. The complainant is now residing with her parents.

Analysis and Discussion

“It is trite to state that it is the moral and legal obligation of the appellant to maintain his wife and provide her same comforts commensurate to his status and standard of living.” 

As per the affidavit of assets, income and expenditure filed by the appellant it was clear that the appellant was a graduate ad an experienced photographer.

The fact that the appellant was unemployed would not absolve him from his responsibility to maintain the complainant.

Further, the Court observed that, Termination of service does not mean that the appellant is incapable of finding another employment or work.

In the above mentioned affidavit, the appellant stated that his expenses were around Rs 5,600 per month and he had shown his mother as his dependent, though he did not explain the source of his income.

The appellant is a graduate. He is able-bodied and experienced photographer. He is residing in an ancestral home in a posh colony of Delhi. He is not suffering from any physical disability preventing him from doing any work. He cannot shrink his responsibility regarding interim maintenance towards the complainant by pleading unemployment, Court expressed.

Conclusion

The Bench found no reason to interfere with the impugned order awarding a meagre amount to interim maintenance of Rs 5,133 per month to the wife.[Pawan Deep Singh v. Jaspreet Kaur, Criminal Appeal No. 107 of 2021, decided on 5-2-2022]


Advocates before the Court:

Mr. Rajesh Bhatia, Advocate with the appellant.

Ms. Monika Sharma, Advocate with the respondent.

Case BriefsHigh Courts

Bombay High Court: Shrikant D. Kulkarni, J., decides whether the trial court’s decision mentioning the wrong provision pertaining to maintenance to the wife will be defective in the eye of law or not.

The decision of Civil Judge, Senior Division at Latur has been challenged in the instant second appeal with regard to the extent of quantum of maintenance at the hands of District Judge.

Respondent/original plaintiff had filed a suit for maintenance against her husband/appellant by taking aid of Mohamedan Law.

The Judge had awarded maintenance to respondent/wife at Rs 3000 per month but being aggrieved by the same, the respondent/wife preferred an appeal before the District Court at Latur by taking the aid of Section 96 of the Code of Civil Procedure.

District Court enhanced the maintenance amount from Rs 3,000 to Rs 5,000.

Appellant/Original defendant approached this Court by way of second appeal in view of Section 100 of the Code of the Civil Procedure.

Counsel for the appellant submitted that the core issue in the present matter was not properly adjudicated and as such, the appeal needed to be admitted and during the pendency of this appeal, the impugned judgment and decree passed by the courts below need to be stayed including the execution proceedings.

Analysis, Law and Decision

High Court first dealt with the issue regarding incorrect mentioning of the provision of the Compendium of Islamic Law.

Bench stated that the trial court erred while mentioning the provision of Clause 180 of the Mahomedan Law regarding the enhancement of maintenance. Clause 180 of the Mahomedan Law pertains to wakf’s objects partly valid and partly invalid, it is not related to the Maintainance of a wife.

Whether the Judgment can be said to be defective in the eye of the law because of incorrect clause of Mahomedan Law mentioned? 

Bench answered stating ‘no’. Reasoning its decision, Court stated that the judgment of the trial court needs to be read as a whole in order to gather whether it was a suit for maintenance filed by the wife against her husband under the provisions of the Mahomedan Law and what are the findings recorded by the trial Court. Whether the trial Court has applied its judicial mind having regard to the facts of the case and evidence on record. That exercise is more important. The judgment cannot be said to be void only because the trial Court has mentioned incorrect provision while delivering the judgment.

Further, the Court observed that Clause 277

speaks about the husbands duty to maintain his wife, it provides that it is the duty of the husband to maintain his wife unless she is too young for matrimonial intercourse and so long as she is faithful to her husband and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to her husband or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower or she leaves the husband’s house on account of his cruelty. 

Hence, in view of the above-stated provision, it is the duty of the husband to maintain his wife.

Clause 278 of the Mahomedan Law provides that

 if the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on specific agreement. Or she may apply for an order of maintenance under the provisions of the Code of Civil Procedure, 1908, Section 488, in which case the court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees.

In view of the above discussion, it was clear that there are provisions under the Mahomedan Law for awarding maintenance to the wives.

Court expressed that there were concurrent findings of the two courts below and in view of the scheme of the second appeal provided by Section 100 of the Code of Civil Procedure, interference was permissible only in case of perversity in the findings and gross misappropriation of evidence causing injustice.

In Court’s opinion, the amount fixed by the District Court was reasonable and no substantial question of law was raised in the present appeal. [Khurshid Chandsab Shaikh v. Bibi, 2021 SCC OnLine Bom 5381, decided on 13-12-2021]


Advocates before the Court:

Mr Gaurav L. Deshpande, Advocate for the Appellant

Case BriefsSupreme Court

Supreme Court:  Reminding the Courts of the importance of hierarchy of Courts, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that the Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.

“Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance.”

Factual Background

In the present case, it was alleged that both the accused carried three weapons, waylaid the deceased at a signal in a main road at about 5 p.m. and after the initial attack, dragged him to the pavement, and thereafter inflicted multiple injuries.

PW-1, who saw the occurrence from a fair distance, was known to the deceased and the deceased, who had his intestine coming out, told him the story implicating the accused.

The Deceased was taken to a hospital run by PW-25, a doctor very well known to PW-1. This hospital which was about two kilometres from the place of occurrence, while another nursing home was in existence at about 50 meters.

PW-25 gave treatment to the deceased at about 5.05 p.m. He died of multiple injuries caused by haemorrhage at about 5.45 p.m. About 40 days thereafter, at the request of the police, PW-25 gave another certificate introducing adequate material to indicate that there was a dying declaration.

Before the trial court, the prosecution examined as many as 28 witnesses. Most of the witnesses pertaining to conspiracy, occurrence, recovery and extraordinary judicial confession turned hostile.

On behalf of the defence, a doctor was examined to show that considering the nature of the injuries suffered, the death must have been instantaneous.

The Court of Sessions without exception, threadbare considered all the materials including the witnesses who turned hostile. After due scrutiny, benefit of doubt was extended in favour of the appellants.

The Karnataka High Court, however, did not consider the entire evidence as discussed by the trial court and the judgment of the trial court was reversed and conviction was rendered sentencing the appellants for life.

Duty of appellate Courts

It is pertinent to note that Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence.

However, at times, courts do have their constraints. Sometimes different decisions are being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other.

Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. However, the Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. The Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

“The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform.”

Hence, indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.

Ruling

The Supreme Court found it unnecessary on the part of the High Court to make strong comments on the judgment written by the trial court.

It noticed that,

  • The trial court took enormous pains in considering the evidence of all the witnesses one by one and gave exhaustive reasoning for its ultimate conclusion.
  • The dying declaration was put forth by the prosecution through the mouth of PWs 1, 2 and 25. When the evidence let in by them was found to not be trustworthy, there cannot be any dying declaration either in fact or in law.

The evidence of PW-25 had no existence of dying declaration in it. He had deposed that he did not remember whether the deceased told him that the accused attacked him and caused injuries. He later testified that he had given put forth the dying declaration due to the persistence of the police.

“It rendered a conviction on mere surmise, even though an inference can never be the basis of a conviction when the testimony of a witness is not believed on cogent reasoning.”

  • The alleged occurrence was said to have happened at about 5 p.m. on a busy road with heavy traffic and even the evidence of PW-1 and PW2 suggests that there were about 1000 persons.
  • The defence also examined a Government doctor, an expert in the field of surgery, who had clearly deposed that it would be impossible for the deceased to be conscious after suffering injuries such as intestines coming out.

The Court wondered how the various reasons given by the trial court were found unacceptable by the High Court especially when it did not consider the evidence of the other witnesses.

It was, hence, held that the High Court did not undertake the exercise as mandated under Section 378 read with Section 384 CrPC in reversing the reasoned decision rendered by the trial court. Consequently, the orders of conviction passed by the High Court was set aside.

[Mohan v. State of Karnataka, 2021 SCC OnLine SC 1233, decided on 13.12.2021]


*Judgment by: Justice MM Sundresh

Saket Court
Case BriefsDistrict Court

Saket Courts, New Delhi: Anuj Agrawal, Additional Sessions Judge, dismissed an appeal filed by the husband against the order of the trial court granting maintenance to the wife.

Factual Background

A complaint was filed under Section 12 of the Domestic Violence Act by the respondent/complaint stating that she was subjected to domestic violence by the husband as well as his other family members. Respondent added that she had been sustaining herself with great hardships and thus, she claimed monetary relief from the husband.

Trial Court had also granted maintenance. Appellants was aggrieved with the said order.

Analysis, Law and Decision

Settled Law:

Serious disputed questions of fact (requiring evidence) cannot be gone into at the time of deciding an application for grant of interim maintenance and as the same can only be decided during course of trial after-parties lead their respective evidence.

In the instant matter, respondent made allegations of she being subjected to domestic violence, a prima facie case for domestic violence was made out.

Court stated that it will decide the legality of award of interim maintenance.

“…while fixing an interim maintenance, court has to take a prima facie view of the matter and need not to critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same, the evidence would be required.”

 Bench expressed that an aggrieved person cannot be rendered to lead a life of a destitute till the completion of the trial.

No income affidavit came to be filed by the appellant/husband before the trial court, therefore, trial court was left with no option but to make guesswork regarding the monthly income of the husband. Hence, Trial Court’s approach cannot be faulted.

In the present appeal, the appellant/husband did not dispute his monthly income. Therefore, there was no infirmity with the order of Trial Court whereby monthly income of appellant/husband was assessed as Rs 35,000/-.

Therefore, the interim maintenance to the respondent/wife has to be commensurate with the income of husband.

Principle of apportionment has been reiterated by Delhi High Court in Nitin Sharma v. Sunita Sharma, 2021 SCC OnLine Del 694.

Appellant’s contention that no Domestic Incident Report was called by Trial Court is also without merit as it was evident from Trial Court record same was duly called from Protection Officer concerned.

Settled Law:

A Magistrate, when petitioned under Section 12 (1) of the Act, is not obliged to call for a domestic incident report before issuing notice to respondent.

Court relied on the decision of Delhi High Court in Shambhu Prasad Singh v. Manjari, 2012 SCC OnLine Del 1371

Hence, no merit was found in the instant appeal. [Anjan Kumar Sahoo v. Kamla Sahoo, Criminal Appeal No. 444 of 2017, decided on 21-10-2021]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Noticing discrepancies in the Trial the Division Bench of Ashwani Kumar Singh and Anil Kumar Sinha, JJ., acquitted a woman accused of killing a 2 year old kid.

The appellant was alleged to have killed 2 year old child of the defendant whose body was found rolled in a gendra (a locally made mattress of textile in Bihar) and a plastic bag. The whole case of prosecution was based on circumstantial evidence, i.e., gendra in question belonged to the accused, frequent quarrel between accused and parents of the deceased, sniffer dog going to the house of the accused etc. The Trial Court found the accused guilty and convicted him for the offences punishable under Sections 302 and 201 of Penal Code, 1860.

Was admission made by son of the accused admissible?

Regarding the confession made by the son of the appellant was concerned, wherein he had, while in custody of IO, admitted that his mother had killed the victim boy, the Bench stated that statements made by an accused before the police amounts to confession are barred under Section 25 of the Evidence Act, 1872 and an extra-judicial confession by itself is a very weak type of evidence.

Can a person be convicted of a crime based on the evidence gathered by the police sniffer dog?

Noticing that the Trial Court had convicted the appellant on the evidence of a sniffer dog, the Bench opined, though the police was allowed to use the services of a sniffer dog for investigation, but merely because the dog entered the house of the appellant in her absence, the same could not be treated to be evidence sufficient enough to establish the guilt of the appellant and the appellant could not be convicted only on the basis of evidence gathered by the police sniffer dog.

Moreover, the circumstance that the sniffer dog entered the house of the appellant after smelling the place where the body of the deceased was thrown was not brought to the notice of the appellant while examining her by the Trial Court under Section 313 of the CrPC. Hence, the said circumstance could not have been taken into consideration as the accused was not granted opportunity to explain the circumstances. The Bench said,

If the questions on incriminating circumstances have been ignored by the trial court, then it is an illegality and amounts to an abuse of the process of Court.

Hence, circumstances which were never put to the appellant while examining her under Section 313 of the CrPC could not have been used for convicting and sentencing her.

Findings and Conclusion

Opining that to sustain a conviction on circumstantial evidence, the factual circumstances should be so established and only inference to the said circumstances must be that of the guilt of the accused, incompatible with any other hypothesis, the Bench took note that the gendra, which was seized by the police was never put before the Magistrate for an identification parade. Moreover, the Bench remarked, “gendra is a common item which is found in every house.”

Hence, holding that there was no cogent evidence to suggest that the gendra in which the body of the deceased was rolled belonged to the appellant, the Bench opined that the prosecution had miserably failed to prove each of the links in the chain of circumstances beyond reasonable doubts against the appellant.

Accordingly, the Trial Court’s order was set aside and the appellant was acquitted of the charges levelled against her. [Soni Devi v. State of Bihar, 2021 SCC OnLine Pat 2289, decided on 15-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:

For the Appellant: Anirudh Kumar Sinha, Advocate and Santosh Kumar, Advocate

For the Respondent-State: Ajay Mishra, APP

Case BriefsSupreme Court

Supreme Court: A 3-Judge Bench of N.V. Ramana, CJI and A.S. Bopanna and Hrishikesh Roy, JJ. upheld the judgment of the Madras High Court passed in a second appeal whereby it had reversed the order of the first appellate court granting injunction in favour of the appellant−plaintiff in a property dispute. Rejecting the contentions of the appellant regarding propriety of High Court’s exercise of jurisdiction in second appeal under Section 100 CPC, the Supreme Court observed:

“[M]erely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated.”

The Supreme Court was deciding an appeal filed against the judgment of the Madras High Court passed in the second appeal preferred by the respondent−defendant. The plaintiff had filed an original suit seeking perpetual injunction to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit property. The plaintiff claimed that he had been enjoying the suit property for a period of forty years by paying kist. The defendant disputed the right claimed over the suit property by the plaintiff.

The trial court dismissed the suit. The plaintiff preferred a regular first appeal under Section 96 CPC before the first appellant court. Placing much reliance on the kist receipts produced by him, the first appellate court concluded that the plaintiff was in possession of the suit property. Thereafter, the defendant filed a second appeal under Section 100 CPC before the High Court. The High Court framed a substantial question of law, as to whether the suit without the prayer for declaration is maintainable when especially the title of the plaintiff is disputed. Having taken note of rival contentions, the High Court concluded that the substantial question of law had substance, and therefore set aside the judgment of the first appellate court. Aggrieved, the plaintiff approached the Supreme Court.

The appellant contended that the parameter for interference by the High Court in the second appeal under Section 100 CPC is well established and the High Court cannot travel beyond the same and advert to reappreciate the evidence on factual aspects. It was contended that when the first appellate court, which was the last court for appreciated of facts, had recorded its finding, the same could not be interfered by the High Court on reappreciation of evidence.

Summarising the legal position on the subject, the Supreme Court reasserted the position that in a second appeal under Section 100 CPC there is very limited scope for reappreciating the evidence or interfering with findings of fact rendered by trial court or the first appellate court, and therefore it was necessary to see whether the High Court in the instant case breached the settled principle.

The Supreme Court noted that the findings by the trial court and the first appellate court were divergent. The trial court concluded that the kist receipts would not establish plaintiff’s possession, whereas the first appellate court in fact placed heavy reliance solely on the kist receipts. The Court observed:

“When such divergent findings on fact were available before the High Court in an appeal under Section 100 CPC though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings recorded by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved.”

The Court said that question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula.

Even otherwise, the Supreme Court found that the plaintiff’s possession of the suit property was not established. Further, the Court was of the view that the first appellate court misdirected itself and proceeded at a tangent by placing burden on the defendant.

In such view of the matter, the Supreme Court held that it would not be appropriate to interfere with the judgment of the High Court which was in consonance with the fact situation in the case. The appeal was dismissed. [Balasubramanian v. M. Arockiasamy, 2021 SCC OnLine SC 655, decided on 2-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., expressed that,

Key characteristic of thumb impression is that every person has a unique thumb impression. Forgery of thumb impressions is nearly impossible. 

Merely because the testator chose to append his thumb impression, adverse presumption on genuineness of the cancellation deed cannot be drawn.

Instant appeal arose out of the decision of the Patna High Court whereby the appeal filed by the probate applicant was allowed in his favour by concluding that the Will favouring Sarjug Singh was not cancelled. Hence the appellate Court reversed the trial court’s decision which held that the applicant was disentitled to get the Will probated as the same was revoked.

High Court disbelieved the registered deed of cancellation dated 2-2-196 (Exbt C) whereby, the Exbt 2 Will, was revoked by the testator. 

Factual Matrix

Rajendra Singh (since deceased) executed a Will on 14-09-1960 in favour of the applicant Sarjung Singh.

The executant died issueless leaving behind his sister Duler Kuer, wife of Thakur Prasad Singh and nephew Yugal Kishore Singh and also the probate applicant Sarjug Singh.

Applicant’s case was that the testator’s wife died long ago and therefore Rajendra Singh who was issueless bequeathed his property in village Pojhi Bujurg and Pojhi Kapoor, District Saran, Bihar by executing the Will favouring respondent Sarjug Singh (since deceased).

It is relevant to state that the validity of the Will in favour of the applicant Sarjug Singh was never seriously challenged but the objectors pleaded that the concerned Will was cancelled by a registered deed on 02-02-1963 (Exbt. C) by the testator himself. The applicant however claims that the testator was in very poor health, paralytic and was not in a position to attend the Sub­Registrar’s office on 02-02-1963 to execute the registered cancellation deed (Ext. ‘C’). The applicant also challenged the genuineness of the testator’s thumb impression on the cancellation deed of the Will.

High Court addressed the core issue of whether the testator had cancelled the Will. High Court granted the probate and reversed the finding of the Trial Court. Subsequent purchasers of the assets who supported the objector’s case in the probate proceedings, have then filed the present appeal.

Analysis, Law and Discussion

Bench stated that the merit of claim of either party in the present matter will hinge around the core issue as to Whether Rajendra Singh had actually revoked the Will in favour of Sarjung Singh and his physical and mental capacity to execute the Cancellation Deed and also whether thumb impression of Rajendra Singh on the registered document is genuine or not.

 Further, it was noted that in allowing the appeal of the probate applicant, the High Court referred to the health condition of Rajendra Singh who suffered from paralysis before his death and had opined that it would not be possible for the testator to visit the sub-registrar’s office, to cancel the Will.

Bench stated that the High Court failed to give due weightage to the evidence that led to the genuineness of the cancellation deed. Instead, erroneous presumption was drawn on impersonation and incapability of the testator, to visit the office of the sub-registrar to register the cancellation deed.

Testator’s thumb impression on the cancellation deed

On the stated issue, all the four deeds executed by Rajendra Singh in his lifetime, contained his thumb impression and not his signature. Therefore, adverse presumption on genuineness of the cancellation deed cannot be drawn merely because the testator chose to append his thumb impression.

Further, the handwriting report clearly indicated that the thumb impression on all the documents placed before the expert’s opinion were of the same person i.e. of Rajendra Singh. Since the said Ext. B was marked in Court, without objection from the applicant, the genuineness of the same cannot be allowed to be questioned before the appellate Court.

In Court’s opinion, a contrary inference was erroneously drawn by the High Court by referring to the health condition of the testator, when the revocation deed was registered.

Supreme Court held that genuineness of the Cancellation deed cannot be doubted only due to the fact that same was not signed and Rajendra as a literate person, affixed his thumb impression.

Implication of the conduct of the objectors, who did not produce the original deed of cancellation

Bench analysed and stated that objectors failed to take any steps to produce the original deed of cancellation. On the said, probate applicant neither objected to production of certified copy nor insisted on production of the original cancellation deed.

In view of the above scenario, where no protest was registered by the probate applicant against production of certified copy of the Cancellation Deed, he cannot later be allowed to take up the plea of non-production of original cancellation deed in course of the appellate proceeding.

Mode of Proof

Supreme Court made it clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage.

Reasoning for the above was to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side.

Hence, allowing objection as stated above to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy and would seriously prejudice the interests of that party.

Adding to the above, it was emphasized that it would also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E Venkatachala

While reaching the conclusion, Court opined that the High Court had erred by ignoring the material evidence in disbelieving the cancellation deed and on that score declaring that the applicant was entitled to grant of probate of the Will.

Given the fact that Probate applicant never raised any objection regarding the mode of proof before the trial court, there was no occasion for the High Court to say that it was the duty of defendant to produce original deed of cancellation.

Lastly, the Bench expressed that Trial Court was right in holding that Rajendra was medically fit and had cancelled the Will himself. It was also seen that the evidences of the relevant OWs withstood the scrutiny of the trial court and those remained unshaken and should be trusted.

Considering the omission of the probate applicants to raise objection regarding mode of proof before the trial court, merit was found in the case of the objectors.

In view of the above discussion, present appeal was allowed., while setting aside the impugned order of the Delhi High Court. [Lacchmi Narain Singh (D) v. Sarjug Singh (Dead), 2021 SCC OnLine SC 606, decided on 17-08-2021]

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., decided a matter concerning dishonour of cheque.

Petitioner had filed a suit for recovery of Rs 1,65, 75,000 under Order XXXVII of the Code of Civil Procedure, 1908.

Background

Managing Director and other Directors of the respondent/defendant persuaded the petitioner/plaintiff to give friendly loans at an interest @18% per annum. Petitioner and his wife gave Rs 18,00,000 from the bank account to Hari Om Anand as the Managing Director of the respondent/defendant.

At the request of Hari Om Anand, the petitioner/plaintiff also started looking after the legal consultation work of the respondent/defendant and the Managing Director and other Directors. Subsequently, the petitioner/plaintiff gave another friendly loan of Rs 3,20,00,000 from his bank account to Hari Om Anand and continued to take care of the legal work.

Further, Petitioner/Plaintiff submitted that 6 cheques were issued by Hari Om Anand. The said cheques were dishonoured on presentation due to insufficient funds. The petitioner/plaintiff filed a criminal case under Section 138 NI Act.

The above was preceded by a notice to which no reply was sent.

In an appearance respondent/defendant offered to furnish a corporate guarantee duly signed by the Managing Director and duly authorized by the Board Resolution relating to immovable properties, for securing the suit amount and the restrain order was filed.

Present petition was filed against two orders of the trial court.

Vide an Order dated 28-7-2020, this Court observed that the trial Court had erred in not securing the amount of Rs 1.5 crores as directed in the order dated 24-12-2019 and ought to have asked the respondent/defendant to submit documents of a property of which the title was clear or a bank certificate recording a no objection to the creation of a second charge on the property to the extent of Rs 1.5 crores ought to have been furnished.

Vide orders dated 4-12-2020, this Court had after noting the letter of the Punjab National Bank, Gymkhana Branch, Meerut, U.P. that a lien had been created in the sum of Rs 1.50 crores, directed that the said amount of Rs 1.50 crores be deposited in an interest-bearing fixed deposit. This FDR had since been deposited in the Registry of this Court as was noted in the orders of this Court dated 5-03-2021 and 8-03-2021

Further, the petitioner’s counsel submitted that trial court had wrongly granted leave to defend the respondent in a case where the respondent/defendant had raised no triable issues.

Adding to the above, it was stated that trial court had proceeded in a wrong direction as the loan transactions between the petitioner/plaintiff and the respondent/defendant were different transactions and had nothing to do with the payment of Rs.1.50 crores, which was towards the legal fees of the petitioner/plaintiff and for which the invoice had been raised.

There was no dispute in that the petitioner/plaintiff had acted as a legal advisor to the respondent/defendant.

There was no document to establish a lawyer-client relationship, no retainership agreement had been filed and therefore, the claim of the petitioner/plaintiff was suspicious that he was entitled to a sum of Rs 1.50 crores towards such legal assistance.

As regards the question whether leave to defend has been rightly granted to the respondent/defendant or not, the facts that prevailed upon before the learned Trial Court were that the petitioner/plaintiff himself has referred to loans having been given to the respondent/defendant by way of bank transfer.

When the respondent/defendant had challenged the claim of the petitioner/plaintiff that he had acted as legal advisor to them and, therefore, the invoice raised was for a fee, this fact too would have to be proved.

In application for leave to defend, the respondent/defendant it was averred that the petitioner/plaintiff had claimed to have been providing legal assistance to the respondent/defendant since the year 2000.

With respect to the submissions made by the counsel for the petitioner/plaintiff, on taking cognizance of an offence by the MM under Section 138 of the N.I. Act automatically a decree against the respondent/defendant should follow, cannot be accepted, as cognizance leads to trial and the accused can also get acquitted.

Secondly, on the one hand, the petitioner/plaintiff claims that the cheques were towards loans which were separate transactions and on the other hand, wants this Court to draw conclusions on that basis, that the signatures on the cheques were admitted and the MM had taken cognizance of the case to decree this suit.

Bench stated that in light of the above submissions, it is indeed a matter of trial as to what was the liability of the respondent/defendant towards the petitioner/plaintiff and towards what transaction or service rendered by the petitioner/plaintiff, that is, as a lender or as a legal advisor, would he be entitled to the suit amount.

High Court held that the Trial Court was right in observing that the defence taken was not moonshine and disclosed triable issues which required inquiry. Leave to defend had to be granted in the light of these varying stands taken by the petitioner/plaintiff in different proceedings.

in the light of the previous orders of this Court and the deposit of the FDR for a sum of Rs.1.5 crores with the Registry of this Court, the leave to defend granted to the respondent/defendant is not unconditional and does not work to the disadvantage of the petitioner/plaintiff.

In view of the above, petition was dismissed. [Sarvesh Bisaria v. Anand Nirog Dham Hospital (P) Ltd., 2021 SCC OnLine Del 3859, decided on 30-7-2021]


Advocates before the Court:

For the Petitioner; Vivek Kumar Tandon, Advocate

For the Respondent: Sanchit Garga, Advocate

Case BriefsHigh Courts

Allahabad High Court: Vivek Varma, J., held that factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done by the trial court.

In the instant matter, OP had filed a complaint under Section 138 of the Negotiable Instruments Act against the applicant as the cheques issued by the applicant was returned by the bank with the remark “fund insufficient”.

A legal notice in view of the above-stated circumstances was sent. There is a presumption of service of the said notice and despite service of notice, the applicant did not make any payment nor sent any reply.

Analysis, Law and Decision

Bench stated that Section 138 NI Act was considered by the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, wherein the presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act was enunciated.

The above-stated case was followed by the Supreme Court in Ajeet Seeds Limited v. K. Gopala Krishnaiah, (2014) 12 SCC 685 and held that absence of averments in the complaint about service of notice upon the accused’s is the matter of evidence.

Noting the settled legal position in the above cases, Bench expressed that the complaint cannot be thrown at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. Complaint, however, must contain basic facts regarding the mode and manner of issuance of notice to the drawer of the cheque.

Supreme Court’s decision in Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689, was relevant to the present matter.

High Court elaborated that, notice being sent on 19-09-2012, if the presumption of service of notice within a reasonable time is raised, shall be deemed to have been served, at the best within a period of 30 days from the date of issuance. Applicant was required to make payment in terms of the said notice within 15 days thereafter.

The factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court and not by this Court under the jurisdiction conferred by Section 482 CrPC.

However, since the complaint case was pending since the year 2014, as per the mandate of the Act the proceedings under Section 138 NI Act ought to be concluded within 6 months.

Hence, the Court below was directed to expedite the hearing of the complaint case. [Anil Kumar Goel v. State of U.P., 2021 SCC OnLine All 410, decided on 7-06-2021]


Advocates before the Court:

Counsel for Applicant:- Anand Prakash Dubey, Pradeep Kumar Rai, Saurabh Trivedi

Counsel for Opposite Party:- Govt. Advocate Vikrant Rana

Case BriefsDistrict Court

District and Sessions Court at Panaji: After a trial which went on for 7 years 2 months and 25 days, Kshama M. Joshi, Additional Sessions Judge, Mapusa, acquitted Tarun Tejpal, former Editor-in-Chief of Tehelka, who was accused of committing rape on a journalist working with Tehelka. The court gave benefit of doubt to accused, noting major lapses in investigation and major contradictions/improvements in testimony of the prosecutirx. The incident is of 2013 which allegedly happened during the annual THiNK Fest of Tehelka organised in Goa.

Allegations against the accused

The prosecution’s case was that between 7th and 11th November, 2013 the THiNK Fest was organised by Tehelka Magazine in Goa. It is alleged that during that fest, Tarun Tejpal, the then Editor-in-Chief of Tehelka, had sexually assaulted a female journalist associated with the magazine. It is alleged that he committed the offence of wrongful restraint/confinement, sexual harassment and rape.

The prosecutrix had alleged that on 7-11-2013 (one of the nights of the event) on the pretext of “waking up the American actor Robert De Niro” (the Chief Guest at the festival, for whom the prosecutrix was chaperoning), the accused took her to one of the guest lifts of Hotel Grand Hyatt where he wrongfully confined the prosecutrix using force against her wish and committed rape on her. Further, on the next night of 8-11-2013, the accused took her to another guest lift and again sexually assaulted her.

On completion of police inquiry, the trial court framed charges against the accused of offences punishable under Sections 354, 354-A, 354-B, 376(2)(f), 376(2)(k), 341 and 342 IPC.

Defence of the accused

Case of the accused was of total denial. He submitted that no such incident as alleged took place and that there was a drunken banter between him and the prosecutrix.

Trial Court’s decision

The Additional Sessions Judge of the District and Sessions Court at Panaji determined as many as six questions to return a finding of Not Guilty in favour of the accused. The court answered five out the six questions in favour of the accused:

(a) Whether accused committed rape as defined in Section 375(b) and (d) IPC?

Answered in negative, in favour of the accused.

(b) Whether accused used criminal force to outrage modesty of the prosecutrix?

Answered in negative, in favour of the accused.

(c) Whether accused had physical contact and made advances involving sexual overtures causing sexual harassment to the prosecutrix?

Answered in negative, in favour of the accused.

(d) Whether accused used criminal force with intention of disrobing the prosecutrix?

Answered in negative, in favour of the accused.

(e) Whether accused was in a position of trust or authority and in a position of control or dominance over the prosecutrix?

Answered in positive, against the accused.

(f) Whether the prosecutrix was wrongfully confined in the lift by the accused?

Answered in negative, in favour of the accused.

Law and Analysis (reasons given by the court)

1. Burden of proof

At the very outset, the court recorded that the burden is on the prosecution to prove beyond reasonable doubt that the accused committed the offences as charged, and that burden does not shift.

2. Victim’s testimony in a rape trial and its probative value

The court noted the settled position of law that the conviction of the accused in cases of rape or sexual harassment can be based on the sole testimony of the victim if the court finds that her deposition is of sterling quality which inspires confidence and is absolutely trustworthy, and that immoral character or previous sexual experiences of the victim is not relevant for deciding such cases.

After this, the court noted that the victim is well educated, a journalist well conversant with amendments to IPC after Nirbhaya’s case and who has dealt with issues relating to offences against women including rape and sexual assaults. Based on deposition of prosecution witnesses, it was noted that the prosecutrix is extremely capable, intelligent and independent person.

2.1. Possibility of doctoring of events with help of experts

According to the court, there are many facts on record which create doubt on truthfulness of the prosecutrix. There was a delay in lodging FIR and the prosecutrix refused to go for medical examination. She was in touch with lawyers even prior to drafting the complaint and sending to the Managing Editor of Tehelka. It has been recorded by the court that “Advocate Rebecca John“, among others, was guiding the prosecutrix about the course of action. It is also recorded that the prosecutrix was in contact with “Advocate Indira Jaisingh” (who is a friend of stepmother of the prosecutrix and whose number is saved by the name of Brahmastra).

The court, after discussing as above, concluded that:

“With the help of experts, there may be a possibility of doctoring of events or adding of incidents. Advocate for the accused has this rightly submitted that the deposition of the prosecutrix has to be scrutinised in that angle.”  

2.2. CCTV footage

After recording the horrific details provided by the prosecutrix about all that took place inside the lift of Hotel Grand Hyatt on the night of 7-11-2013, the court recorded that:

The CCTV footage does not support the statement that she was in shock or trauma and blinking in tears.

2.3. False/inconsistent statements

Based on her statement regarding her complaint on a previous occasion sometime in 2012 when she along with her friends was allegedly molested by a police officer, the court further recorded that:

“[Prosecutrix] states that she did not approach the police immediately after the first incident [at the THiNK Fest 2013] as she was too afraid of the police which show that the victim is making a false statement that she is afraid of the police which is clear from the incident narrated by her which took place in Delhi against the police officer.”

The court also concluded that the prosecutrix had made inconsistent statements. Scrutiny of evidence of the prosecutrix, according to the court, revealed several discrepancies/changes in her version, each constituting either material omissions and contradictions or improvements in her original narrative which was given and continually shifting details of the account she had proffered.   The court was also of the view that the CCTV footage did not support her statements.

2.4. Preparing a strong case

Noting that the prosecutrix pressured the Managing Editor of Tehelka to submit an apology on her terms on a claim that it would bring closure to the incident, the court formed an opinion that:

“However, the WhatsApp records show the [the prosecutrix] had already enlisted a battery of friends and networks to release such material on social media the moment the apology reached her. It is evident that the prosecutrix obtained apologies of accused from [the Managing Editor] in support of her accusation before the prosecutrix went public.”

3. Flirtatious and sexual conversations

Referring to WhatsApp messages between the accused and the prosecutrix, the court concluded that she did not contradict that both of them were drunk and it was nothing but a drunken banter, as suggested by the accused. This non-denial by the prosecutrix of the accused’s assertion gave adverse inference against her.

The accused in his defence stated that in fact it was the prosecutrix who was talking about her intimate escapades with Bob Geldof, Irish singer and a former speaker at THiNK 2012,  and also that how she was attracted towards the accused.

The court noted that:

“… thousands of her WhatsApp chats … provide a glaring proof of the prosecutrix’s conversations with a wide range of people. … The messaging record shows that it was entirely in the norm for the prosecutrix to have such flirtatious and sexual conversations with friends and acquaintances.”

Therefore, concluded that court, that her chats and her propensity to indulge in sexual conversations with friends and acquaintances, as well as her admission that the accused was talking about sex or desire, proves that the accused and the prosecutrix had a flirtatious conversation on the night of 7-11-2013.

4. Lying about intimate relationships

The court referred to the prosecutrix’s statement which, according to the court, was a brazen attempt at concealing her highly intimate and candid relationship with one N, a defence witness. Her chats with N, as also N‘s own statement, revealed that they were close friends and have had an intimate relationship.

The court here clarified that such evidence/chats were referred not for the purpose of proving her character but only to show that she was lying and that she twists and manipulates truth as she did by significantly understating the intimacy of her relationship with N. According to the court, it was difficult to believe that the prosecutrix is a truthful and reliable witness,

5. Evidence of N

The court extensively referred to the evidence given by N, prosecutrix’s friend and a defence witness, which contradicted the evidence of prosecutrix in material particulars. N was the first person who the prosecutrix met after the incident, but the investigation officer failed to record his statement nor investigate him. Hence, in court’s opinion, the evidence of N was relevant and admissible under Section 6 (facts forming part of same transaction) of the Evidence Act.

6. Glaring contradictions not expected from educated journalist

The court compared the email (complaint) of the prosecutrix sent to Tehelka’s Managing Editor with her statement under Section 161 CrPC, and noted “material contradiction”. In her email, the prosecutrix stated that “she picked up her underwear” and began walking out of the elevator. Saying that she picked up her underwear means that it was taken off the body and was not just pulled down. Taking it off was not possible as that would require lifting up of her legs. While in her statements under Section 161 and 164 CrPC, she stated that “she pulled her underwear” and began walking out.

Such “glaring contradictions“, said the court, “cannot be expected from educated journalist like [the prosecutrix] and forces the court not to believe the incident of rape“.

7. No revelation to prosecution witnessess

The court noted the evidence of a few prosecution witnessess who said that the prosecutrix only told them that accused forced his tongue in her throat, grabbed/attempted to pull her underwear and asked the colour of it. There was no accusation of removing her underwear, and penetrating her vagina with tongue/fingers.

The court said that if the rape on the prosecutrix at all happened, why she did not reveal or atleast hint about the same to the abovementioned prosecution witnesses. Also, the version disclosed by the prosecutrix to these witnessess was not at all consistent with the case she has now put up. In fact, this is inconsistent with the version of prosecutrix herself.

8. Not showing emails to court

The prosecutrix was asked whether she could show her email account to the court to which she denied. She stated that it was invasion of her right to privacy. In court’s opinion, the statement of the prosecutrix that she would not show the email to the court shows that she wants to hide something and thus she cannot be called reliable and trustworthy and evidence cannot be held to be of sterling quality.

9. Absence of injury

The court noted that the prosecutrix claimed to have physically resisted the accused with all her force and that she was constantly struggling. However, she admitted that she did not receive any injury out of the incident. According to the court, “it is not believable that the prosecutix would throw up such resistance and would not suffer any injury on her body“.

10. Narrative of extreme implausibility

Noting the position (where and how) the prosecutrix and the accused were standing in the lift, the court wondered that if she was not in a conversation with the accused and her mouth was not open, and she was not facing the accused, would it be possible for the accused to pry her mouth?  It was observed by the court that:

“If the prosecutrix had held her jaw firmly closed, how it would be possible for the accused to put his tongue in her mouth. The prosecutrix stated that she pushed the accused as hard as she could and she did so instinctively and reflexively whenever she pushed him. If the prosecutrix pushed the accused instinctively and reflexively, why wouldn’t she push the accused before he kissed when she was pushed against the wall or atleast put her hands in between to prevent the accused from coming close.”

This, in court’s opinion, was a narrative of extreme implausibility and it was not possible to believe that the prosecutrix, a woman who is aware of laws, intelligent, alert and physically fit (a Yoga trainer) would not push or ward off the accused.

11. No warning to the accused and no fight back

The court noted that in her evidence, the prosecutrix clearly stated that she regularly pushed away the accused. Then it was also noted that the prosecutrix had stated that she did not warn or intimidate the accused when he went down on his knees as she claims that he was more powerful than her. She also admitted that she did not fight back against the accused when he began to disrobe her during the incident.

According to the court, the voluntary statement of the prosecutrix that she was too scared of the accused and still in shock could not be believed. It was concluded by the court that:

“Hence, the allegation of rape and sexual assault cannot be said to have been proved by the prosecution beyond reasonable doubt.”

 12. No confession by accused

The prosecution submitted that in his apology given to the prosecutrix, the accused did not deny sexual molestation and, thus, has admitted the allegations made against him.

On this, the court discussed as to what is confession. It said that ordinarily, confession by a person is an act of admitting that he has done something wrong or illegal. In court’s opinion, the apology email sent by the accused reveal that there was absolutely no admission/confession of any incriminating fact even remotely suggesting sexual assault by the accused on the prosecutrix. That email is not a reply to any previous email sent to the accused by the prosecutrix containing any allegations of sexual assault, to claim that since the allegations were not denied, it amounted to a confession. In fact, it was not an apology but an attempt to assuage any discomfort the prosecutrix might have post facto felt. The court then went on to observe:

“Further, her statement that the accused offered to apologise to her mother and partner for the same certainly do not make out a case of sexual molestation, and it is clear that the prosecutrix is manipulating an interpretation to suit her case.”

13. Calculated actions of prosecutrix

The court noted that the prosecutrix had recorded her calls with Tehelka’s Managing Editor and these conversations were copied on DVDs which were submitted. According to the court:

“It is important to note that since she failed to inform [the Managing Editor] that she was recording the conversation – which means she could control anything she herself said in the conversation, but the other party to the call was left at the mercy of her manipulation. This is also a clear indicator of the calculated nature of her actions.”

In any event, said the court, such conversation was not relevant against the accused as he was not a party to the conversation.

14. Prohibition of Sections 53-A and 146 of the Evidence Act

Following the prohibition prescribed in Sections 53-A and 146 of the Evidence Act, the court decided to gloss over some WhatsApp chats and questions asked to the prosecutrix as well as several wintessess. Sections 53-A and 146 prohibit the evidence of general moral character and previous sexual experiences of the victim in certain cases (including cases of rape) where consent of the victim is in question.

15. The lift and the CCTV footage

The court noted certain facts regarding the lift where the incident allegedly took place. Firstly, the prosecutrix had stated that the accused kept pressing buttons on the lift panel to keep it in circuit without doors of the lift opening. To this, after perusing the evidence, the court concluded that much prior to the cross-examination of the prosecutrix, there was unequivocal evidence that the lift simply could not be kept in circuit by pressing buttons on the lift panel preventing the doors from opening at any floor, as claimed by the prosecutrix. Further, the prosecutrix did not recollect how many times the lift went up and down during the two minutes when she was being assaulted, thereby implicitly not denying the fact that the lift was in motion, and creating even more ambiguity about the lift being in motion or stationary.

However, it was noted by the court that the CCTV footage of the ground floor clearly showed that the guest lift was in motion during the two minutes and the doors of the lift opened at least twice on the ground floor.

16. Investigation lapse    

The court made several observations regarding lapses in investigation, including improper inspection of functioning of the lift where the crime allegedly took place. The court went to the extent of observing that the Investigating Officer deliberately concealed empirical evidence of the true functioning of the emergency red button of the lift from the court though available, as it contradicted the version of the prosecutrix and the prosecution case.

Prosecution’s case was that the accused pressed the red button for preventing the doors from opening. It was attempted to show that the red button of the lift was disabled after the incident, hence its exact functioning could not be inspected. To this, the court said that if documentation was created regarding disabling of the emergency red button by Hotel Grand Hyatt and Mitsubishi, it was quite strange that all documents relating to same would go missing both from Hotel Grand Hyatt and Mitsubishi.

All in all, the court concluded that prosecution’s case that the accused prevented the lift door from opening and that he wrongfully confined the prosecutrix, was not proved.

17. Destruction of most crucial CCTV footage

The accused took the defence that he and the prosecutrix were not in the lift during the relevant two minutes, but had exited the lift on the first floor. To prove this, CCTV footage of the first floor of guest lifts of 7-11-2013 (the night of the alleged incident) was most vital to the accused. On the day of registration of FIR, i.e. 22-11-2013, itself, the accused had demanded that police should procure such CCTV footage from the hotel, which would establish his innocence.

Also, there was ample evidence to prove that there was in fact a CCTV outside the guest lifts of the first floor. Not only this, but the IO (as well as several other witnesses) also admitted to have seen the CCTV footage of all floors including that of the first floor. But on being asked as to what she saw in the footage of the first floor, the IO stated that she could not recollect.

The further course of action adopted by the her made it clear to the court as to how the IO went about selectively retaining only the ground and the second floor footage, and completely destroying the first floor CCTV footage of the guest lifts in which the alleged crime took place.

It was recorded that if the CCTV footage of first floor was viewed on 29-11-2013, then where did it disappear and there is absolutely no explanation to this from the prosecution. There was no reliable proof that the DVR was sealed on 29-11-2013 which creates even further possibility for tampering with the DVR. The court concluded that:

“It can be said that because the footage of the first floor would have wholly destroyed the prosecution’s case, [the Investigating Officer] sought to keep out the relevant footage for the first floor and render it unavailable. …

[The] only conclusion that can be drawn is that the Investigation Officer tampered with and destroyed the CCTV footage of the first floor guest lifts … since it would conclusively corroborate the defence of the accused.”

18. Not using possible escapes

The court found it surprising to believe that when the accused had assaulted the prosecutrix on the night of 7-11-2013, then why did she again follow him to the lift the very next night of 8-11-2013. According to her, the accused seemed to know how to stall the elevator at his will and she was afraid that he would take her into a room this time. The court said:

“Despite this so-called fear, [the prosecutrix] chose to follow him back to the elevator and does not use any possible escapes that are available to her.”

19. Conduct of  prosecutrix not natural of a sexual assault victim

The court was not amused by the conduct of the prosecutrix after the alleged incident which was repeated on the night of 8-11-2013. Firstly, she did not report about the incident to Tehelka’s Managing Editor even when she had a chance of meeting her alone in the VIP lounge. Also, in photographs taken shortly after the alleged assault, the prosecutrix looks in a happy and cheerful mood, and did not look distressed or traumatised in any manner whatsoever.

According to the court, this unnatural conduct of the prosecutrix is relevant under Section 8 of the Evidence Act. The prosecutrix admitted to have been updating the accused about her location via WhatsApp messages even after the alleged assault. The court said:

“[If] the prosecutrix had recently again been sexually assaulted by the accused and was terrified of him and not in a proper state of mind, why would she report to the accused and disclose to him her location when she could have reported to N, S and P, all of whom she was reporting and updating on a regular basis.”

It was recorded that the prosecutrix sending messages to the accused proactively, without any attempt by him to ask her where she was, and her sending the same message thrice in a span of very few minutes clearly establishes that she was not traumatised nor terrified of being located or found out by the accused, and belies the prosecution case that immediately before the said messages, the accused had sexually assaulted the prosecutrix again.

The court concluded:

“It is extremely revealing that the prosecutrix’s account neither demonstrates any kind of normative behaviour on her own part – that an prosecutrix of sexual assault on consecutive two nights might plausibly show, nor does it demonstrate any such behaviour on the part of the accused.”

20. Omission to record evidence of K

K was an integral member of THiNK 2013 production team. The prosecutrix stayed the night of 9-11-2013 at Hotel Grand Hyatt in the production room allotted to K. Firstly, in court’s view, this exposed the fact that the prosecutrix had no problem freely moving about the hotel where the accused was also staying. Then, K has written a letter to the IO to share information related to the case. He said that he had known the prosecutrix for some time, and that he had information regarding the details and mental state of the prosecutrix during the festival, particularly on the night of 9-11-2017.

However, the IO despite receiving the said letter, did not record the statement of K. The court said that the IO dealt with the material in a casual manner and failed to even record the statement, let alone probe, verify and investigate all material potentially available in order to arrive at the truth.

21. Using allegation as a necessary escape for her peace of mind

The prosecutrix had stated that after the conclusion of THiNK 2013, she had to stay back in Goa before going home as she was traumatised and also because her mother along with her colleagues would be staying at her flat in Mumbai for a couple of days. But, the court looked at certain evidence which included her WhatsApp chats and found that the prosecutrix had a prior plan to stay in Goa with D, her Russian boyfriend, before and after the event.

The court concluded:

“[The] prosecutrix had always planned to stay in Goa with D post THiNK and is only using allegation of sexual assault to make it appear like a necessary escape for the sake of her peace of mind when it was always a pre-planned, pre-meditated trip.”

Also, the fact that after the event, the prosecutrix stayed with two of her friends at a hotel in Goa, as asserted by her, was found not proved.

22. Faulty investigation

The court had a long discussion about the material lapses and omissions on the part of Investigating Officer, some of which are mentioned above. It was also noted that the IO was also the complainant in the case (the police had initiated suo motu inquiry based on reports in media), even when there were other lady officers who could have conducted the investigation.

The court was of the opinion that:

“The settled proposition that the acquittal of accused cannot result due to defects in the investigation cannot be disputed, However, a duty is also cast on the investigating officer to conduct fair investigation in the matter to bring out the truth.”

Conclusion

The court held that deposition of the prosecutrix shows improvements and material contradictions, omissions and change of versions which does not inspire confidence. And that the accused ought to be given benefit of doubt as there is no corroborative evidence supporting allegations made by the prosecutrix. The prosecution failed to discharge the burden to prove guilt of the accused beyond reasonable doubt.

The accused was, therefore, acquitted of the offences punishable under Sections 376(2)(f), 376(2)(k), 354, 354-A, 354-B, 341 and 342 IPC. [State v. Tarunjit Tejpal, Sessions Case No. 10 of 2014, decided on 21-5-2021]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J., while addressing the matter stated that the present judgment as well as the Trial Court’s Judgment against which the appeal was filed required to be forwarded to the Director, Bihar Judicial Academy to ensure proper academic training to the judicial officers to make them conversant with the correct legal proposition.

Adding to the above, Bench expressed that Chief Justice may deem it proper that the trial judge who passed the impugned judgment needs special training at the Judicial Academy.

Appellant was charged under Section 376 of Penal Code, 1860 and Section 6 of the POCSO Act.

Trial Judge convicted the appellant for offence under Section 18 of the POCSO Act for the reason that no case of aggravated penetrative sexual assault was made out rather a case of attempt to commit penetrative sexual assault was proved against the appellant.

In the present appeal, Trial Court’s decision was challenged.

As per the facts of the case, appellant forcefully established a sexual relationship with a 13-year-old girl. The further allegation is that the appellant lifted her and was carrying her to commit her murder, but the family members came, and the appellant was apprehended and was handed over to the police.

Bench noted that none of the doctors who had occasion to examine the victim were produced as witness during the trial.

Prosecution’s report was not a substantive piece of evidence unless the expert appeared before the Court and supported the medical performance done by them. Therefore, no evidence was present in the case. Hence the impugned judgment of conviction was fit to be set aside.

High Court noted that the Trial Court Judge referred to Sanskrit shloka and Ghazals of Late Jagjit Singh while awarding the sentence against the appellant.

Bench expressed that Trial Judge especially a Judge having power to award death sentence must have correct knowledge of legal principles and zeal to its proper application while exercising the most onerous responsibility of taking decision on the life and liberty of the person before him.

Further adding to the above, Court stated that lack of knowledge of legal principles leads to miscarriage of justice and unnecessary harassment to the parties to the litigation. Bias and prejudices, conjectures and surmises and personal views contrary to the material on the record have no place in the court of law.

Court held that the trial Judge accepted the conflicting prosecution case as disclosed in the statement of the prosecutrix under Sections 154 and 164 CrPC for recording conviction without appreciating the fact that the aforesaid were not a substantive piece of pieces of evidence and the evidence brought during the trial did not disclose the commission of any offence or identity of the perpetrator of the offence.

Hence the impugned judgment and sentence was set aside. [Deepak Mahto v. State of Bihar, 2021 SCC OnLine Pat 770, decided on 12-04-2021]


Advocates before the Court:

For the Appellant/s: Mr N. K. Agrawal, Sr. Advocate. Mr Vijay Anand, Advocate.

For the Respondent/s: Mr Zeyaul Hoda, APP