0
bombay high court

Section 113-A of the Evidence Act would not automatically apply: Bombay High Court

Mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband was held in the case of The State of Maharashtra vs Sharad Ramdas Shelar [ Criminal Appeal No. 1233 of 2012] held by Justice A.S.Gadkari.

The marriage of Mrs. Manisha was solemnized with Sharad R. Shelar on 24th March, 2008. Initially for one year from her marriage, the Respondents treated her fairly and properly. A male child is begotten from their wedlock. Later, the deceased informed her parents regarding ill-treatment she is being subjected to. In order to avoid ill treatment to Manisha at the hands of Respondents, her father went to the house of the Respondents and paid the said amount of Rs.30, 000/- to her husband. Even after this, the ill treatment continued for Rs.10000/-. On 17th March, 2010, Smt. Mandabai and Brother Sopan B. Khaire had been to the house of Mrs. Manisha. At about 5.00 p.m. on the same day, Sopan Khaire received a phone call from one of the Respondent informing that, the deceased was missing since 2.00 p.m. and later upon searching was found dead in well.

The Trial Court after recording evidence and hearing the learned Advocates for the respective parties, acquitted Respondents from the charges framed against them by its impugned Judgment and Order dated 7th May, 2012.

This Court relied on the case of Mangat Ram vs. State of Haryana.

This Court held that, under Section 113-A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the Court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, gives discretion to the Court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word ‘cruelty’ in Section 498-A IPC.”

The Court while dismissing the petition held that, the prosecution has failed to establish the wilful conduct on the part of the Respondents to attract Section 498-A of the IPC and their conduct with deceased was of such a nature that it would likely to drive the deceased to commit suicide.

Click here to read the Judgment

Judgment Reviewed by – Savita

0

Incriminating evidence is required to convict – Bombay High Court

Bombay High Court held that mere non-explanation on the part of the appellant, by itself cannot lead to proof of guilt against the appellant held by Justice Smt.Sadhana S.Jadhav and Justice N.J. Jamadar in the case of Sachin Subhash Londhe Vs State of Maharashtra [Criminal Appeal No 714 of 2016].

In the present case, the police had received an information that one male person was lying in a pool of blood in a shed at one Shivaji Hotel. The deceased was identified and upon investigation it was found that the appellant and the deceased after had an argument while the deceased was intoxicated. After two hours of this incident, the body of the deceased was found in the shed of the hotel. It had transpired in the investigation that deceased was hurling abuses to the accused and therefore, the accused had assaulted the deceased with a stone. Charges were filed and the appellant was convicted by Additional Sessions Judge for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to a rigorous imprisonment for life and a fine of Rs.2,000/-. The appeal has been initiated challenging the said decision before the High Court.

The appellant submitted that there is no material on record to show that the appellant is the author of the injuries sustained by the deceased or that he has caused the homicidal death of deceased. The question for determination before the court was whether the prosecution has brought on record convincing and cogent material to implicate the appellant in the alleged homicidal death.

The Court after examining the witnesses observed that, “It is clear that there was no enmity between the accused and the deceased. Neither there was any motive to eliminate the deceased. The evidence is otherwise. It would show that they were in the liquor shop at the same time but the accused had left the liquor shop even before the deceased and after he returned, he was accompanying the deceased who was waiting alone in the shop. The recovery of blood-stained clothes coupled with the Forensic Science Laboratory report does not show that the blood on the clothes of the accused were that of the deceased. Blood group of the deceased could not be determined and therefore, finding of the blood stains on the clothes of the accused would not be an incriminating circumstance.”

The High Court while squashing the conviction and sentence imposed upon the accused/appellant heavily relied on the case of Kanhaiya Lal Vs. State of Rajasthan [(2014) 4 SCC] where the Hon’ble Apex Court had held that “The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime.”

Hence, taking into consideration the totality of the facts and evidence, the circumstances relied upon by the prosecution were not established by convincing evidence and they did not form a complete chain pointing to the guilt of the appellant and hence, the appellant deserves to be acquitted. Hence, they passed the following order:-

(i) Appeal was allowed.

(ii) The conviction and sentence imposed upon the accused (Sachin Subhash Londhe) vide judgment and order dated 7th April 2016 passed by the Additional Sessions Judge, Islampur in Sessions Case No.51 of 2014 was hereby quashed and set aside.

(iii) The accused has been released forthwith, if not required in any other offence.

(iv)Fine amount, if paid, be refunded.

(v) Appeal was disposed of.

Click here to read the Judgment

Judgment Reviewed by – Savita

0

Keeping a child in adverse conditions and causing bodily pain to the child fulfils the ingredients of the offence of ‘hurt’ under Section 319 IPC : Delhi High Court

When a child is kept in confinement and is crying, it is a condition adverse to the normal condition and thereby fulfilling the ingredients of the offence of hurt as defined under Section 319 IPC as upheld by the High Court of Delhi through the learned bench lead by Justice Mukta Gupta in the case of Priyanshu Kumar v. State (CRL.REV.P. 329/2021).

The brief facts of the case are that by this petition before the Delhi High Court, the petitioner challenges the order passed by the learned ASJ directing framing of charge for offences punishable under Section 364A IPC against the petitioner.

Learned counsel for the petitioner stated that the petitioner was in very good relationship with the victim family and usually took the child to play with him. The demand of money, even as per the WhatsApp chat does not relate to the victim and even in the alleged demands, the petitioner repeatedly stated that he will send the child. Thus, the amount demanded cannot be treated as a ransom and further, there was no apprehension of death or hurt to the child, therefore the ingredients of Section 364A IPC are not made out and hence, no charge for offence punishable under Section 364A IPC could be framed.

An FIR was registered on the complaint of mother of the victim child Karthik Kaushik aged 7 months. She stated that they had a tenant, namely, Suresh Kumar on the second floor, who was residing with his son Priyanshu Kumar, daughter, elder son and elder son’s wife. Priyanshu used to come to the first floor everyday to play with the child and used to take him to the second floor and also on the terrace. On 9 th April, 2021, Priyanshu Kumar took him to his floor and after some time, Priyanshu’s sister came running asking for Karthik, on which the complainant stated that Karthik was with Priyanshu Kumar. The complainant then made a phone call to Priyanshu, the petitioner did not pick and did not reply to messages. Thereafter, she received messages for demand of money from the petitioner. Besides the statement of the complainant, prosecution has also relied upon the messages between the complainant and the petitioner, wherein he is repeatedly demanding ₹40 lakhs in his HDFC account and has thereafter also stated that whatever they have, they should send and only thereafter, he will send the child.

After hearing the learned counsel for the respective parties at length, the Hon’ble Court held, “The contention of learned counsel for the petitioner, that since there was no hurt caused to the child nor any apprehension of hurt, necessary ingredients of Section 364A IPC are not satisfied deserves to be rejected. The child was kept as ‘kidnapped’ till the ransom demand was met. Hence, this Court finds no error in the impugned order passed by the learned Additional Sessions Judge framing a charge under Section 364A IPC against the petitioner

Click here to read the Judgment

Judgment reviewed by Vandana Ragwani 

0

While quashing the Criminal Proceedings where the parties have settled the matter between themselves the Court has to secure ends of justice and prevent the abuse of the process of any court: High Court of Meghalaya

The Supreme Court has held that the High Court u/s 482 of the Code has the inherent power to quash criminal proceedings even in cases which are not compoundable where the parties have settled the matter between themselves. However, this power has to be exercise to secure ends of justice as upheld by the Hon’ble High Court of Meghalaya through the learned bench lead by Justice W. Diengdoh in the case of Shri Dapyooki Dkhar & Anr Vs. State of Meghalaya & Anr. (Crl. Petn. No.34 of 2021).

The brief facts of the case are that the Petitioner No 1 is a police constable serving in the Meghalaya Police. Petitioner No 2 is the Complainant who has lodged an FIR at the Sadar Police Station, Shillong which was registered under sections 279/337/338/304(A) IPC bringing to the notice of the police the fact about the occurrence of a motor accident in which his father was dashed by the Scooty of the Petitioner No 1 and he succumbed to his injuries on 20.06.2020. That the Petitioner No 1 and the Petitioner No 2 have decided to settle the matter outside court and consequently, an Agreement was drawn up between the parties, one of the terms being that the Petitioner No 1 would compensate the Petitioner No 2 for the loss of life of his deceased father which was agreed at ₹ 4,00,000/- (Rupees four lakhs) and that the Petitioner No 2 would withdraw the said FIR filed and would not pursue the matter in court.

However, in the meantime, the Investigating Officer had filed the Charge Sheet before the Court of the Chief Judicial Magistrate, Shillong which matter was then registered and the same was endorsed to the Magistrate for trial. It is further stated in the petition that since the case involving the Petitioner No 1 also includes sections 279 and 304(A) IPC which are non-compoundable, the Magistrate under section 320 Cr.P.C. has no jurisdiction to allow the compromise between the parties. Hence this instant petition.

Mr. A.S. Siddique learned Counsel for the Petitioners relying on the cases of Avinash Chawla v. State & Anr. and Narinder Singh v. State of Punjab has submitted that since the Petitioners have already compromised therefore there is no futility in proceeding with the criminal case and as such, this is a fit case for this Court to exercise its inherent power under section 482 Cr.P.C. to quash the same.

Mr. H. Kharmih, learned GA on the other hand has submitted that since some of the sections involved in the said criminal case against the Petitioner No 1 are non-compoundable, therefore no compromise can be affected and as such, this application is liable to be rejected.

After hearing the learned counsel for the respective parties at length, the Hon’ble Court held, “This Court is of the considered opinion that the application of the Petitioners is entitled to be allowed. In view of the above, the dispute between the parties having been resolved, it would be futile to proceed with the said criminal proceeding against the Petitioner No. 1. Accordingly, the proceedings of pending in the court of the learned Judicial Magistrate is hereby quashed and bail bond executed if any stands discharged against the accused therein.”

Click here to read the Judgment

Judgment reviewed by Vandana Ragwani 

0

If the petitioner is considered for promotion to the next higher post of, the promotion cannot be given with retrospective effect: High Court of Meghalaya

The writ Court, which exercises its high prerogative jurisdiction under Article 226 of the Constitution of India is not so readily equipped for the purpose of quantification of damages which is required to be awarded in favour of the respondent/writ petitioner on account of wrongdoing, if any, on the part of the concerned authority as held by the Hon’ble High Court of Meghalaya through a learned bench of Hon’ble Mr. Justice Biswanath Somadder, Chief Justice, and  Hon’ble Mr. Justice W. Diengdoh, Judge in the case of The Union of India & Ors Vs Kumar Keshab Kalita. [WA No. 58 of 2017]

Brief facts of the case are that, he respondent/writ petitioner was enrolled as Rifleman General Duty and thereafter, remustered to the post of Havildar Store Keeper Technical. The next promotional post of Havildar Store Keeper Technical is Naib Subedar SKT. It is an admitted case of the parties that as per the Assam Rifles Recruitment Amendment Rules, 2009, a new recruitment process has been implemented for promotion from the post of Havildar Store Keeper Technical to Naib Subedar SKT.

It is the case of the respondent/writ petitioner that he was denied the opportunity of undergoing Technical Trade Test II while his juniors had been deputed for undergoing Technical Trade Test I and as a result, further promotion to the post of Naib Subedar SKT was denied to him. The respondent/writ petitioner had filed many representations to the concerned authority for sending him to undergo Technical Trade Test II and I. In support of this fact, the respondent/writ petitioner also annexed the copies of the representations. It is a fact that at the time of holding the DPC on 15th July, 2009, the respondent/writ petitioner was not eligible for promotion to the post of Naib Subedar SKT.

The learned Single Judge in the impugned judgment and order at the very outset observed, inter alia, to the effect that the Court had full sympathy for the respondent/writ petitioner in the given case but because of hard fact that he was not eligible at the time of consideration for promotion to the post of Naib Subedar SKT (Engineer), by the duly constituted DPC held on 15th July, 2009, the relief sought for in the writ petition could not be granted in full.

The Hon’ble court, after a perusal of the facts on record, was of the view that “If the respondent/writ petitioner is considered for promotion to the next higher post of Naib Subedar SKT (Engineer), his promotion cannot be given to him with retrospective effect. The wrongdoing, if any, on the part of the concerned authority cannot be compensated in such a manner. At first, it has to be translated into damages and is thereafter required to be quantified by a competent Civil Court. The writ Court, which exercises its high prerogative jurisdiction under Article 226 of the Constitution of India is not so readily equipped for the purpose of quantification of damages which is required to be awarded in favour of the respondent/writ petitioner on account of wrongdoing, if any, on the part of the concerned authority.”

Click here to read the Judgment

Judgment Reviewed by – Aryan Bajaj

1 2 3 514
Open chat