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Karanataka HC grants bail: States that prima facie evidence does not preclude petitioners from using the special authority granted to the Court

CASE TITLE – Yunus Ahmed & Ors v. State of Karnataka

CASE NUMBER – CRL.P No. 4103 of 2024

DATED ON – 02.05.2024

QUORUM – MR. JUSTICE V SRISHANANDA

FACTS OF THE CASE

Chithradurga Rural Police registered a case in Crime No.133/2024 for offences under Sections 427, 504, 143, 147, 148, 149, 395, 448, 307, 323, 324 of Indian Penal Code, on 02.04.2024 at about 8:30.p.m., based on the complainant lodged by B.H.Gowdru alias B. Facts further reveal that there was an incident that had occurred at about 2:30.p.m., on 02.04.2024, where under a Muslim Woman by name Farzana Khanum had a conversation with B.H.Gowdru alias B. At that juncture, about 18 to 20 persons from Muslim community people have forcibly ingressed to the compound wall of the house of B.H.Gowdru and took serious objection in having a conversation with Muslim Woman. It is also contended that the mob assaulted with hands and legs and stones and had a Neck Chain weiging of 55 grams, One Bracelet of 30 grams and Two Rings of 20 grams and Cash of Rs.40,000/- from his pocket were stolen by the mob and they also caused damage to the car bearing registration NO.KA-16-N-6574, which was parked there. In respect of the same incident, Smt. Farzana Khanum also lodged a complaint before the Women Police Station, Chitradurga against B.H.Gowdru alias B on 03.02.2024 at 6:00.a.m.

 

ISSUES

Whether bail petition can be granted to the accused(s)?

 

STATUTES

Section 439 of Code of Criminal Procedure (CrPC), which empowers the High Court and the Sessions Court with special powers regarding bail.

 

CONTENTION OF PETITIONERS

Reiterating the grounds urged in the bail petition, Sri. Hasmath Pasha, learned Senior Counsel for the revision petitioners contended that even assuming that entire allegations found in the complaint lodged by Sri. B.H.Gowdru to be accepted has gospel truth, no ingredients are attracted in so far as the offence under Section 307 of I.P.C., prima-facie. He further contended that at any rate, since there is case and counter-case, the accused/petitioners are entitled to be enlarged on bail. He further pointed out that having regard to the allegations levelled against the present petitioners in the incident, continuation of the accused/petitioners in Judicial custody no longer warranted and the apprehensions expressed by the prosecution can be met with by imposing suitable conditions.

CONTENTIONS OF RESPONDENTS

High Court Government Pleader opposes the grant of bail on the ground that the offence alleged against the petitioners are heinous in nature and it stands proved, the petitioners are liable for the punishment of life imprisonment and therefore, gravity of the offence is on the higher side.  He further contended that the investigation is still in inception stage and if the bail is granted to the petitioners, then the investigation process could be hamper. He also pointed out that the release of the petitioners on bail may result in reputation of the offences and therefore, sought for release of bail.

COURT ANALYSIS AND JUDGEMENT

The court looked over the evidence. Upon reviewing the available evidence, it is acknowledged that an incident related to a small matter has occurred. The complainant’s allegations would unequivocally show that the mob, which included the petitioners, attacked the complainant with hands, legs, and stones, damaged the car, and took valuables out of the complainant’s possession. Given that the accused individuals are being held in custody as of April 4, 2024, the investigation could have advanced significantly and, in any case, any necessary custodial questioning could have been finished. From the petitioners’ side, there are no prior criminal convictions. The court stated that as could be seen from the complainant averments itself, even though the prosecution has invoked Section 307 of I.P.C., prima-facie materials would not disentitle petitioners, from obtaining an order of grant of bail by resorting to special powers vested in this Court under Section 439 of Cr.P.C. Hence allowing the bail petition.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Rajasthan High Court Verdict in 1991 Criminal Case: Conviction Changed from Attempt to Rape to Assault

Case title: Suwalal VS. The State Of Rajasthan  

Case no : S.B. Criminal Appeal No. 272/1991

Order on: 13/05/2024

Qoram: HON’BLE MR. JUSTICE ANOOP KUMAR DHAND

Fact of the case:

The complainant (PW-3) lodged a report at the Police Station, Todaraisingh, District Tonk, alleging that his six-year-old granddaughter, referred to as “D,” was drinking water at a Pyau (Water Booth) near Dharamshala when the accused, Suwalal, forcefully took her into the Dharamshala around 8:00 PM with the intent to commit rape. Villagers intervened upon hearing the girl’s cries. Based on this report, Crime Report No.40/1991 was registered for the offence under Section 376/511 IPC. Following the investigation, a charge sheet was filed against the appellant for the aforementioned offence, and charges were framed by the Trial Court, to which the appellant pleaded not guilty. The prosecution presented 7 witnesses and 5 documents. The appellant’s statements were recorded under Section 313 Cr.P.C. On 03.07.1991, the Sessions Judge, Tonk, convicted Suwalal under Section 376/511 IPC and sentenced him to 3 years and 6 months of rigorous imprisonment with a fine of Rs.100, with an additional 3 months of simple imprisonment in default of payment. 

Issues Framed by the Court

  • Whether the appellant, Suwalal, committed the offence of attempt to rape under Section 376/511 IPC as per the allegations.
  • Whether the facts and evidence support the conviction under Section 376/511 IPC or if a different section of the IPC is more appropriate.

Legal provisions:

Section 376/511 IPC: Deals with the attempt to commit rape. Section 376 covers the punishment for rape, and Section 511 deals with the punishment for attempting to commit offences punishable with life imprisonment or other punishments.

Section 354 IPC: Apply to to assault or criminal force to woman with intent to outrage her modesty.

Contentions of Appellant:

The appellant’s counsel argued that the allegations made by the prosecutrix did not constitute an attempt to rape under Section 376/511 IPC. The main accusation was that the appellant undressed himself and the prosecutrix, which does not fulfill the legal criteria for an attempt to rape. The counsel highlighted that there was no medical evidence connecting the appellant to an attempt to rape the prosecutrix. The counsel contended that the Trial Court erred in its judgment by convicting the appellant under Section 376/511 IPC without sufficient evidence of an attempt to rape.

Contentions of Respondents:

The respondent ( Public Prosecutor ) argued that the prosecutrix’s statements clearly indicated that the appellant undressed both himself and the prosecutrix, which were specific actions pointing towards an attempt to rape. The counsel noted that the appellant did not cross-examine the prosecutrix (PW-2) to challenge her testimony, thereby suggesting that her statements should be considered credible and sufficient to establish an attempt to rape. The Public Prosecutor maintained that the evidence on record and the testimony of the prosecutrix justified the conviction under Section 376/511 IPC.

Court analysis& Judgement:

In this case, The court examined the FIR and statements of witnesses, particularly focusing on the prosecutrix (PW-2) and her grandfather (PW-3). The prosecutrix’s account that the appellant undressed her and himself was scrutinized. However, it was found that these actions did not constitute an attempt to rape as defined under Section 376/511 IPC. The court clarified that for an act to be considered an attempt to rape under Section 376/511 IPC, it must go beyond mere preparation and constitute a direct attempt to commit rape. The court determined that the actions of the appellant, forcefully taking the prosecutrix into the Dharamshala and undressing, amounted to assault with intent to outrage modesty under Section 354 IPC. The court emphasized that the appellant’s actions had the intention or knowledge that the modesty of the prosecutrix was likely to be outraged, fitting the criteria for Section 354 IPC. The court considered the appellant’s age at the time of the incident (below 25 years). The duration the appellant had already spent in jail was noted (approximately 2½ months). The court acknowledged the long duration since the incident (over 33 years), which had likely caused mental, physical, and economic strain on the appellant. Given the significant lapse of time, the court found it inappropriate to send the appellant back to jail.

Therefore, the  court decided  that the appellant’s conviction was altered from Section 376/511 IPC (attempt to rape) to Section 354 IPC (assault or criminal force with intent to outrage modesty). The findings of the learned Sessions Judge, Tonk, were modified accordingly. In accordance with Section 437-A Cr.P.C., the appellant was directed to furnish a personal bond of Rs.50,000/- and one surety of a similar amount within three months. This bond would ensure the appellant’s appearance before the Supreme Court if an appeal was filed against this judgment. The bonds would remain effective for six months. The trial court’s record was ordered to be sent back immediately.

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Judgement Reviewed By- Antara Ghosh

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Delhi HC suspends appellant’s sentence; States unjust to keep them for extended time if the court cannot hear the appeal promptly.

CASE TITLE – BHIMA ALIAS MANOJ & Ors. v. STATE (GOVT. OF NCT OF DELHI)

CASE NUMBER – CRL.A. 643/2022, CRL.A. 236/2023, CRL.A. 5/2023

DATED ON – 28th March, 2024

QUORUM – Hon’ble Ms. Justice Jyoti Singh

 

FACTS OF THE CASE

The Appellants, Bhima Manoj, Ravi, and Munesh, have filed these applications under Section 389 Cr.P.C. seeking sentence suspension in FIR No.118/2011 registered under Sections 307/34 IPC at Mayur Vihar, Delhi police station. These motions for sentence suspension were heard jointly and are being considered by one joint order because the appeals stem from the same FIR and common judgement. On May 3, 2011, a police team arrived to the scene after receiving DD No. 77B, which stated that an individual had been stabbed during a fight at 29/242, Trilok Puri, Delhi, and was en route to the hospital. They discovered that the injured had been transferred to LBS Hospital. There was no witness present at the spot. As soon as IO arrived to the hospital, he picked up Sunil and Suraj’s MLC.  According to Sunil’s recorded statement, he and his friend Suraj were drinking alcohol at a park in Block-29, Trilok Puri at around 9.30 p.m. When the complainants, Ravi, Bhima, and Munesh, arrived and asked for drinks, the complainants refused, and the three of them began beating them. Ravi struck Bhima and Munesh with a pointed weapon, while Bhima held Sunil and Suraj. Suraj was struck in the back and stomach, and Sunil was struck in the chest. The three later left, and after someone at number 100 complained, the police arrived and a formal report was filed.  The MLC for Sunil believed the damage to be simple, but the MLC for Suraj believed the injury to be severe. Prior to the addition of Section 325 IPC by IO, the FIR was filed under Sections 324 and 34 IPC. Charge sheet under Sections 325/307/34 IPC was submitted, and learned MM, by decision dated January 5, 2015, committed the case to the Court of Sessions after taking cognizance of the crimes. Following the trial and hearing of the arguments, the learned Sessions Court found the appellants guilty of violating Sections 307 and 34 of the IPC.

This was stated in the judgement dated September 28, 2022, and in the sentence order dated November 25, 2022. The appellants were sentenced to seven years of rigorous imprisonment, a fine of Rs. 7,000 per year, and, in the event that they failed to appear, three months of simple imprisonment for violating Section 307 of the IPC.

ISSUES

Whether the sentences of the Appellants should be suspended pending the resolution of their appeals?

 

CONTENTIONS BY THE APPELLANT

Frequently, arguments put forth by the appellants assert that they are innocent and that Sunil and Suraj, the purported victims, have wrongly implicated them. During the trial, all of the defendants were released on bond, and they never abused the freedom that the court had given them. Since the filing of the first formal complaint in 2011, the appellants have endured a protracted legal proceeding. Appellants served one year and four months in jail as of January 20, 2024, not counting any obtained remissions. They don’t have any criminal history and have no prior transgressions. Undisputedly, the complainants are well-known local criminals with multiple pending FIRs against them. According to criminal jurisprudence, the prosecution must prove the case against the accused beyond a reasonable doubt, and in this instance, the prosecution has not even been able to establish a prima facie case against the appellants. There is uncertainty and doubt around the case as a whole. It is documented that the complainants were well-known local criminals who had multiple cases against them both filed and pending. Many problems plague the prosecution’s case: PW-11 failed to look into the phone owner, and the anonymous 100 number caller was never identified. Despite not finding any liquor bottles at the site, PW-11 noted alcohol on the MLCs. The injuries did not correspond with the supposed sharp object, and no weapon was found. Independent witnesses, images, CCTV footage, or soil samples were not gathered. Section 307 IPC requires proof of intent and activity, but the conditions were not fulfilled. The case is further undermined by PW-3’s insufficient testimony, PW-4’s contradicting remarks, and PW-7’s lack of evidence. The attorneys argue for the Appellants’ release based on these inconsistencies and point to a strong likelihood of success on appeal.

CONTENTIONS BY THE RESPONDENT

The learned assistant public prosecutor for the state, on the other hand, contends that the appellants’ offences are grave and serious, and that their convictions were reached through persuasive evidence presented by the prosecution to the Sessions Court. This court is not at this time authorized to discuss the evidence’s merits; that will be addressed when the appeals are ultimately resolved. She goes on to say that there are distinctions between the pre-conviction bail request and the post-conviction sentence suspension request that the court must take into account. The presumption of innocence dissipates once an accused person is found guilty. It is also widely accepted that the fact that the appellants were released on bail during their trial and that there was no claim of their misuse of their freedom will not have much of an impact on the outcome of a request for a sentence suspension. The benefit of sentence suspension in serious offences is only available in extraordinary circumstances, as the courts have consistently held. The Appellants were given a sentence of seven years of rigorous imprisonment, a fine, and, in the event of a default, three months of simple imprisonment. Since they have only served one year and four months, without counting remissions, there is currently no basis established for the term to be suspended.

COURT ANALYSIS AND JUDGEMENT

The Hon’ble High Court of Delhi, after hearing the learned counsels for the Appellants, acknowledged several significant issues in the prosecution’s case such as contradictions in the testimonies of prosecution witnesses, especially regarding the place of occurrence, non-recovery of evidence and one victim had simple injuries, and the other had grievous injuries. However, the grievous injury was not substantiated by the doctor’s oral testimony. Additionally, the court considered that the appeals are unlikely to be heard soon and that the appellants were young at the time of the incident, had no prior criminal records, and have endured a prolonged trial since 2011 and they have already been incarcerated for nearly 1 year and 6 months. Citing the Supreme Court’s observations in the Kashmira Singh case, the court noted that it would be unjust to keep the Appellants in jail for an extended period if the court cannot hear the appeal promptly.  Moreover, if the Appellants are ultimately found innocent, it would be difficult to compensate for the time spent in jail. Therefore, the Hon’ble High Court has ordered the appellants’ sentences to be suspended while their appeals are pending. This would enable them to be released on bail and provide two sureties each worth Rs. 50,000 in personal bonds. Their release on bond is subject to several requirements, such as not leaving the nation without a judge’s approval, abstaining from illegal activities, keeping in touch with the victim or anyone connected to them, giving the investigating officer (IO) their current and permanent residential addresses, and showing up in court when their appeals are heard.

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Judgement Reviewed by – Gnaneswarran Beemarao

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Karnataka HC grants bail; Imposed stringent conditions to ensure compliance and prevent interference with the investigation.

CASE TITLE – Yunus Ahmed & Ors. v. State of Karnataka

CASE NUMBER – CRIMINAL PETITION NO. 4103 OF 2024

DATED ON – 02.05.2024

QUORUM – Justice V. Srishananda

 

FACTS OF THE CASE

The Chithradurga Rural Police registered a case in Crime No.133/2024 for offences under Sections 427, 504, 143, 147, 148, 149, 395, 448, 307, 323, 324 of Indian Penal Code, on 02.04.2024 at about 8:30.p.m., based on a complainant lodged by B.H.Gowdru alias B. There was an incident that had occurred at about 2:30.p.m., on 02.04.2024, where under a Muslim Woman by name Farzana Khanum had a conversation with B.H.Gowdru alias B. At that juncture, about 18 to 20 persons from Muslim community people have forcibly ingressed to the compound wall of the house of B.H.Gowdru and took serious objection in having a conversation with Muslim Woman. It is also contented that the mob assaulted with hands and legs and stones and had a Neck Chain weiging of 55 grams, One Bracelet of 30 grams and Two Rings of 20 grams and Cash of Rs.40,000/- from his pocket were stolen by the mob and they also caused damage to the car. In respect of the same incident, Smt. Farzana Khanum also lodged a complaint before the Women Police Station, Chitradurga against B.H.Gowdru alias B on 03.02.2024 at 6:00.a.m. Police are investigating both matters. In the process, petitioners who were accused Nos.2, 4, 5 and 6 were arrested and sent to Judicial custody. The attempt made by the petitioners herein to obtain an order of grant of bail was turned down by the learned District and Sessions Judge, Chithradurga. Thereafter, petitioners are before the Hon’ble High Court of Karnataka.

 

ISSUE

Whether the Petitioners/Accused are entitled to bail given the severity of the charges against them.

 

CONTENTIONS BY THE PETITIONERS

The learned Senior Counsel for the revision petitioners contended that even assuming that entire allegations found in the complaint lodged by Sri. B.H.Gowdru is to be accepted as gospel truth, no ingredients are attracted in so far as the offence under Section 307 of I.P.C., prima-facie. He further contended that at any rate, since there is case and counter-case, the accused/petitioners are entitled to be enlarged on bail. He further pointed out that having regard to the allegations levelled against the present petitioners in the incident, continuation of the accused/petitioners in Judicial custody no longer warranted and the apprehensions expressed by the prosecution can be met with by imposing suitable conditions.

 

CONTENTIONS BY THE RESPONDENT

The learned High Court Government Pleader opposes the grant of bail on the ground that the offence alleged against the petitioners are heinous in nature and it stands proved, the petitioners are liable for the punishment of life imprisonment and therefore, gravity of the offence is on the higher side. He further contended that the investigation is still in inception stage and if the bail is granted to the petitioners, then the investigation process could be hamper. He also pointed out that the release of the petitioners on bail may result in reputation of the offences and therefore, sought for release of bail

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble High Court of Karnataka held that the complainant averments clearly depict that the mob including the petitioners attacked the complainant by hands and legs and also stones and damaged the car and robbed the precious items from the custody of the complainant. Since, the accused persons were already in custody on and from 04.04.2024, the investigation could have progressed a considerable extent and at any rate, custodial interrogation if any, would have been completed. There was no criminal antecedents insofar as the petitioners are concerned. They also stated that from the complainant averments itself, even though the prosecution has invoked Section 307 of I.P.C., prima-facie materials would not disentitle petitioners, from obtaining an order of grant of bail by resorting to special powers vested in this Court under Section 439 of Cr.P.C. Therefore, the Hon’ble High Court of Karnataka held that the Bail Petition is allowed certain to some conditions, those being: (a) Petitioners shall be enlarged on bail by taking a bond in a sum of Rs.2,00,000/- with two sureties for the like sum to the satisfaction of the Trial Court. (b) Petitioners shall attend the Court regularly. (c) Petitioner shall mark their attendance before the investigation officer every alternative Sunday in between 10:00.a.m., to 2:00.p.m., till the charge sheet is filed. (d) Petitioners shall not directly or indirectly tamper the prosecution evidence nor hamper the investigation process. (e) Petitioners shall not leave the Jurisdiction of the Chitradurga District without prior permission. And stated that violation of any one of the conditions would entitle the prosecution to seek for cancellation of bail.

 

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Karnataka High Court, orders granting of bail with the intension to re-establish their matrimonial life.

CASE TITTLE: HANISH ABDUL KHADAR V STATE OF KARNATAKA, SHILPA

CASE NO: CRIMINAL APPEAL NO. 582 OF 2024 (U/S 14(A) (2)

DATED ON: 21ST DAY OF MAY, 2024

QUORUM: JUSTICE S RACHAIAH

FACTS OF THE CASE:

This Criminal Appeal is filed by the appellant under Section 14(A)(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for setting aside the order passed by the LXX Addl. City Civil and Session Judge and Special Judge at Bengaluru (CCH-71), passed in Crl.Misc.No.2244/2024  in respect of Crime No.456/2023 registered by Hennur Police Station for the offences punishable under Sections 498A, 354, 506 of Indian Penal Code (for short ‘IPC’) and Sections 3(1)(a), 3(1)(r), 3(2)(va), 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short ‘SC & ST Act’).

The facts leading to the present appeal in question is that, that the respondent No.2 is the wife of the appellant and their marriage was solemnized on 15.07.2021. After marriage, they started residing at Shobha Arcades Apartment, Horamavu, Bangalore. As per the averments of the complaint, there were frequent quarrels between the husband and the wife. Respondent No.2 was not happy in her matrimonial home. It is further stated that, the appellant was harassing respondent No.2 in one or the other pretext and he was not taking proper care. Such being the fact, she became pregnant and, she gave birth to a child. After she gave birth to a child, she has been deserted and thrown out of the house on the ground that she belongs to scheduled caste. Being aggrieved by the cruelty and harassment meted out to her, she has lodged a complaint against the petitioner. The jurisdictional police after registering the case, conducted investigation and submitted charge sheet

LEGAL ISSUES:

Whether the bail application of the petitioner may be considered and may be enlarged on bail?

LEGAL PROVISIONS:

Section 14(A)(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act

498A, 354, 506 of Indian Penal Code (for short ‘IPC’)

Sections 3(1)(a), 3(1)(r), 3(2)(va), 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes

CONTENTIONS OF APPELLEANT:

The appellant through their counsel submitted that though the complainant made several allegation against the petitioner, she has compromised with the petitioner and both have decided to stay together. If bail is granted, certainly, the matter would likely to be settled.the counsel further submitted that due to some misconception of facts, the complainant lodged a complaint and moreover, the alleged offences are neither punishable with death nor imprisonment for life. Therefore, the bail of the petitioner may be considered and he may be enlarged on bail.

CONTENTIONS OF THE RESPONDENT:

The respondent through their counsel appearing for respondent No.2 submitted that the matter has been settled between them and they have agreed to live together. Therefore, the appeal may be allowed. Learned High Court Government Pleader vehemently opposes the appeal and submits that, unless respondent No.2 appeared before this Court and filed a necessary affidavit or otherwise regarding the settlement, it is not appropriate to grant bail to the appellant. therefore, the counsel further submitted that the allegations are so serious against the appellant and there may be chances of committing similar offences in the future. Therefore, the appellant is not entitled for bail.

COURTS ANALYSIS AND JUDGEMENT:

The court on Hearing the arguments of learned counsel for the respective parties and also perused the averments of the charge sheet. Observed that, It appears that both husband and wife were not cordial in their matrimonial life. However, after having considered the submission of the learned counsel for the respective parties regarding the settlement arrived between the spouse, it is appropriate to grant bail in order to re-establish their matrimonial life.Hence, the court Proceeded to pass the order that, The appeal is allowed. Further The appellant is ordered to be enlarged on bail in Crime No.0456/2023 of Hennur Police Station pending on the file of the LXX Addl. City Civil and Session Judge and Special Judge at Bengaluru (CCH-71), Bangalore City, on obtaining a personal bond for a sum of Rs.1,00,000/- (Rupees One lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court, subject to the following conditions: a) The appellant shall appear before the Court on all dates of hearing without fail. b) The appellant shall not tamper the evidence and threaten the prosecution witnesses. If in case, the appellant violates any of the bail conditions as stated above, the prosecution will be at liberty to seek for cancellation of bail.

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