#kerala hc Archives - Prime Legal

22 Mar

SC issues guidelines for dealing with Habeas Corpus petition involving LGBTQ+ community

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Blog # Supreme Court, #Counselling, #guidlines, #Habeas corpus petition, #kerala hc, #LGBTQAI+

Case title – Devu G Nair Vs The State of Kerala & Ors.

Case no. – Special Leave Petition (Criminal) No 1891 of 2023

Decision on – March 11th, 2024

Quoram – Chief Justice of India Dr. D Y Chandrachud, Justice J B Pardiwala, Justice Manoj Misra

Facts of the case

The present appeal was filed under Article 136 of the Constitution against the interim orders issued by the Kerala High Court in a petition seeking a Writ of Habeas Corpus.

The appellant and the ‘corpus’ (referred as ‘X’) in the present case are both female. According to the appellant, they were in an intimate relationship. Accordingly, the petition seeking a writ of habeas corpus was instituted by the appellant on the ground that ‘X’ was being forcibly kept by her parents in their custody even though she wished to stay with her.

The Kerala High Court ordered District Legal Services Authority (DSLA) to ascertain the illegal detention of ‘X’ and facilitate an interaction between ‘X’ and the High Court. After an interaction with ‘X’, the High Court directed ‘X’ to undergo a counselling session with a psychologist attached to a counselling centre.

The HC, later, directed Ms Nair to interact with ‘X’ and submit a report after ascertaining her wishes on whether she is voluntarily residing with her parents or is kept under illegal detention.

In the report, ‘X’ stated that she is in possession of a mobile phone and is free to move wherever she desires. Moreover, she has stated that she is living with her parents out of her own volition. Although she stated that the appellant is an “intimate friend”, she did not wish to marry any person or live with any person for the time being.

Court’s Analysis and Directions

The Apex Court considering the observations of the HC and the report submitted by Ms. Nair stated that it had no reason to disbelieve the said statements and consequently, declined to entertain the SLP.

The Court though disposed of the appeal, made significant observations on the subject matter of the case and issued guidelines for the courts dealing with habeas corpus petitions in similar circumstances.

The Court observed that the counselling of persons similarly situated as ‘X’ should not be a means to overcome the will of the corpus particularly in regard to their sexual orientation and thus stated that the Judges must avoid the tendency to substitute their own subjective values for the values which are protected by the Constitution.

The Court pondering on the counselling or parental care directions given to the members of the LGBTQ+ community pointed out that the concept of ‘family’ is not limited to natal family but also encompasses a person’s chosen family.

It opined that the importance of a chosen family is sometimes lost to the traditional assumption that the natal family is respectful of a person’s choices and freedoms and therefore, the Courts must not become allies in this misunderstanding especially while dealing with the cases involving habeas corpus petition.

In light of this of the aforementioned observations, the Court issued set aside the counselling directions given by the HC and issued the following directions for dealing with habeas corpus petitions or petitions for police protection:

Habeas corpus petitions filed by a partner, friend or a natal family member must be given a priority in listing and hearing before the court.
In evaluating the locus standi of a partner or friend, the court must not make a roving enquiry into the precise nature of the relationship between the appellant and the person.
The effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the corpus.
The Court during interactions must conduct in-camera proceedings to ensure privacy and safety of the detained individual.
The Court must avoid undue influence on the detained individual’s wishes, especially concerning their sexual orientation or gender identity.
To grant immediate release if the detained individual expresses a desire not to return to their alleged detainer.
It must prohibit courts from directing counselling or parental care, focusing solely on ascertaining the individual’s will.
To maintain neutrality and respect for LGBTQ+ identities throughout legal proceedings.

The Court held that these guidelines must be strictly adhered while dealing with habeas corpus petitions to protect the fundamental rights and dignity of intimate partners, and members of the LGBTQ+ communities in illegal detention.

Accordingly, the Court disposed of the appeal in view of the report of the Judicial Officer.

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Judgement Reviewed by – Keerthi K

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22 Mar

The Supreme Court outlined relevant factors to modify the sentence imposed on the accused under Section 302 of IPC

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Blog # Supreme Court, #aggravating and mitigating factors, #attempt to commit suicide, #kerala hc, #Modification of sentence, #Principle of proportionality, #Quadraple Murder, #Section 302 of IPC, #Trespass

Case title – Navas @ Mulanavas Vs State of Kerala

Case no. – Criminal Appeal No. 1215 OF 2011

Decision on – March 18th, 2024

Quoram – Justice B. R. Gavai, Justice K.V. Viswanathan and Justice Sandeep Mehta

Facts of the case

The case pertains to the offence of quadruple murder. The appellant was accused of the murder of Ramachandra, his wife Latha, their daughter Chitra and his mother Karthiayani Amma. According to the prosecution case, the appellant also had an illicit relationship with deceased Latha. When she tried to distance herself from the appellant, he felt deceived and trespassed into the house intending to harm her.

The gruesome incident happened on the night of 3rd November, 2005. The accused upon reaching the house tried to create a hole in the eastern wall and gained access into the house. It was also alleged that he carried 2 knives and an iron rod and caused the death of the family members. After committing the heinous crime, the accused attempted to commit suicide.

The domestic help, after arriving to the house on 4^th morning observed peculiar things around the house and alarmed the neighbours about it. The neighbour witnessing the commotion outside the house reported the same to the Police. The ASI rushed to the spot with his police party, inspected the surroundings and decided to break into the house for further investigation. As they entered, they found the dead bodies of all the family members and blood droplets across the house. The investigating officer also found the accused lying on the floor with a cut injury on his left wrist.

The ASI registered a suo motu FIR and produced the accused before the Trial Court. The accused gave a statement while being examined under Section 313 Cr.P.C. He advanced that, he had arrived to the house to commit suicide with Latha in pursuance of the pact made between them. He then stated that somebody else had gained access into the house and caused the death of all victims and consequently he proceeded to commit suicide.

Both the trial Court and the High Court closely marshalled the circumstantial evidence in the case and concluded that the accused alone was responsible for the death of the four deceased and convicted him under Sections 302 and 449 IPC for the murder and under Section 309 IPC for attempt to commit suicide. The accused aggrieved by the decision of the HC appealed before the Apex Court.

Legal Provisions

Section 302 IPC – Punishment for murder

Section 309 IPC – Attempt to commit suicide

Section 449 IPC – House-trespass in order to commit offence punishable with death

Issue – Whether the quantum of sentence imposed on the appellant for the offence under Section 302 of IPC was excessive given the facts and circumstances of the case?

Submission of the parties

The Counsel for the appellant mainly asserted that the case made out by the prosecution falls short of the proof needed in a case which is based entirely on circumstantial evidence. He contended that with the available evidence on record the conviction of the appellant would be unsustainable. The Counsel thereby pleaded that the sentence of 30 years without remission is excessive and prayed for appropriate modification in the sentence to meet the ends of justice.

The Counsel for the State vehemently rebutted the arguments of the appellant and contended that the Trial Court and the High Court have correctly arrived at the conclusion of guilt. He contended that the case initially warranted death penalty but, the High Court had modified it to a sentence of imprisonment for 30 years without remission for the offence under Section 302 and thus the same did not deserve any further modification.

Court’s Analysis and Judgement

The Supreme Court considered the submissions of both the parties, perused the material on record and extensively analyzed circumstances presented in evidence. It was thoroughly convinced with the findings of the Trial Court and High Court thus, maintained the conviction.

The Court heavily relied on the principle established in Swamy Shraddananda v. State of Karnataka case, to determine the proportionality of the sentence. It emphasized the principle of proportionality in sentencing, balancing the aggravating and mitigating factors.

The Court observed that there are no straitjacket formulae for deciding the period of sentence and is subjective in nature. It needs to be decided on the facts and circumstances of the case and but, this discretion should be exercised on reasonable grounds.

The Court reiterated certain factors while deciding convicts period of sentence before remission could be sought – (a)the number of deceased who are victims of that crime and their age and gender; (b) the nature of injuries including sexual assault if any; (c) the motive for which the offence was committed; (d) whether the offence was committed when the convict was on bail in another case; (e) the premeditated nature of the offence; (f) the relationship between the offender and the victim; etc

The Supreme Court noted that the act committed by the accused was pre-planned which involved cold-blooded murder of four persons, including a child and an elderly woman. However, the Court considered mitigating factors such as the appellant’s young age at the time of the offence (28 years), absence of a profit motive, his behavior in jail, and the fact that he did not try to flee from justice to modify his sentence.

The Court upheld the judgement of the High Court which convicted the appellant under Sections 302, 449 and 309 of IPC. It tailored the sentence imposed under Section 302 IPC but refused to make any changes in the sentence imposed under Section 449 & Section 309 IPC.

The Apex Court, however, modified the sentence to 25 years of imprisonment without remission under Section 302 IPC, including the period already served. The Court held that this revised sentence would meet the ends of justice and thereby partly allowed the appeal.

Judgement Reviewed by – Keerthi K

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18 Mar

Absence of Proper Identification Parade raises Doubt on the Admissibility of the Deposition by the Court: Supreme Court

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Blog # Supreme Court, #Dacoity, #Deposition, #Doubt, #Identification Parade, #kerala hc

Case title – Jafar Vs State of Kerala

Case no. – Criminal Appeal No. 1607 OF 2009

Decision on – March 15, 2024

Quoram – Justice B.R. Gavai and Justice Sandeep Mehta

Facts of the case

In this case, the case of the prosecution was that in 2004, the accused persons came with a vehicle to the building where retail shops of Kerala State Beverages Corporation were situated with an intention to commit dacoity. In consonance of the intent, they were armed with deadly weapons like iron lever and wooden bar. The appellant kicked on the naval portion of the security guard at the gate and beat him with an iron lever on the right leg which resulted in fracture. The appellant was convicted under Section 397 read with Section 395 of the IPC and was sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 10,000.

Other accused persons beat him with the wooden bar on various parts of his body and then tied his legs and hands with bath towels and made him lie on the cot. Thereafter, they fastened his body on the cot with a piece of bed sheet and the remaining piece was pushed into his mouth. They mishandled him and then committed robbery of mobile phone, wrist watch, and torch. They also destroyed the light in the building and lock of the shutters of the retail shop. Hence, a case was registered against the accused.

The Judicial Magistrate First Class took cognizance of the matter only against accused No. 2, 3, and 5 as other accused were absconded. The court found accused Nos. 2(Appellant) and 3 guilty and as such convicted them for the said offences.

Submission of the Parties

The Counsel for the appellant submitted that the conviction is based on no evidence and contended that the appeal deserves to be allowed.

The Counsel for the State, on the contrary, submitted that both the Courts had concurrently, upon appreciation of the evidence, found the appellant to be guilty and hence, no interference would be warranted.

Court’s Analysis and Judgement

The Court observed that the conviction of the accused was primarily based on the deposition of PW-1, who was a security guard. The Court noted that PW-1 identified the accused persons since the police had shown him only those two people. Thereby, concluded that the identification of the appellant by PW 1 is quite doubtful as there no identification parade conducted.

The Court pointed out that in the absence of proper identification parade being conducted, the identification for the first time in the Court cannot be said to be free from doubt.

The Court thus held that the judgment of the Kerala High Court dismissing the appeal and the Trial Court convicting the appellant are not sustainable in law.

Accordingly, the Apex Court allowed the appeal, quashed the impugned judgment, and acquitted the appellant.

Judgement Reviewed by – Keerthi K

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15 Mar

The Kerala High Court upholds the Conviction of Father under the POCSO Act for Sexually Assaulting his 9 year old Daughter

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Blog # Pocso Act, #Daughter, #Father, #kerala hc, #life imprisonment, #Sexual Assault, #Special Court, #sterling witness

Case title – Stephen VS State of Kerala

Case no. – CRL.A No. 138 OF 2017

Decision on – March 05, 2024

Quoram – Justice P.B. Suresh Kumar & Justice Johnson John

Facts of the case

The appellant in the instant case is none other than the father of the victim. The accusation against the accused was that he penetrated his penis into the mouth of the victim who was aged 9 years then and threatened her of death, if she discloses the same to anyone.

The Special Court took cognizance of the matter and observed that when the accused was questioned on the incriminating evidence he denied the same and maintained that he has been falsely implicated in the case, with a view to avoid him at the instance of his wife, who maintains an illicit relationship with another. The Court did not find a case fit for acquittal and when called upon for evidence, the accused failed to adduce the same. Hence, the Court convicted and sentenced him to imprisonment and to pay fine for the offences punishable under Section 5(n) read with Section 6 and Section 9(n) read with Section 10 of the POCSO Act, 2012 and Section 506 Part 2 of the IPC.

Submissions on behalf of the Appellant

The Learned Counsel for the accused submitted that the there is no evidence in the case to prove the alleged act of penetrative sexual assault except the evidence tendered by PW2 and further contended that the same was not trustworthy.

He contended that even if the arguendo is accepted the sentence imposed on the accused is grossly disproportionate to the gravity of the offence alleged and pleaded the Court to rectify the same.

Issue

Whether the conviction of the accused and the sentence imposed on him are sustainable in law?

Court’s Analysis and Judgement

The Court examining the statements given by PW1(mother of the victim) and PW2(victim) observed that both of them stood by their statements and there were no instances to doubt the veracity of evidence tendered by them.

The Court noted that the evidence of the victim was the only thing on record to determine the case and it is a settled law that the evidence of the victim of a sexual assault can be the sole basis of a conviction. However, relying on the decision in Rai Sandeep v. State (NCT of Delhi) the Court pointed out that in order to base a conviction solely on the evidence of the rape victim, such evidence shall be of a sterling quality.

The Court observed that the evidence tendered by the victim in the case satisfies the requirement of a sterling witness and therefore, affirmed the decision of the Special Court. The Court also upheld the charges framed against the accused and the punishment imposed on him by the Special Court.

The Kerala High Court, thereby, rejected the appeal of an accused and convicted him under POCSO Act for committing aggravated penetrative sexual assault on his nine-year-old daughter.

Judgement Reviewed by – Keerthi K

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22 Nov

Entrustment of property for a specific purpose is not affected by the criminal breach of trust regarding normal commercial transactions – Kerala High court

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Blog #kerala hc

Case Title: Rajappan Assari v. State of Kerala

Case Number: Crl. Rev. Pet. No. 1177 OF 2005

Appearance

Counsel for the Revision Petitioner: Advocate Pirappancode V.S. Sudhir

Counsel for the Respondent: Senior Public Prosecutor C.N. Prabhakaran

CORAM : P.SOMARAJAN JUDGE

Introduction

The High Court of Kerala restated that there shall be an expressed and implied trust of property or entrustment for any specific purpose to attract the liability for criminal breach of trust as provided under Section 406 IPC.

Facts of the case

This revision is by the accused who was convicted for the offense under Section 406 IPC by both the trial Magistrate and the first appellate court.

The prosecution case is that the accused along with other accused were conducting a partnership business in the name of M/s Rajappan Achary and had accepted a fixed deposit from different persons offering high interest @ 24% and after getting the deposit, misappropriated the same for their use. PW3 is one among the victims, who set the criminal law in motion on the allegation of misappropriation of a deposit of Rs.1,54,345/-.

Both the courts found that the accused was guilty of offense punishable under Section 406 IPC and convicted thereunder and sentenced to undergo rigorous imprisonment for a period of three years by the trial Magistrate. But it was modified by the first appellate court by imposing a lesser sentence of a fine of Rs.1,75,000/-, in default, to undergo simple imprisonment for six months. Both the trial court and the first appellate court acquitted accused No.1 of the offenses punishable under Section 420 and 120B IPC. It is against the concurrent finding of conviction of accused No.1 for the offense punishable under Section 406 IPC and the sentence imposed, he came up in revision.

The material question raised pertains to the criminal liability that can be extended under Section 406 IPC when there is neither express nor implied trust and whether both the courts below are justified in convicting the accused for the said offense without satisfying the existence of the either express or implied trust.

There should be an express or implied trust of property or entrustment for any specific purpose to attract the criminal responsibility punishable under Section 406 IPC. The incorporated by Act 40 of 1973

Analysis of the court

t thus held that failure to comply with the agreement would not attract the offense punishable under Section 406 IPC.

The conviction and sentence imposed on the accused were thus set aside.

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Written By

Kaulav roy chowdhury

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