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Supreme Court Clarifies Age Determination Under JJ Act: School Records Trump Medical Opinion.

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CASE TITLE – Vinod Katara v. State of U.P

CASE NUMBER – Writ Petition (CRL.) No(S). 121 OF 2022

DATED ON – 05.03.2024

QUORUM – Justice B.R. Gavai & Justice Sandeep Mehta

 

FACTS OF THE CASE

The petitioner herein was arraigned as an accused for the offence of murder committed on 10th September, 1982. The petitioner along with three co-accused was convicted by the trial Court for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter being referred to as ‘IPC’) vide judgment dated 6th January, 1986 and were sentenced to undergo rigorous imprisonment for life. The convicts including the petitioner herein preferred Criminal Appeal No. 133 of 1986 before the Allahabad High Court. During the pendency of appeal, the sentence awarded to the petitioner by the trial Court was suspended and he was released on bail. The said appeal came to be rejected vide judgment dated 4th March, 2016 and the conviction of the petitioner and the sentence awarded to him by the trial Court were affirmed. The petitioner was taken into custody after the dismissal of the appeal by the High Court. The High Court of Judicature at Allahabad, while considering a PIL bearing Crl.(PIL) Misc. W.P. No. 855 of 2012, vide order dated 24th May, 2012 directed the Juvenile Justice Board(s) (hereinafter being referred to as the ‘Board’) in the State of Uttar Pradesh to hold enquiries for determination of age of the convicts who were languishing in jail wherein the possibility was felt that the convict might have been a juvenile at the time of incident. Pursuant to the said order of the High Court, the petitioner herein who was at the relevant point of time lodged in District Jail, Mathura was subjected to examination by a Medical Board on 10th December, 2021. The Medical Board conducted X-rays of the skull and sternum of the petitioner and gave an opinion that on the date of the report, the petitioner herein was around 56 years of age. Based on the said report of the Medical Board, the petitioner has preferred the instant writ petition claiming that he was around 15 years of age on the date of the incident i.e. 10th September, 1982. An inquiry in pursuance was conducted by the learned Additional District and Sessions Judge, Court No. 5, Agra who had forwarded a report dated 21st October, 2022 opining that from the contemporaneous evidence placed during the inquiry, the date of birth of the petitioner was 2nd July, 1960 and he was major on the date of the incident.

 

ISSUE

Whether there is substantial evidence to prove that the accussed/petitioner was a major when he committed the crime and should he be convicted as such.

 

CONTENTIONS BY THE APPELLANT

The Learned Counsel appearing for the petitioner vehemently and fervently contended that the conclusions drawn by the learned Additional District and Sessions Judge in the report dated 21st October, 2022 that it would not be possible to determine the age of the accused accurately based on the X-ray examination is unsustainable in light of the earlier medical report dated 10th December, 2021 wherein the Medical Board has given a pertinent opinion that the age of the petitioner as on the said date was around 56 years. He vehemently contended that the attendance register/school record on which the learned Additional District and Sessions Judge placed implicit reliance is not a reliable piece of evidence because the concerned Principal of the school neither verified the documents nor was he examined in evidence. He contended that as per Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter being referred to as the ‘JJ Act’), where contemporaneous reliable school record is not available, the Court can place reliance either on other documentary evidence or in absence thereof, the Medical Board’s opinion based on X-ray examination can be taken into account to determine the age of the person claiming juvenility.

 

CONTENTIONS BY THE RESPONDENT

The Learned AAG vehemently opposed the submissions advanced by the learned counsel for the petitioner and urged that the inquiry report had been submitted by the learned Additional District and Sessions Judge, as a consequence of direction given by the Supreme Court, and such inquiry report is based on detailed process of collection of evidence and analysis thereof. He submitted that the inquiry officer, i.e., the learned Additional District and Sessions Judge, after minute appreciation and evaluation of the evidence has categorically found that the date of birth of the petitioner as entered in the contemporaneous school record was 2nd July, 1960, which is the actual date of birth of the petitioner and as a consequence, the petitioner does not deserve the relief claimed for.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court after having minutely perused the inquiry report and the evidence led during the inquiry, were of the opinion that the conclusions drawn by the learned Additional District and Sessions Judge that the actual date of birth of the accused petitioner is 2nd July, 1960 and the opinion of the Medical Board that estimation of age based on X-ray examination becomes uncertain after 25 years is apropos and deserves to be accepted. They stated that Section 94(2) of the JJ Act provides for the mode of determination of age. In the order of priorities, the date of birth certificate from the school stands at the highest pedestal whereas ossification test has been kept at the last rung to be considered, only in the absence of the criteria Nos. 1 and 2, i.e. in absence of both certificate from school and birth certificate issued by a Corporation/Municipal Authority/Panchayat. In the wake of the above discussion, The Hon’ble Supreme Court found no merit in the writ petition which was then dismissed as such.

 

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Gauhati HC rejects Uxoricide conviction due to weak Circumstantial evidence

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CASE TITLE – Abdul Sukkur v. The State of Assam

CASE NUMBER – Criminal Appeal [J] no. 84/2017

DATED ON – 22.05.2024

QUORUM – Justice Manish Choudhury & Justice Robin Phukan

 

FACTS OF THE CASE

The accused-appellant had been charged with uxoricide. In order to bring home the charge of murder under Section 302, IPC, Both sides had examined 7 [seven] nos. of witnesses viz. [i] P.W.1 – Mahabbat Ali; [ii] P.W.2 – Rahima Begum; [iii] P.W.3 – Sahab Uddin; [iv] P.W.4 – Dr. Zakir Hussain Laskar; [v] P.W.5 – Abdul Mannan; [vi] P.W.6 – Samsul Islam; and [vii] P.W.7 – Ashim Ranjan Das. In addition, 7 [seven] nos. of documents were exhibited and those documents were – [i] Ext.-1 – First Information Report; [ii] Ext.-2 – Seizure list; [iii] Ext.-3 – PostMortem Examination Report; [iv] Ext.-4 – Inquest Report; [v] Ext.-5 – Sketch Map of the place of occurrence; [vi] Ext.-6 – Charge Sheet; and [vii] Ext.-7 – Certified copy of General Diary Entry. Two material exhibits viz. [i] Mat.Ext.-1 – Spade; and [ii] Mat.Ext.-2 – Broken lance, were also exhibited. P.W.1 informed over phone that in the previous night, his co-villager viz. Abdul Sukkur, that is, the accused killed his wife by assaulting her and the deadbody was lying inside his house. The I.O. of the case, P.W.7 commenced the inquest on the deadbody of the deceased, Jamila Begum at the place of occurrence at 11-30 a.m. and completed the same at 12-30 p.m. vide Ext.-4, Inquest Report. In Ext.-7, Inquest Report, it was described that the deadbody was lying in a sleeping position inside her dwelling house with cut marks on her head and knee. Ext.-7, Inquest Report was signed by P.W.1, Mahabbat Ali and P.W.3, Sahab Uddin.

 

ISSUE

Whether the evidence on record is adequate to point towards the guilt of the Accused-Appellant.

 

CONTENTIONS BY THE APPELLANT

The Learned Amicus Curiae appearing for the accused-appellant submitted that out of the 7 Nos. of prosecution witnesses, only one witness, that is, P.W.2 appeared to be present at the place of occurrence in and around the time when the incident had happened. P.W.2 and two other prosecution witnesses, that is, P.W.3 and P.W.5 were declared hostile by the prosecution. She stated that though the prosecution side had cross-examined the three of them, that is, P.W.2, P.W.3 and P.W.5, but none of them were confronted with their previous statements so as to prove any contradiction with their testimonies adduced before the court vis-à-vis their previous statements. The learned Amicus Curiae had further contended that though the incident had occurred inside the house of the accused-appellant and the deceased but they were not alone as there were other inmates in the house at the relevant time. None of the prosecution witnesses had attributed the act of assault to the accused-appellant and as such, the learned trial court had erred to reach a finding that the prosecution had brought the charge for the offence of murder beyond all reasonable doubts.

 

CONTENTIONS BY THE RESPONDENT

The Learned Additional Public Prosecutor appearing for the respondent State submitted that the entire testimonies of the prosecution witnesses who were declared hostile by the prosecution, were not washed off the records altogether. The remaining parts of the testimonies of the prosecution witnesses – P.W.2, P.W.3 and P.W.5, who were declared hostile, can be relied upon along with other corroborating evidence if such remaining parts of their testimonies are found creditworthy. The remaining parts of the testimonies of the hostile witnesses were found reliable enough to consider with other evidence/materials on record and stated that the learned trial court after proper appreciation of the entire evidence/materials on record, had rightly arrived at the finding on the charge of murder. The learned Additional Public Prosecutor submitted that from the evidence/materials on record, it had emerged that there was no possibility of any third person to commit the crime, and thus, it was the accused-appellant who had, in all probability, committed the murder of his wife.

 

COURT ANALYSIS AND JUDGEMENT

The Gauhati High Court stated that on a meticulous examination of the testimonies of the prosecution witnesses, they found that none of the witnesses had stated that he or she had witnessed the incident or any act of assault. It is also settled that merely because a witness is declared hostile his entire evidence is to be excluded from consideration. Merely because the court has given permission to the Public Prosecutor to cross-examine his own witness describing him as a hostile witness, it does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness, if corroborated by other reliable evidence. It is for the court to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed with regard to a part of his testimony. They further pointed out that on a combined analysis of the above events stated to have occurred in the night intervening 29.11.2015 and 30.11.2015, as deposed by the afore-mentioned prosecution witnesses, it is found that none of them had made any specific mention about the time at which the incident inside the house of the accused had occurred though they said that it was in that night the incident had occurred. In view of such evidence, it is difficult to reach a finding as about the specific time of occurrence of the murderous assault on the deceased. The Hon’ble High Court stated that in case the prosecution has to bring home a charge on the basis of circumstances then also the principle that the prosecution has to prove its case beyond all reasonable doubts does not variate. Therefore, the prosecution is required to prove the case beyond all reasonable doubts by proving the entire chain of circumstances, not leaving any link missing for the accused to escape, and in the absence of any specific evidence as regards the time of occurrence, it was difficult for them to hold that the incident had occurred at a specific time in the night intervening 29.11.2015 and 30.11.2015. P.W.2 was the only witness who was present inside the house along with her parents and who had testified, and in her testimony, did not attribute anything adverse to the accused. The other prosecution witnesses were post-occurrence witnesses who did not witness the act of murderous assault on the deceased. It had also not emerged from the evidence/materials on record that the relationship between the accused and the deceased was not cordial. The Hon’ble High Court stated that in a case based on circumstantial evidence, motive assumes vital significance and it is considered to be a link in the chain, but no evidence was led by the prosecution on motive in the instant case. After which, The Hon’ble High Court held that the accused-appellant’s Criminal Appeal succeeds, because on appreciation of the evidence/materials on record in its entirety, it was not possible for them to hold that the prosecution was able to lead evidence which had unerringly pointed towards the guilt of the accused in respect of the murderous of assault on his wife during the relevant night by establishing all the circumstances conclusively and completely leaving no gap left in the chain to hold that it was only the accused who had perpetrated the crime and to rule out any possibility of any other person committing the crime. And in this circumstance, the benefit of the doubt has to go to the accused.

 

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Rajasthan High Court Granted probation to convicted appellants in an attempted murder case

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 Case title: Unknow VS State of Rajasthan

Case no.: S.B. Criminal Appeal No. 483/1993

Dated on:  February 19th 2024

Quorum:  Hon’ble. MR Justice GANESH RAM MEENA

FACTS OF THE CASE

The present criminal appeal has been preferred by the accused-appellants against the judgment of conviction and sentence dated 26.11.1993 passed by the Court of learned Special Judge, Prevention of Scheduled Castes/ Scheduled Tribes, Prevention of Atrocities, Jaipur (for short ‘the trial Court’) in Sessions Case No.88/1990. Five years Rigorous Imprisonment and fine of Rs.2,000/- and in default of payment of fine, to undergo 2 months imprisonment. Five years Rigorous Imprisonment and fine of Rs.2,000/- and in default of payment of fine, to undergo 2 months imprisonment. Fine of Rs.100/- each and in default of payment of fine each of the accused appellant has to undergo 15 days imprisonment. On filing of appeal, the sentence awarded to the accused appellants was suspended vide order dated 13.12.1993 and they were released on bail.

ISSUES

  • Whether the reformation of the accused-appellants and their peaceful conduct post-bail support the argument that they do not pose a risk to public safety and thus should be granted probation?
  • Whether the objections raised by the learned Public Prosecutor, opposing leniency and probation due to the nature and manner of the offense, should preclude the granting of probation to the accused-appellants?
  • Whether the prolonged duration of the trial and the resultant mental agony and harassment faced by the accused-appellants since 1993 warrant leniency in sentencing?
  • Whether the conviction and sentence of the accused-appellants by the trial court under Sections 307 and 323 read with Section 34 of the Indian Penal Code (IPC) were valid and justified?
  • Whether the accused-appellants are entitled to the benefit of probation under Section 4 of the Probation of Offenders Act, 1958, considering their age, lack of criminal antecedents, and behaviour post-conviction?

 LEGAL PROVISIONS

Indian Penal Code (IPC)

Section 307 IPC: This section pertains to the offense of attempt to murder. It deals with the intention or knowledge of committing murder, and the actions taken in furtherance of that intention. The maximum punishment under this section is imprisonment for up to 10 years, and if the act causes hurt, the punishment can extend to life imprisonment, along with a fine.

Section 323 IPC: This section addresses the punishment for voluntarily causing hurt. The punishment can be imprisonment for up to one year, or a fine up to one thousand rupees, or both.

Section 34 IPC: This section pertains to acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act as if it were done by him alone.

Probation of Offenders Act, 1958

Section 4: This section allows the court to release certain offenders on probation of good conduct instead of sentencing them to imprisonment. The court can use this provision for offenders who have committed offenses not punishable with death or life imprisonment, and if the court deems it appropriate after considering the offender’s age, character, and the circumstances of the case.

CONTENTIONS OF THE APPELLANT

Mr. V.R. Bajwa, Senior Counsel assisted by Mr. Amar Kumar and Ms. Savita Nathawat, appearing for the accused appellants instead of arguing the appeal on its merits with regard to challenge to the conviction and sentence, confines his arguments for grant of benefit of probation to the appellants under the provisions of Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act of 1958’). Counsel further submits that except the present case, no case has been registered against the accused-appellants. Counsel further submits that the accused appellants are living peacefully in the society without there being any criminal antecedents to their discredit. Senior Counsel further submits that the accused-appellants have faced trial for about three years and against the impugned judgment, they preferred the appeal in the year, 1993. Thus, from the last 33 years, the accused-appellants are facing mental agony and harassment because of pendency of criminal case registered against them. Counsel further submits that the maximum sentence under Section 307 of IPC is 07 years but in the present case, the accused appellant No.1 Nawal Kishore has been convicted for offence under Section 307 of IPC and accused appellant No.2-Rajesh has been convicted for the offence under section 34 read with section 307 IPC and they been sentenced to undergo five years Rigorous Imprisonment and for the offence under section 323 read with section 34 IPC a fine of Rs.100/- has been imposed upon each of them. Senior Counsel further submits that the accused appellant No.1 is 59 years of age and the accused appellant No.2 is 56 years of age. Thus, taking into consideration the aforesaid facts, the accused-appellants may be given the benefit of probation under the provisions of the Act of 1958.

CONTENTIONS OF THE RESPONDENTS

Learned Public Prosecutor appearing for the State opposed the prayer made by the counsel appearing for the appellants and submits that looking to the allegations and the manner in which the incident took place, the appellants are not entitled for any kind of leniency in awarding sentence as well as the benefit of probation under Section 4 of the Act of 1958. Considered the submissions made by the Senior Counsel appearing for the appellants as well as the learned Public Prosecutor. Learned trial Court while considering the issue of granting leniency to the accused appellants, has rejected their prayer in regard to the leniency. Section 4 of the Act of 1958 nowhere says that the benefit of probation cannot be allowed to an accused who is above 21 years of age. The Act of 1958 deals with the powers of the Court to release certain offenders for good conduct.

COURT’S ANALYSIS AND JUDGEMENT

The Statement of Objects and Reasons of the said Act explains the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved. The main object of sentencing a convicted person is to bring in him certain character reformation and to keep him away from the society so as to see that the impact of his criminal character does not put any adverse impact on any other person. In the present case, after conviction of the accused appellants, their sentence was suspended and they were release on bail vide order dated 13.12.1993. Since after their release on bail, they are living in the society peacefully without there being any criminal antecedents to their discredit. There is no bar under law to extend the benefit of probation to convict of above 21 years age. After taking into due consideration the legislative intent of the Act and the decision as referred in above paragraphs, this Court deems it appropriate to extend the benefit of probation to the appellants under Section 4 of the Act of 1958. the present appeal is partly allowed. While maintaining the conviction of the present appellant No.1- Nawal Kishore for the offence under Section 307 of IPC and of accused appellant No.2-Rajesh for the offence under section 34 read with section 307 IPC and of both the accused appellants under section 323 read with section 34 IPC, as recorded by the learned Trial Court in the impugned judgment, this Court interferes only with the sentence part of the said judgment and directs that the appellants shall be released on probation under Section 4 of the Act of 1958 upon their furnishing a personal bond in a sum of Rs. 50,000/- each and two sureties in the sum of Rs. 25,000/- each to the satisfaction of the learned Trial Court with a further undertaking that they shall maintain peace and good behaviour for a period of two years and shall not repeat the offence. The appellants are allowed two months’ time to furnish the bail bonds, sureties and undertaking as ordered above. The appellants are on bail. They need not to surrender. Their bail bonds stand cancelled accordingly. The Registry is directed to send back record of the case to the trial court forthwith.

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Patna High Court: Acquits Convicts in 2011 Murder Case Due to Lack of Evidence and Witness Credibility

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Patna High Court: Acquits Convicts in 2011 Murder Case Due to Lack of Evidence and Witness Credibility

Case title:  Rajendra Yadav VS The State of Bihar

Case no.:  CRIMINAL APPEAL (DB) No.940 of 2018

Dated on: 14th May 2024

Quorum:  Hon’ble. MR JUSTICE VIPUL M. PANCHOLI and Hon’ble. MR. JUSTICE RAMESH CHAND MALVIYA.

FACTS OF THE CASE

The present appeals have been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the impugned judgment of conviction dated 13.06.2018 and order of sentence dated 14.06.2018 passed by the learned 3rd Additional District and Sessions Judge, Araria, in connection with Sessions Trial No. 1151/2012, T.R. No.64/2017 (arising out of Bhargama P.S. Case No. 43/2011) by which all the appellants have been convicted and appellant/convict Rajendra Yadav has been sentenced to undergo rigorous imprisonment for life with a fine of Rs. 50,000/- (fifty thousand) for the offence punishable under Section- 302 of I.P.C. In default of payment of fine, the convict will have to undergo further one year imprisonment. He has further been sentenced to undergo rigorous imprisonment for three years with a fine of Rs. 5000/- (five thousand) for the offence punishable under Section 27 of the Arms Act. In default of payment of fine, he will have to under further imprisonment for six months. The sentences have been directed to run concurrently. Appellants/convicts Badri Yadav, Kailash Yadav and Mithilesh Yadav @ Akhilesh Yadav have been sentenced to undergo rigorous for life with a fine of Rs.50,000/- (fifty thousand) each for the offence punishable under Section -302/149 of I.P.C. In default of payment of fine, the convicts will have to further undergo one year imprisonment. They have also been sentenced to undergo rigorous imprisonment for 2 years and 6 months with a fine of Rs.5000/ each for the offence punishable under Section-148 of I.P.C. In default of payment of fine, they will have to undergo further imprisonment for three months each. All the sentences have been directed to run concurrently. At the outset, it is relevant to note that Mr. Amarnath Jha, learned counsel, earlier appearing for the appellants, states that he has already given no objection to the appellants. However, nobody has filed appearance in Cr. Appeal (D.B.) No. 931 of 2018, which is pending for hearing since long. The present appeal is of the year 2018 and out of three appeals, in one appeal, appellant/convict is in custody for more than 12 years. Therefore, we have no option, but to proceed with the matter and, therefore, we have requested Mr. Sandeep Kumar Pandey to assist the Court in the matter and, with his consent, he is appointed as Amicus Curiae. “On 08.05.2011, the informant was returning from Parsa Haat by his brother-in-law’s motorcycle bearing Regn. No. BR 38 A-8010. After reaching the door of Satya Narayan Mandal, S/o Late Moti Mandal of his village at around at 6 O’clock, he was having a discussion about farming activities. All on a sudden 1. Rajendra Yadav S/o- Jagdeesh Yadav 2. Badri Yadav S/o- Late Janak Yadav 3. Kailash Yadav S/o- Badri Yadav 4. Shaili Devi, w/o Badri Yadav 5. Gajen Yadav S/o- Mohan Yadav Vill- Jahad and 6. Badri Yadav’s Son-in-law Mithilesh Yadav S/o- Not known, Vill- Belodih, P.S not known, Dist. Madhepura came there, out of whom Rajendra Yadav S/o Late Jagdeesh Yadav had a country-made rifle in his hand and others had sticks in their hands. They surrounded the informant and started beating him at Satyanarayan Mandal’s door.

ISSUES

  1. Whether the delay in sending the First Information Report (FIR) to the Magistrate was justified and whether it affected the prosecution’s case.
  2. Whether the appellants were falsely implicated in the occurrence due to an election dispute, as claimed by the defence.
  3. Whether the testimonies of the prosecution’s eye-witnesses, who were relatives of the deceased, were reliable and trustworthy, given the contradictions and inconsistencies in their statements.
  4. Whether the medical evidence, including the post-mortem report, supported the prosecution’s timeline and version of events.

LEGAL PROVISIONS

Section 302 of the Indian Penal Code (IPC): Punishment for Murder

This section deals with the punishment for murder. It states that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to a fine.

Section 149 of the Indian Penal Code (IPC): Every member of unlawful assembly guilty of offense committed in prosecution of common object

This section states that if an offense is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offense, is a member of the same assembly, is guilty of that offense.

Section 148 of the Indian Penal Code (IPC): Rioting, armed with a deadly weapon

This section deals with the punishment for rioting, armed with a deadly weapon or with anything which, used as a weapon of offense, is likely to cause death. The punishment can extend to imprisonment for three years, or with a fine, or with both.

Section 27 of the Arms Act, 1959: Punishment for using arms, etc. This section prescribes the punishment for using arms in contravention of Section 5 of the Arms Act, 1959, which deals with the requirement of a license to possess or carry any firearm or ammunition. The punishment can range from imprisonment for not less than three years, which may extend to seven years, and also with a fine.

Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.): Appeals from convictions This section allows any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge to appeal to the High Court.

 

CONTENTIONS OF THE APPELLANT

Heard Mr. Ravindra Kumar, assisted by Mr. Rajesh Roy, Manoj Kumar and Mr. Sandeep Kumar Pandey, learned counsels for the appellant, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent State and Mr. Shashi Bhushan Kumar, learned counsel for the informant (in Cr. Appeal (D.B.) No.940 of 2018, Mr. Kumar Dhirendra, assisted by Mr. Diwanshu Kumar, learned counsel for the appellants, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent State (in Cr. Appeal (D.B.) No.880 of 2018 and Mr. Sandeep Kumar, learned Amicus Curiae, for the appellant and Mr. Ajay Mishra, learned A.P.P. for the respondent-State in

Cr. Appeal (D.B.) No. 931 of 2018). Learned advocates appearing for the respective appellants have submitted that there is a delay in sending the F.I.R. to the Magistrate Court and the appellants have been falsely implicated in the occurrence in question. Though the informant has stated that six accused persons named in the F.I.R. came with weapons and assaulted the informant as well as one Samindo and they sustained injuries, the injury report of the aforesaid persons were not produced before the Court nor the Doctor was examined. It is further submitted that the informant and Samindo Yadav are not the eye-witnesses, despite which they were projected as eye-witnesses by the prosecution. The aforesaid witnesses are near relatives of the deceased and, therefore, their deposition is required to be scrutinized carefully. It is submitted that looking to the major contradictions in the depositions of the so-called eye-witnesses, it can be said that they are not trustworthy and, therefore, their depositions be discarded. At this stage, it is also submitted that P.Ws. 2, 3 and 4 are projected as eye-witnesses to the occurrence by the prosecution however, from the deposition given by P.W. 10 Bhola Singh, who was the 1st Investigating Officer, it is revealed that he had recorded the statements of the informant Mahesh Yadav and Simindo Yadav only and thereafter he was transferred and the charge of investigation was handed over to another officer namely Arvind Kumar Yadav. Surprisingly, Arvind Kumar Yadav has also not been examined by the prosecution. It is further submitted that thereafter P.W. 9 Dev Raj Ray took over the charge of investigation on 30th of June, 2011 and from the deposition of the said witness, it is revealed that the said I.O. has recorded the statements of the other so-called eye-witnesses only on 01.08.2011. It is, thus, contended that Rajendra Yadav, Bindeshwari Yadav, Garib Yadav and Manoj Yadav are not the eye-witnesses. Even otherwise, there are major contradictions in their deposition and, therefore, the Trial Court ought to have discarded the depositions given by the aforesaid witnesses. Even P.W.11, the doctor Binod Bisnoi who had conducted the post mortem of the dead body of the deceased, has stated that the post mortem was conducted on 09.05.2011 and the said witness has further stated that the time elapsed since death is within 48 hours. Learned counsels, therefore, submitted that the medical evidence does not support the version given by the informant and the so-called eye-witnesses. Learned advocates for the appellants, therefore, urged that the Trial Court has committed grave error while recording the judgment of conviction and order of sentence. Therefore, this Court may quash and set aside the same and thereby allow all the appeals

CONTENTIONS OF THE RESPONDENTS

Learned counsel for the informant and the learned Additional Public Prosecutors have opposed the appeals filed by the appellants. It is submitted that P.W.1 to P.W.5 and P.W. 7 are the eye-witnesses to the occurrence in question and all of them have supported the case of the prosecution. The specific allegation is levelled against the appellant Rajendra Yadav that he fired from his country-made rifle and the bullet hit the chest of the deceased causing his death. The medical evidence also supports and corroborates the case of the eye-witnesses. The Investigating Officers have also deposed the manner in which the investigation was carried out by them and, therefore, there is ample material on record which suggests that the appellants have killed the deceased. It is further submitted that the prosecution has also proved the motive on the part of the appellants to kill the deceased and thereby the prosecution has proved the case against all the appellants beyond reasonable doubt. Hence, no error is committed by the Trial Court while passing the impugned judgment and order. Learned counsels for the respondents, therefore, urged that all these appeals be dismissed. learned counsel for the informant and the learned Additional Public Prosecutors have opposed the appeals filed by the appellants. It is submitted that P.W.1 to P.W.5 and P.W. 7 are the eye-witnesses to the occurrence in question and all of them have supported the case of the prosecution. The specific allegation is levelled against the appellant Rajendra Yadav that he fired from his country-made rifle and the bullet hit the chest of the deceased causing his death. The medical evidence also supports and corroborates the case of the eye-witnesses. The Investigating Officers have also deposed the manner in which the investigation was carried out by them and, therefore, there is ample material on record which suggests that the appellants have killed the deceased. It is further submitted that the prosecution has also proved the motive on the part of the appellants to kill the deceased and thereby the prosecution has proved the case against all the appellants beyond reasonable doubt. Hence, no error is committed by the Trial Court while passing the impugned judgment and order. Learned counsels for the respondents, therefore, urged that all these appeals be dismissed.

COURT’S ANALYSIS AND JUDGEMENT

We have considered the submissions canvassed by the learned counsels for the parties. We have also perused the evidence of prosecution witnesses and also perused the documentary evidence exhibited. P.W. 1 is Simindo Yadav. He has stated in his examination-in-chief that the incident took place one and a half years ago at 06:00 p.m. He was returning from Parsa Haat when he saw that Badri Yadav, Kailash, Shaili Devi, Mithilesh Yadav, Rajendra and Gajen Yadav were present at the door of Badri Yadav. Badri Yadav had caught hold of Ramesh and ordered to shoot him. Ramesh was shot at and he died. The witness was also beaten. Police had come to the place of occurrence. Post Mortem was done. He claims to identify all the accused persons by face and identifies accused Rajendra Yadav present in Court. Death, in my opinion, due to Hemorrhage and shock as a result of above-mentioned firearm injury, we have considered the submissions canvassed by the learned counsels for the parties. We have re appreciated the entire evidence led by the prosecution. We have also perused the material placed on record. It would emerge from the record that P.W. 5 Mahesh Yadav is the informant whose fardbeyan was recorded on 01.08.2011 at 09:00 p.m., wherein he has stated that at about 06:30 p.m., when he was returning on his motorcycle with one Anil Yadav and they came near the house of Satya Narain Mandal, they saw that all the accused named in the F.I.R. came at the place with deadly weapons and they started beating the informant near the house of Satya Narain Mandal. At that time, his brother Ramesh Yadav and Simindo Yadav came there with a view to rescue the informant. Thereafter, Badri Yadav dragged Ramesh Yadav near his house. At that time, Rajendra Yadav fired from his country-made rifle and the bullet hit the chest of the brother of the informant. When Simindo Yadav tried to intervene, all the other accused persons gave stick blows to him. At that time, the other persons came upon hearing the commotion and sound of firing. When they saw, they found that Ramesh Yadav had died because of the gun-shot injury. At this stage, if the deposition given by P.W. 1 Simindo Yadav is carefully examined, in his examination-in chief they said witness has only stated that when he was returning from Parsa Haat, he saw that near the house of Badri Yadav, all the named accused were present and Badri Yadav caught hold of Ramesh Yadav and ordered to shoot him. Thereafter, he was shot at. The said witness was also assaulted. He has further stated that the police were informed after one and a half hours of the occurrence and police came at the place of occurrence around 10-11 p.m. Thus, from the deposition of the said witness, it is revealed that this witness has not given the name of the accused who had fired on the deceased. At this stage, the deposition of P.W. 5 is also required to be examined carefully. P.W. 5 is the informant. The said witness in his examination-in-chief has also given the name of all the accused. He has stated that he also sustained injury because of the assault made by the accused. He has also stated that there was huge blood spilled over the earth and the clothes were also blood-stained. However, he is not aware whether the same were seized by the Investigating Officer or not. It is pertinent to note that merely because the witnesses are near relatives and interested witnesses, their deposition cannot be discarded simply on that very ground. However, deposition of said witnesses requires to be scrutinized closely and carefully. If a witness is trustworthy, his version can be accepted. However, in the present case, from the deposition of the aforesaid two witnesses and the conduct of the said witnesses, we are of the view that they are not trustworthy and there are major contradictions and inconsistencies in their deposition. Hence, we are of the view that they are projected as eye-witnesses, but their presence at the place of occurrence is doubtful. Further, P.W.11 is Dr. Binod Bisnoi who had conducted the post mortem of the dead body of the deceased. The said doctor conducted the post mortem on 09.05.2011 when he was posted at Sadar Hospital. The said witness has stated the time elapsed since death to be within 48 hours. He had conducted the post mortem at 10:15 a.m. Thus, the post mortem was conducted within 16 hours. However, the doctor has stated the time elapsed since death to be within 48 hours. Thus, we are of the view that the medical evidence does not support the version given by the so-called eye-witnesses that the occurrence took place on 08.05.2011 at about 06:30 p.m. From the evidence led by the prosecution, it is further revealed that the Investigating Officer did not seize the blood-stained soil from the place of occurrence nor the blood-stained clothes of the deceased were sent for necessary analysis to the Forensic Science Laboratory. Even there is no recovery/discovery of the weapon allegedly used in commission of the alleged incident from any of the appellants. It is further revealed that it is the specific defence of the appellants that they have been falsely implicated in the present case because of the election dispute. Thus, from the aforesaid evidence led by the prosecution, we are of the view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt, despite which the Trial Court has recorded the impugned judgment of conviction and order of sentence. We have also gone through the reasoning recorded by the Trial Court and we are of the view that the Trial Court has committed grave error while passing the impugned judgment and order. Hence, the same deserve to be quashed and set aside. Accordingly, the impugned judgment of conviction dated 13.06.2018 and order of sentence dated 14.06.2018 passed by the learned 3rd Additional District and Sessions Judge, Araria, in connection with Sessions Trial No. 1151/2012, T.R. No.64/2017 (arising out of Bhargama P.S. Case No. 43/2011) are quashed and set aside. The appellants are acquitted of the charges levelled against them by the learned Trial Court. Since the appellant, namely Rajendra Yadav (in Cr. Appeal (D.B.) No. 940 of 2018) is in jail, he is directed to be released from custody forthwith, if his presence is not required in any other case. Rest all the appellants are on bail. They are discharged from the liabilities of their bail-bonds. he Patna High Court Legal Services Committee is, hereby, directed to pay ₹ 3,000 (Rupees Three Thousand) to Sandeep Kumar Pandey, learned Amicus Curiae as consolidated fee for the services rendered by him.

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Judgement Reviewed by – HARIRAGHAVA JP

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The State of Gujarat had no jurisdiction to entertain the prayers seeking remission of the convicts: Supreme court

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Case Title: Bilkis Yakub Rasool vs Union of India & Ors.

Case No: WP (CRL.) NO.491 OF 2022

Decided on: 08.01.2024

Coram: Hon’ble Mrs. Justice B.V. Nagarathna

 

 Facts of the Case

In the wake of the 2002 Gujarat riots, Bilkis Yakub Rasool, a young pregnant woman, endured the unimaginable – a brutal gang rape fueled by communal hatred and the tragic loss of her entire family. The Central Bureau of Investigation took over the case, leading to charges against 20 individuals – including police personnel and doctors – for gang rape, murder, and rioting. The trial was eventually transferred to a neutral location due to safety concerns. Ultimately, 11 individuals were convicted and sentenced to life imprisonment. Now, she challenges the early release of 11 convicts, arguing for justice both for herself and all victims of the riots. Citing the gravity of the crimes, her own lasting trauma, and concerns for her safety, Ms. Rasool’s writ petition seeks to ensure continued imprisonment for the perpetrators and uphold the principles of accountability in the face of heinous communal violence.

After the petitioner- victim filed a transfer petition, the trial was transferred from Ahmedabad to the competent and neutral court in Mumbai. Even after the Special judge convicted the 11 accused and sentenced them to life imprisonment, the trial court thereafter acquitted the remaining 5 police personnel and 2 doctors. Against the trial court when the state filed criminal appeals before the Bombay High Court it upheld the conviction of 11 persons accused. The high court further claimed the improper investigation by the Gujrat Police.

Respondent no. 3 filed a criminal application before the Gujrat High Court challenging the non-consideration of his application for premature release under Sections 433 and 433A of CrPC.            The Ministry of Home Affairs, Government of India conveyed its approval under Section 435 of the CrPC for the premature release of all 11 convicts.

This present writ has been filed to quash the orders of acquittal.

Legal Provision

Section 432 of CrPC –

Power to suspend or remit sentences.

When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without Conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

  1. Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the. presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
  2. In this section and in section 433, the expression” appropriate Government” means,-
  3. in cases where the sentence is for an offence against, or the order referred to in sub- section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
  4. in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

Section 433 in CrPC –

Power to commute sentence —

The appropriate Government may, without the consent of the person sentenced commute

(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for a fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for a fine;

(d) a sentence of simple imprisonment, for a fine.

Section 435 of CrPC states the powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence

Issue

  • Whether the writ petition filed under Article 32 of the constitution, is maintainable?
  • Whether the State of Gujrat had jurisdiction to entertain the prayers seeking remission of respondents?

Court Decision and Analysis

The Apex court held that the writ petition filed under Article 32 of the constitution, is maintainable and that the petitioner therein didn’t need to have filed a writ petition under Article 226 of the Constitution before the Gujarat High Court.

In view of Section 432 (7) read with Section 432 (1) and (2) of the CrPC, the court held that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of respondent Nos.3 to 13 herein as it was not the appropriate Government within the meaning of the aforesaid provisions. Subsequently, the remission orders are illegal and therefore quashed.

The court further ruled that the May 13, 2022 judgment was null and void due to the party seeking it concealing and misrepresenting crucial information.

The Gujarat remission orders for the 11 convicts (10.08.2022) were unlawful due to:

  1. Usurpation of power: Gujarat lacked authority, Maharashtra governed.
  2. Inapplicable policy: Gujarat’s remission policy didn’t apply to convicts.
  3. Ignored opinion: The Mumbai court’s opinion (required) was disregarded.
  4. Unpaid fine: The fine imposed by the Mumbai court and confirmed by Bombay HC remained unpaid, invalidating remission.

The court held that the plea of ‘protection of liberty’ of the 11 respondents cannot be accepted and that the Rule of Law must prevail.

 Hence, the present writ petition was allowed in the aforesaid terms, and all other pending applications were disposed off.

 

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Written by- Bhawana Bahety

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