Search By Topic: Acquittal/ Quashing of FIR/ Comp./ Sentence undergone

451. (SC) 11-07-2022

A. Indian Penal Code, 1860 (45 of 1860), Sections 302, 34, 392 -- Indian Evidence Act, 1872 (1 of 1872), Section 27 – Robbery -- Murder -- Loot of Rs.5 lacs – Conviction based upon recovery – Legality of --  Prosecution is required to establish and prove that the amount which is recovered from the accused is the very amount which the complainant/the person from whom the amount is looted -- When the prosecution has failed to prove that the complainant and the deceased were carrying Rs.5 lakhs cash in the dicky of the scooter and it was the very looted amount which was recovered from the accused, the accused cannot be convicted on the basis of recovery of some cash.

(Para 2, 6.1)

B. Indian Penal Code, 1860 (45 of 1860), Sections 302, 34, 392 -- Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Robbery -- Murder -- Test Identification parade in Court room -- Prior thereto no TIP conducted by the Investigating Agency – When no TIP was conducted the first version of the complainant reflected in the FIR would play an important role -- Nothing has been mentioned in his first statement that he had seen the accused earlier and that he will be able to identify the accused -- In the deposition before the Court, complainant tried to improve the case by deposing that he had seen the accused in the city on one or two occasions -- The aforesaid was not disclosed in the FIR -- Even in the cross-examination as admitted by PW1 he did not disclose any description of the accused -- PW1 has specifically and categorically admitted in the cross-examination that it is incorrect that the accused were known earlier -- It would not be safe and/or prudent to convict the accused solely on the basis of their identification for the first time in the Court -- Conviction u/s 302 read with Section 34 and Section 392 IPC quashed and set aside -- Accused acquitted from the charges.

(Para 6, 6.2-6.7, 8)

457. (SC) 02-06-2022

A. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) – More than one dying declaration – Reliance upon -- Each one of them must be examined with care and caution and only after satisfying itself as to which of the dying declarations appears to be free from suspicious circumstances and has been made voluntarily, should it be accepted -- It is not necessary that in every case, a dying declaration ought to be corroborated with material evidence, ocular or otherwise -- It is more a rule of prudence that courts seek validation of the dying declaration from attending facts and circumstances and other evidence brought on record -- For the very same reason, a certificate by the doctor that the declarant was fit to make a statement, is treated as a rule of caution to establish the truthfulness of the statement made by the deceased.

(Para 19)

B. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) – Dying declaration – Infirmity in -- Reliance upon -- If a dying declaration suffers from some infirmity, it cannot be the sole basis for convicting the accused -- In those circumstances, the court must step back and consider whether the cumulative factors in a case make it difficult to rely upon the said dying declaration.

(Para 22)

C. Indian Evidence Act, 1872 (1 of 1872), Section 32(1) – Indian Penal Code, 1860 (45 of 1860), Section 302 – Acquittal in murder case -- Oral dying declaration – Reliance upon -- PW-2 and PW-12 have deposed that in her oral dying declaration, the deceased had referred to the dowry demands made on her by the appellant and the fact that he had suspected her character, which led to the alleged incident -- Nowhere in their testimonies is there any reference made to the prosecution version that the appellant was having an illicit relation with a widow residing in the neighbourhood, which was the main cause of acrimony between the couple and had resulted in the incident -- Diametrically different version of the reasons that led to the alleged incident casts a shadow on the entire testimony of PW-2 and PW-12, making it unsafe to rely on them and indict the appellant for the charge framed against him – Held, prosecution has failed to discharge the obligation cast on it of leading trustworthy corroborative evidence to back-up the testimonies of PW-2 and PW-12 – Their evidence cannot be treated as stellar enough to hold the appellant guilty for the offence of murdering his wife -- Hence, he is entitled to being granted benefit of doubt -- Appellant acquitted.

(Para 37-39)

461. (P&H HC) 01-06-2022

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Inherent power u/s 482 of Cr.P.C – Scope of – Power is not to be invoked as a matter of routine but to prevent the abuse of process of Court and to secure ends of justice -- This section gives the power to High Court to entertain applications which are not contemplated in the Code of Criminal Procedure, in the event, it is felt that the ends of justice will require that the Court can invoke the extraordinary powers which are to be exercised with restraint and not lightly -- In the event, the Court is satisfied that in order to secure the ends of justice, it should interfere under its inherent powers, it ought to do so.

(Para 7)

B. Indian Penal Code, 1860 (45 of 1860), Sections 376, 420 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Rape case – Compromise quashing of FIR -- Respondent no.2/girl has already attained the age of majority, has solemnized marriage with the petitioner and the couple is stated to be residing happily with each other -- In such circumstances, the possibility of conviction also become remote and bleak and continuation of criminal case will cause injustice not only to the petitioner but also to respondent No.2/girl, who is now legally wedded wife of the petitioner -- As such, it is a fit case for exercising the inherent jurisdiction u/s 482 of the Code, so as to secure the ends of justice -- Continuation of the prosecution would result in sheer abuse of process of law -- FIR qua the petitioner quashed.

(Para 8-12)

486. (SC) 09-03-2022

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 378 -- Acquittal by Trial court – Presumption of innocence – Power of Appellate Court -- It is well settled that:-

(A) While dealing with an appeal against acquittal, the reasons which had weighed with the Trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the Trial Court deserves to be upturned .

(B) With an order of acquittal by the Trial Court, the normal presumption of innocence in a criminal matter gets reinforced.

(C) If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal.

(Para 7)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 20, 50 – Code of Criminal Procedure, 1973 (2 of 1974), Section 378, 379 -- Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, Section 2A -- NDPS case -- Acquittal by Trial court – Conviction by High court – Non-compliance of requirement of affording an option for personal search – However, no recovery from personal search -- High Court proceeded to consider the evidence on record straightaway without considering the reasons that had weighed with the Trial Court -- It is true that the personal search did not result in recovery of any contraband material but the non-compliance of requirement of affording an option, was one of the reasons which weighed with the Trial Court in disbelieving the case of the prosecution -- Assessment on facts made by the Trial Court was absolutely correct and did not call for any interference by the High Court – Appeal allowed, judgment and order passed by the High Court set aside and order of acquittal recorded by the Trial Court restored.

(Para 8-13)

491. (SC) 25-01-2022

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 401 – Acquittal of accused – Revisional Powers for conviction -- Section 401 (3) of Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction -- High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.

(Para 9)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 401 – Acquittal by the first appellate court -- Revisional Powers for conviction -- High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial -- High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction -- Order of conviction is therefore unsustainable, beyond the scope and ambit of Section 401 Cr.P.C., more particularly sub-section (3) of Section 401 Cr.P.C.

(Para 9)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 378(4) -- Acquittal in complaint case – Right to appeal -- Where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court.

(Para 10.1)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 372, 378(4), 401 -- Acquittal of accused – Non-preferring of appeal by victim -- Revisional jurisdiction -- In a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be.

(Para 10.2)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 401(5) -- Power of High Court to treat Revision as Appeal -- Where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly.

(Para 11)

F. Code of Criminal Procedure, 1973 (2 of 1974), Section 372, 401(3)(5) -- Acquittal of accused – Conviction by High court in revision – Impugned common judgment and order passed by the High Court reversing the acquittal and convicting the accused quashed and set aside – Matters remitted to the High Court – High Court directed to treat the revision applications as appeals under Section 372 Cr.P.C. and thereafter to decide and dispose of the same in accordance with law on their own merits.

(Para 12, 13)

496. (SC) 11-08-2021

A. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Test Identification parade/ TIP – Object of -- Purpose of holding a test identification parade during the stage of investigation is only to ensure that the investigating agency prima facie was proceeding in the right direction where the accused may be unknown or there was a fleeting glance of the accused.

(Para 9)

B. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Indian Penal Code, 1860 (45 of 1860), Section 395, 397 – Dacoity case -- Test Identification parade/ TIP -- FIR was registered against unknown persons -- Case of the prosecution solely rests on identification in the TIP -- A test identification parade u/s 9 of the Evidence Act is not substantive evidence in a criminal prosecution but is only corroborative evidence -- Mere identification in the test identification parade cannot form the substantive basis for conviction unless there are other facts and circumstances corroborating the identification.

(Para 9)

C. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Test Identification parade/ TIP – Onus to Prove -- Onus lies on the prosecution to establish that the TIP was held in accordance with law -- It is only after the prosecution prima facie establishes a valid TIP having been held, the question of considering any objection to the same arises -- If the prosecution has failed to establish that a TIP was properly held by examining the witnesses to the same, there is nothing for the accused to disprove.

(Para 10)

D. Indian Evidence Act, 1872 (1 of 1872), Section 9 -- Indian Penal Code, 1860 (45 of 1860), Section 395, 397 – Dacoity case -- Test Identification parade/ TIP -- Magistrate conducted the TIP -- Magistrate has not been examined -- No explanation is forthcoming why the Magistrate was not examined -- Only evidence available is that of PW-4 the SHO that during the investigation the TIP was held in the District Jail and he identifies the proceedings in the Court -- Identification of the proceedings is irrelevant as he could not have been present during the TIP -- There cannot be repeated TIPs till such time that the prosecution is successful in obtaining identification of the accused -- PW-1 who is the mother of PW-2, and both of them are stated to have been present in the house when the occurrence took place, did not identify any of the appellants -- Identification by a minor boy and that too in the 3rd and 4th rounds insofar as the present appellants are concerned -- In the nature of the TIP held it is completely non est in the law and the benefit has to go to the accused.

(Para 11,12)

499. (SC) 28-07-2021

A. Indian Evidence Act, 1872 (1 of 1872), Section 118 -- Child witness – Reliability of -- Criminal jurisprudence does not hold that the evidence of a child witness is unreliable and can be discarded -- A child who is aged about 11 to 12 years certainly has reasonably developed mental faculty to see, absorb and appreciate -- Evidence of a child witness alone can also form the basis for conviction -- Mere absence of any corroborative evidence in addition to that of the child witness by itself cannot alone discredit a child witness -- More so when he is the sole witness, a heightened level of scrutiny is called for.

(Para 7)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 313 – Statement u/s 313 Cr.P.C. – Value of -- Allegation that the appellant stuffed cloth in the mouth of the deceased was serious and specific against her – Held, in the absence of any question having been put to her in this regard u/s 313 Cr.P.C. the appellant has been seriously prejudiced in her defence -- Procedure u/s 313 CrPC is but a facet of the principles of natural justice giving an opportunity to an accused to present the defence -- Burden of proof on an accused in support of the defence taken u/s 313 CrPC is not beyond all reasonable doubt as it lies on the prosecution to prove the charge -- Accused has merely to create a doubt -- It will be for the prosecution then to establish beyond reasonable doubt that no benefit can flow from the same to the accused.

(Para 9, 10)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 – Dowry Prohibition Act, 1961, (28 of 1961), Section 3, 4 -- Indian Evidence Act, 1872 (1 of 1872), Section 118 – Dowry death/ Murder – Acquittal of Jethani -- PW-2/ Child witness was examined nearly one year after the occurrence -- Court has, therefore, to satisfy itself that all possibilities of tutoring or otherwise are ruled out and what was deposed was nothing but the truth -- According to PW-2, the appellant stuffed cloth in the mouth of the deceased, thereafter others tied her up and set her on fire leading to 95% burns -- He states that after the deceased had suffered burn injuries he had seen the entire scenario including the room where the burnt articles were kept including that he was a witness to his sister being put in a vehicle while being taken to the hospital -- He then states that the deceased in that condition was speaking -- At no stage has the witness deposed that the cloth was taken out from her mouth -- It stands to reason that if cloth was stuffed in the mouth of deceased she would have been unable to speak -- PW-8/ Doctor deposed that there was no cloth recovered from the mouth of the deceased -- He states that the mouth of the deceased was closed, the jaws were shut, no cloth was present in the mouth but burnt cloth was present on the whole body starting from the wrist -- More crucially he states that all the 32 teeth were intact – Blisters were present at various parts of the body but he does not talk about any blister being present in the mouth -- No injuries of any nature have been found inside the mouth neither has the cloth been found – Court not satisfied that the evidence of PW-2 attributing a specific role to the appellant is of such a sterling quality so as to inspire confidence in the court to base the conviction on the sole evidence of a child witness -- Appellant was a daughter-in-law like the deceased herself -- Nature of the evidence makes it highly unlikely that she would have engaged in such actions -- Benefit of doubt in the circumstances has to be given to the appellant.

(Para 7, 11-13)

500. (P&H HC) 27-04-2021

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 201 -- Indian Penal Code, 1860 (45 of 1860), Sections 420, 467, 468, 471, 120-B -- Locus-standi of complainant -- If a forgery had been done and mis-representation has been made, any person can set law in motion.

(Para 22)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 201 -- Indian Penal Code, 1860 (45 of 1860), Sections 420, 467, 468, 471, 120-B -- Representation of the People Act, 1951 (43 of 1951), Section 31 -- Summoning order – Challenge to -- Justice hurried is Justice buried -- It is the settled principle that the Magistrate could have always differed with police report, but once it had been approved by the Commissioner of Police, who had been directed by High Court to look into the same and it was on record and the record of the same could have been summoned from the office of the DCP -- Magistrate could not brushed aside and ignored the report, summoning order was passed on the same day the inquiry report (Ex.CW8/C) was exhibited when produced by the complainant -- Thus, the old adage came into play that is “Justice hurried is Justice buried” -- Summoning order is liable to be quashed on this ground.

(Para 26)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 201 – Indian Penal Code, 1860 (45 of 1860), Sections 420, 467, 468, 471, 120-B -- Representation of the People Act, 1951 (43 of 1951), Section 31 -- Forgery case -- Summoning order – Challenge to -- Basis for summoning was on the strength of photocopy of the documents -- Allegations of forgery would not be justified by the Trial Court in the absence of the originals as such and without an opinion of any expert evidence -- Mere the strength of the photocopies produced and in the absence of any sufficient evidence, summoning order on the said basis is not legally sustainable.

(Para 32-35)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 201 – Summoning of accused -- Criminal law should not be set into motion as a matter of course -- Magistrate is not a silent spectator at the time of recording of preliminary evidence and summoning the accused on the asking is not to be done unless there is cogent evidence and there is a applicability of mind.

(Para 35)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 197, 201 -- Indian Penal Code, 1860 (45 of 1860), Sections 420, 467, 468, 471, 120-B -- Representation of the People Act, 1951 (43 of 1951), Section 31 -- Forgery case -- Summoning of government employee as accused – Sanction of government – Requirement of -- Without the necessary sanction the Trial Court was not justified in summoning the said accused and he is entitled to the protection u/s 197 Cr.P.C. and there is a legal bar as such to initiate his summoning.

(Para 35-39)