Search By Topic: Penal Laws

455. (P&H HC) 21-04-2023

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 216 -- Charge -- Court has to consider the material with a view to find out if there is a ground for presuming that the accused has committed the offence -- Charge can be framed even on the basis of strong suspicion, if the same is supported with material on record.

(Para 4)

B. Indian Penal Code, 1860 (45 of 1860), Section 304, 304A -- Code of Criminal Procedure, 1973 (2 of 1974), Section 216 -- Rash and negligent driving – Culpable homicide not amounting to murder -- Charge u/s 304 IPC -- Allegation that petitioner was driving the oil tanker at a high speed, without blowing any horn, in a zig zag manner and intentionally struck with the scooter, which resulted in the death of all the three occupants of the scooter -- Prima facie, it appears to be a case of extreme negligence and rashness -- Alternative charge u/s 304A IPC has not been framed, such an error can be corrected by invoking the provisions of Section 216 Cr.P.C. – Charge u/s 304 affirmed, Ld. Trial Court advised to look into the alteration/amendment of the charge.

(Para 5-8)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 216 – Defective charge – Whether vitiate trial -- Accused is entitled to know with certainty and accuracy, the exact nature of charge against him, but the error in the charge, if any, can be corrected by invoking the provisions of Section 216 Cr.P.C. -- The defect in framing of the charge, per se, may not vitiate the trial.

(Para 6)

458. (SC) 21-04-2023

Indian Penal Code, 1860 (45 of 1860), Section 302, 397, 450 – Indian Evidence Act, 1872 (1 of 1872), Section 27, 106, 114(a) -- Murder – Recovery of stolen goods – Circumstantial evidence – Conviction of appellants:

-- A2 was found in possession of a bag carrying some of the stolen ornaments and, speaks against him, in terms of Section 114 (a) of the Indian Evidence Act, 1872 -- It was for A2 to explain as to how he came to be in possession of those stolen ornaments, u/s 106 of the Indian Evidence Act, 1872 -- However, no explanation was offered by him.

-- It is the prosecution’s case that A1 confessed to commission of the crime and upon being questioned as to the stolen gold ornaments, he himself went into the other room in his house and brought out a bag containing the gold ornaments -- This part of his confession admissible u/s 27 of the Indian Evidence Act, 1872, as it led to the recovery of the stolen gold ornaments.

Recovery of this stolen property from the accused would not be sufficient in itself to convict them for murder -- Inescapable fact remains that PWs 4, 6, and 10, who were witnesses independent of each other and who had no animosity or enmity with the accused, spoke in unison about seeing them running away from the house of PW-1 of the fateful night with bags in their possession -- No explanation is forthcoming as to why three separate witnesses would choose to implicate the accused falsely.

Sequence of events unfolded in quick succession during the intervening night of 21.08.2008 and 22.08.2008, leading to not only identification of the accused by the witnesses present but also their apprehension and arrest, apart from seizure of the stolen gold ornaments and cash from their possession, it is amply clear that there was no time or possibility for the police to hoist a false case upon them -- Minor discrepancies and shortcomings in the statements made by witnesses after passage of a few years would necessarily have to be discounted in such a scenario.

Conviction order upheld.

(Para 23-27)

462. (Madras HC) 20-04-2023

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 118, 138, 139 – Cheque bounce complaint -- Presumption – Rebuttal -- Account closed – Defence that accused misused the security cheque by filling up the name of wife -- Cheque was written and signed by the accused -- Return memo indicates that on the date when the cheque drawn, the bank account already closed -- Complainant caused notice, which was received by the accused -- In the cross examination it is elucidated from the complainant that her husband and sons are running business in wax printing and they have business transaction with the accused – Held, this fact is no way rebut the presumption enumerated under Section 139 of N.I.Act -- Accused cannot take a plea that the said cheque was given as a security for the transaction, which took place four years ago.

(Para 14-16)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 118, 138, 139 – Cheque bounce complaint -- Presumption – Rebuttal -- Capacity to pay -- As far as the source of income, the complainant in the cross examination has indicated her source and also though she is an house wife, her husband and son being the earning members, it cannot be ruled out that she has no wherewithal to lend Rs.5,00,000/- to the accused – Contention that subject cheque was given only as a security and the complainant has no wherewithal to advance Rs.5,00,000/-, both factually not proved even by preponderance of probability -- While there is a statutory presumption, mere denial or adducing evidence which does not shake the foundational fact proved by the complainant, can be taken as a probability.

(Para 17)

463. (SC) 20-04-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 304B, 498A – Indian Evidence Act, 1872 (1 of 1872), Section 113B – Dowry death – Acquittal -- Presumption regarding dowry death -- Mere death of the deceased being unnatural in the matrimonial home within seven years of marriage will not be sufficient to convict the accused under Section 304B and 498A IPC.

(Para 23)

B. Indian Penal Code, 1860 (45 of 1860), Section 304B, 498A – Indian Evidence Act, 1872 (1 of 1872), Section 113B – Dowry death – Acquittal -- Presumption regarding dowry death -- Cruelty or harassment has to be soon before the death.

-- None of the witnesses stated about the cruelty or harassment to the deceased by the appellant or any of his family members on account of demand of dowry soon before the death or otherwise. Rather harassment has not been narrated by anyone. It is only certain oral averments regarding demand of motorcycle and land which is also much prior to the incident. The aforesaid evidence led by the prosecution does not fulfil the pre-requisites to invoke presumption under Section 304B IPC or Section 113B of the Indian Evidence Act. Even the ingredients of Section 498A IPC are not made out for the same reason as there is no evidence of cruelty and harassment to the deceased soon before her death.

-- DW-1, who was head of the village at the time of incident, stated that the information about the death was given to the parents of the deceased and other family members and belongings of the deceased were handed over to her maternal grandmother and uncle after cremation -- His statement is in line with the admission made by (PW-3)/ maternal grandmother, PW-2/ maternal uncle of the deceased -- Meaning thereby that there was no suspicion regarding the death of the deceased.

On a collective appreciation of the evidence led by the prosecution, prerequisites to raise presumption u/s 304B IPC and Section 113B of the Indian Evidence Act having not been fulfilled, the conviction of the appellant cannot be justified.

(Para 16-23)

471. (SC) 17-04-2023

A. Unlawful Activities (Prevention) Act, 1967 (37 of 1967), Section 18, 19, 20, 39, 43D(5) – Explosive Substances Act, 1908 (6 of 1908), Section 4, 5 -- Indian Penal Code, 1860 (45 of 1860), Section 120-B, 302 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Murder – Offence under UAPA – Regular bail – No reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true -- Hence, the embargo on the grant of bail under proviso to sub-section (5) of Section 43D will not apply in the case -- Charge not framed, prosecution proposes to examine more than 140 witnesses -- Some of the accused are absconding -- Thus, no possibility of the trial commencing in the near future – Special Judge directed to release the appellants on bail on appropriate conditions determined by him after hearing the appellants and respondent.

(Para 21)

B. Indian Evidence Act, 1872 (1 of 1872), Section 25, 27 – Confession – Discovery of fact – Section 27 of the Evidence Act is an exception to the general rule under Section 25 that a confession made by an accused to a police officer is not admissible in evidence -- The first condition for the applicability of Section 27 is that the information given by the accused must lead to the discovery of the fact, which is the direct outcome of such information -- Only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused.

(Para 14)

476. (P&H HC) 17-04-2023

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 378 – Appeal against acquittal -- There is double presumption of innocence in favour of the respondent-accused -- Initial presumption of innocence is on account of the basic principle of criminal law that an accused is presumed to be innocent till proven guilty -- Secondly, said presumption is reinforced by the finding of acquittal recorded by the trial Court after trial based on the evidence – In these circumstances, onus is heavy on the petitioner/ complainant to show the illegality or impropriety of the finding recorded by the trial Court.

(Para 7)

B. Indian Penal Code, 1860 (45 of 1860), Section 405 – Criminal breach of trust – Following ingredients must be proved to constitute the offence of criminal breach of trust –

(A) entrusting a person with property or with any dominion over property;

(B) that the person entrusted (a) dishonestly misappropriated or converted that property to his own use, or (b) dishonestly used or disposed of that property or willfully suffered any other person to do so in violation, (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.

(Para 9)

C. Indian Penal Code, 1860 (45 of 1860), Section 405, 406 – Criminal breach of trust – Misappropriation of 1657 bags i.e. 1055 quintals 50 kg and 942 grams of paddy -- 6614 bags weighing 4286 quintals 60 kg paddy were stored for the purpose of milling -- Prosecution utterly failed to prove the dominion of the accused over the said property – Civil suit filed by the petitioner/ complainant/ FCI for recovery, on the same allegations, has already been dismissed by the Civil Court despite the fact that burden of proof in the civil suit is of much lesser degree compared to the criminal case – Prosecution utterly failed to prove the entrustment of the paddy bags, which was allegedly misappropriated – Acquittal order upheld.

(Para 10, 12, 13)

477. (SC) 13-04-2023

A. Border Security Force Act, 1968 (47 of 1968), Section 40, 46 -- Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985)-- Section 9, 25 – NDPS case – BSF Commandant – Acquittal -- Conviction by General Security Force Court --  Appellant was commanding the Force operating over a large area, including from where the Jerrycans (controlled substance under NDPS Act ) allegedly moved from the Indian side to the Pakistani side -- Actual manning of the area is by the subordinate personnel of the Force -- Subordinate personnel have been adjudged guilty, indicating their active involvement -- No direct evidence against the appellant – Held, appellant, being the Commandant, had no responsibility/ duty to prevent such incident -- ceteris paribus, without other material(s) incriminating the appellant or pointing to his guilt, the statement of a single person alone, ought not to have, in this instance, resulted in his conviction -- Impugned Judgment quashed, conviction and sentence set aside -- Appellant held entitled to full retiral benefits from the date of his superannuation till date.

(Para 38-51)

B. Uniform pattern of judgments -- Supreme Court held, it is desirable that all Courts and Tribunals, as a matter of practice, number paragraphs in all Orders and Judgments in seriatim -- Secretary-General shall circulate this judgement to the learned Registrars General of all High Courts, to place the same before Hon’ble the Chief Justices, to consider adoption of a uniform format for Judgments and Orders, including paragraphing -- The learned Chief Justices may direct the Courts and Tribunals subordinate to their High Courts accordingly as well.

(Para 56, 57)

485. (SC) 11-04-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 149, 302 – Code of Criminal Procedure, 1973 (2 of 1974), Section 319 -- Allegation of murder with the aid of Section 149 IPC – Unlawful assembly -- Charge against two person – In the report/FIR there were specific allegations against five accused persons and five accused persons were named in the FIR – Investigating officer charge-sheeted only two persons -- Remaining three accused persons came to be added as accused by the learned trial Court while allowing the application under Section 319 Cr.P.C -- As they absconded and therefore their trial came to be ordered to be separated – Held, when five persons were specifically named in the FIR and five persons are facing the trial may be separately, Section 149 IPC would be attracted.

(Para 10)

B. Indian Penal Code, 1860 (45 of 1860), Section 149, 302 – Unlawful assembly – Murder -- Once the respondent/ accused was found to be member of the unlawful assembly of more than five persons and he actually participated in commission of the offence may be the fatal blow might have been given by the another accused, still with the aid of Section 149 IPC, respondent/accused can be convicted for the offence under Section 302 IPC with the aid of Section 149 IPC -- Every person who, at the time of that offence, is a member of the same assembly, is guilty of that offence.

(Para 10.2)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 154 – Delay in FIR – Benefit of doubt -- When the delay has been sufficiently and properly explained, no reason to give benefit of doubt to the accused on the aforesaid ground that there was a delay of 3 ½ days in lodging the FIR.

(Para 11.1)

487. (Delhi HC) 11-04-2023

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 -- Vicarious liability -- Vicarious liability is a specific species and assumes critical importance, particularly when there is criminal liability involved and therefore, cannot be taken lightly -- If such an extension of principle of vicarious liability were to remain, it would go against the very grain and texture.

(Para 13)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Officer in Company -- Vicarious liability – Merely holding a designation or office in a company not sufficient for liability under section 141.

(Para 15)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 -- Vicarious liability – Bald averment against petitioner – Some accused dropped -- Bald averments against Accused No. 3-8 being directors of Accused-Company and in-charge of and responsible for the conduct, affairs and business of the company -- No specific averment made that this was so at the time of the commission of the offence -- Signatory of the cheque was also the Managing Director of the Company would be deemed to be in-charge, it was not as if the complainant was remediless -- Considering that Accused No.4 to 8 were dropped by the complainant, there was no reason for the complainant to have continued with proceedings against Accused No.3.

(Para 18)

D. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 -- Incharge of Company – Vicarious liability – Letter head of company – Reliance upon -- Merely the mention of the name of Accused No.3 on the letter head as being the Head of the Group, does not ipso facto or ipso jure make him in-charge of and responsible for the affairs and business of the company at the time the offence was committed.

(Para 19)

E. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 -- Vicarious liability – Non-Executive Director – Non-executive director may be the custodian of governance of the Company but are not involved in the day-to-day affairs of running its business and only monitor executive activities of the Company -- Phraseology used in Section 141 of the Act of being in charge and responsible to the Company for the conduct of the business of Company is a reference to an “executive activity” which imports an element of running day-to-day affairs of the Company and would not be extended to a role which is essentially supervisory, policy oriented, of oversight or regulatory i.e. non-executive in character.

(Para 21)

F. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141, 142 -- Companies Act, 1956 (1 of 1956), Section 175 – Companies Act, 2013 (No. 18 of 2013), Section 104, 203 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Non-executive Co-chairman – Managing Director and executive directors are appointed for a company to ensure that all executive decisions – Non Executive Directors are to advice or oversight of the functioning of the company -- Even the role of ‘Chairman’/ ‘Chairperson’ is not typically of an executive nature -- Creeping up an escalating liability to Chairpersons of large conglomerates/ companies for cheques issued in day-to-day affairs of the business of a company would unfairly and unnecessarily expand the provisions of vicarious liability under the provisions of the Negotiable Instruments Act – No prejudice is caused to the complainant as the signatory of the cheque, the Managing Director is already arrayed as accused -- Proceedings quashed qua the petitioner.

(Para 13, 22-26)

491. (P&H HC) 29-03-2023

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – Additional evidence -- Application u/s 311 Cr.P.C. – Who can file -- It is not necessary that the applicant has to be either complainant or prosecution or victim or a listed witness -- The provisions can be invoked by any other person who is able to show that the evidence of witness sought to be examined will be necessary for just decision of the case.

(Para 27)

B. Indian Evidence Act, 1872 (1 of 1872), Section 65-B – Certificate u/s 65-B of Evidence Act – Competent witness -- Certificate u/s 65-B and proving of the same, certainly goes to the root of the matter and therefore, the only person who is duly authorised regarding the same can be a competent witness in this regard.

(Para 19)

C. Indian Penal Code, 1860 (45 of 1860), Sections 153-A, 295-A, 298, 323, 406 and 506 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 --  Forcible conversion of religion -- Third petition – Regular bail --  Petitioner in jail for more than 1 year and 4 months -- 16 out of 34 witnesses have been examined -- Petitioner not involved in any other case except for one more FIR which was lodged on the next day pertaining to the similar kind of allegations – Court deemed it fit and proper to grant regular bail to the petitioner.

(Para 34, 35)

D. Indian Penal Code, 1860 (45 of 1860), Sections 153-A, 295-A, 342, 506 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Forcible conversion of religion -- Third bail petition – Regular bail -- Incarceration for more than 1 year and 5 months -- 8 out of 31 witnesses examined -- Petitioner not involved in any other case except for one more FIR which was lodged one day prior to the present case pertaining to the similar kind of allegations -- Court deemed it fit and proper to grant regular bail to the petitioner.

(Para 43)

495. (P&H HC) 22-03-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 379-A -- Snatching case -- Acquittal by trial court – Trustworthiness of witness -- Complainant stepped into the witness box as PW-6, in her examination-in-chief, she identified the accused, however, in the cross examination, she stated that the police had called her to the police station and had told her that her mobile phone had been recovered -- She stated in the cross examination that she had not told the police that the person in the police station was the same who had snatched the purse from her before the questioning of the accused started -- It has further come on record that no description of the accused had been given by the complainant at the time of registration of the FIR and even the number of the motorcycle could not be noted down by the complainant -- Cross examination of the complainant definitely created a dent in the case of the prosecution which was rightly considered by the trial Court.

(Para 9)

B. Indian Penal Code, 1860 (45 of 1860), Section 379-A -- Indian Evidence Act, 1872 (1 of 1872), Section 27 – Snatching case -- Acquittal by trial court -- Recovery of mobile and Rs. 12,000 on disclosure statement – Reliance upon -- No bill of mobile was produced on record -- It was not proved that the mobile phone which had been released on Sapurdari was the same which had been allegedly recovered from the accused -- PW-6-complaiannt duly stated in her evidence that the bill of the mobile phone and the details of the Sim had been handed over to the police, but nowhere the IMEI number was mentioned nor the bill of the mobile phone saw the light of the day – Insofar as the amount of Rs.12,000/- is concerned, there is nothing to show that these were the same Rs.12,000/- rupees which had been snatched from the complainant -- Anyone could be in possession of a sum of Rs.12,000/- and the mere recovery of the same from the said person would not mean that they had been snatched from someone -- Recovery alleged to have been made in pursuance to the disclosure statement suffered by the respondent-accused not proved -- No reliance can be placed upon the disclosure statement – Acquittal order upheld.

(Para 10)

498. (SC) 15-03-2023

A. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 -- Indian Evidence Act, 1872 (1 of 1872), Section 8, 27, 106 --  Murder -- Acquittal -- Circumstantial evidence – Last seen theory – Motive -- Virtually, the oral testimonies of PW-8 and PW-10 are at variance about the last seen and it becomes inconclusive – Prosecution has miserably failed to prove the alleged motive -- Though the deceased had met with a homicidal death it cannot be said that the rest of the circumstantial evidence culled out by the courts below unerringly point to the culpability of the appellants in the homicidal death of deceased -- Even the recovery of the weapon and the dress, at the instance of the appellant cannot, by itself, be conclusive as admittedly, the panch witnesses for their recovery also did not support the prosecution -- It is unsafe to maintain the conviction of the appellants; benefit of doubt extended – Appellants, acquitted.

(Para 29, 30)

B. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 --  Indian Evidence Act, 1872 (1 of 1872), Section 8, 106 --  Murder -- Circumstantial evidence – Motive -- Where the conviction is based on circumstantial evidence, motive assumes great significance -- Failure to establish the alleged motive in a case based on circumstantial evidence it can only be held that the said failure had weakened the case of the prosecution.

(Para 18-21)

C. Indian Penal Code, 1860 (45 of 1860), Section 302, 34 -- Indian Evidence Act, 1872 (1 of 1872), Section 8, 27 -- Murder -- Circumstantial evidence – Last seen theory -- In a case rested on circumstantial evidence and ‘last seen’ theory is relied on as a link in the chain of circumstances, the evidence relating the time at which the deceased was lastly seen with the accused has to be proved conclusively as when it is proximate with the time of finding the dead body the burden to establish the innocence would be that of the accused.

(Para 24)

499. (SC) 14-03-2023

A. Indian Evidence Act, 1872 (1 of 1872), Section 24 -- Extra-judicial confession – Corroboration not required -- Generally, it is a weak piece of evidence, however, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful -- It should be free of any inducement -- Evidentiary value of such confession also depends on the person to whom it is made -- Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith -- Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made -- As a matter of rule, corroboration is not required -- However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility.

(Para 5)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 24, 27 -- Extra-judicial confession – PW-1 to PW-6 including the complainant himself whose son was killed did not support prosecution -- Case of the prosecution was that the appellant had confessed to PW-1 to PW-9 -- Prosecution’s case about extrajudicial confession does not inspire confidence – No other circumstances brought on record which could support or corroborate the prosecution case -- Evidence in form of the extra-judicial confession of the appellant deserves to be discarded -- Conviction of the appellant cannot be sustained at all -- Appellant is acquitted of the offences alleged against him.

(Para 5-7)