//
archives

IndianPenal Code

This tag is associated with 107 posts

whether the consent given by woman believing the man’s promise to marry her, is a consent which excludes the offence of rape. = Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. = where the accused had assured the prosecutrix that he would marry her and had sexual affair, which was repeated on several occasions as well. But he did not marry and she became pregnant. That was a case where there was delay of eight months in filing the complaint. The accused was given the benefit of doubt holding that it would not be possible to conclude that the alleged sexual act was committed without the consent of the prosecutrix. 18. We have already referred to the evidence of PW2 to PW4 and that their consistent version is that PW2 had previous acquaintance with the accused being her elder brother’s friend for a period of more than two years before the date of incident. The place of the alleged incident and the time is very crucial, so for as this case is concerned. It was early morning at 8.30 AM and the place of the alleged incident was on the side of a public road. If she had made any semblance of resistance or made any hue and cry it would have attracted large number of people from the locality. Further the first information report, as already indicated, was lodged after a period of 10 months of the alleged incident. All these factors cast some shadow of doubt on the version of PW2.=The trial Court as well as the High Court has committed an error in holding that the accused is guilty of the offence punishable under Section 376 IPC. In such circumstances, we are inclined to allow this appeal and set aside the conviction and sentence imposed on the appellant and order accordingly.

 published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40795   REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1467 OF 2013 [Arising out of SLP (Crl.) No. 3093 of 2012] Kaini Rajan .. Appellant Versus State of Kerala .. Respondent J U D G M E N T K. S. Radhakrishnan, J. Leave granted. 2. This appeal … Continue reading

Death and if not life, death or life, life and if not death, is the swinging progression of the criminal jurisprudence in India as far as capital punishment is concerned. The Code of Criminal Procedure, 1898, under Section 367(5) reads: “If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.”= Imprisonment for life of a convict is till the end of his biological life as held by the Constitution Bench in Gopal Vinayak Godse vs. The State of Maharashtra and Others[37] case (supra). Hence, there is no point in saying that the sentences would run consecutively. However, we make it clear that in case the sentence of imprisonment for life is remitted or commuted to any specified period (in any case, not less than fourteen years in view of Section 433A of the Cr.PC.), the sentence of imprisonment under Section 307 of IPC shall commence thereafter.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40743 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 165-166 OF 2011 Sunil Damodar Gaikwad … Appellant (s) Versus State of Maharashtra … Respondent (s) J U D G M E N T KURIAN, J.:   1. Death and if not life, death or life, life and if not death, … Continue reading

Section 367(5) reads= Death and if not life, death or life, life and if not death, is the swinging progression of the criminal jurisprudence in India as far as capital punishment is concerned. The Code of Criminal Procedure, 1898, under Section 367(5) reads: “If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.”= In the above facts and circumstances of the case, while upholding the conviction of the appellant under Section 302 and Section 307 of IPC, we modify the sentence as follows: a) For offence under Section 302 of IPC, the appellant is sentenced to life imprisonment. b) For offence under Section 307 of IPC, the appellant is convicted to imprisonment for a period of seven years. 28. Imprisonment for life of a convict is till the end of his biological life as held by the Constitution Bench in Gopal Vinayak Godse vs. The State of Maharashtra and Others[37] case (supra). Hence, there is no point in saying that the sentences would run consecutively. However, we make it clear that in case the sentence of imprisonment for life is remitted or commuted to any specified period (in any case, not less than fourteen years in view of Section 433A of the Cr.PC.), the sentence of imprisonment under Section 307 of IPC shall commence thereafter. 29. The appeals are allowed as above.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40743 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 165-166 OF 2011 Sunil Damodar Gaikwad … Appellant (s) Versus State of Maharashtra … Respondent (s) J U D G M E N T KURIAN, J.:   1. Death and if not life, death or life, life and if not death, … Continue reading

Indian Succession Act, 1925: s.372 – Nominee – Right of – Claim for grant of Succession Certificate in respect of movable properties of deceased-husband – By first wife and separate claim by second wife and her children sired by deceased – Claim of second wife based on nomination in her favour – Trial Court granted Succession Certificate to the second wife on the ground that there was divorce between deceased and first wife and second wife was his legal widow – On appeal, High Court held that there was no evidence of divorce between first wife and deceased and granted Succession Certificate to first wife – Justification of – Held : The fact that second wife was nominee is proved – A nominee has a right to file application under s.372 – Deceased lived with the second wife for 20-25 years till his death and nominated her for availing death benefits – Under such circumstances, she was preferable even to legally wedded wife – High Court was not justified in granting claim of first wife to the exclusion not only of the nominee of deceased but also to the exclusion of his legitimate legal heirs – Therefore accepting the view of High Court that first wife was legitimate wife, yet, certificate is granted in favour of second wife who was mother of four children of deceased – To balance the equities, Succession Certificate is granted with a rider that second wife would protect 1/5th share of first wife. One `S’ was working in mines of Western Coalfield. `SB’ was first wife of `S’. There was no issue out of this wedlock. `S’ then married `V’. Two sons and two daughters were born to `V’. `S’ died while in service. Both `SB’ and `V’ filed separate application for obtaining the Succession Certificate with respect to the movable properties of deceased. It is admitted that `S’ had nominated `V’ to receive the dues and death benefits. `V’ in her application besides herself disclosed names of her children as the legal heirs of `S’. Trial Court held `V’ to be the legal widow of `S’ and her children to be legal heirs of `S’ and held `V’ entitled to grant of the Succession Certificate. The conclusion of Trial Court was based on the opinion that `S’ belonged to the `Shudra’ community and in Shudra community if the wife deserted her husband and no effort was made by the husband to take her back as his wife then under Hindu law it is presumed that divorce had taken place between the two. Thus, a finding was given that `S’ had divorced `SB’ and thereafter solemnized second marriage with `V’ and, therefore, the marriage of `V’ was legal. On appeal, High Court held that there was no evidence to hold that customary divorce had taken place between `SB’ and `S’ nor was there any pleading about the factum of any customary divorce or existence of any custom. Stopping here itself, the High Court directed that the Succession Certificate should be granted in favour of `SB’. In appeal to this Court, `V’ contended that while granting certificate in favour of `SB’, the claim of four children was altogether ignored as, admittedly, `SB’ had sought the certificate for herself alone; and that even if there was no divorce between `SB’ and `S’ and `V’ was not held to be his legal wife but since the children admittedly were sired by `S’, they were legitimate children entitled to inherit `S’. Citation: 2008 AIR 1420,2008(1 )SCR1030,2008(2 )SCC238 ,2008(1 )SCALE580 , Court Name: Supreme Court Allowing the appeal, the Court HELD: 1.1 There can be no dispute that `V’ had never pleaded any divorce, much less customary divorce between `SB’ and `S’. There were no pleadings and hence no issue arose on that count. Therefore, the High Court was right in holding that marriage between `SB’ and `S’ was very much subsisting when `S’ got married to `V’. Unfortunately, the High Court stopped there only and did not consider the question as to whether inspite of this factual scenario, `V’ could be rendered the Succession Certificate. The High Court almost presumed that Succession Certificate can be applied for only by the legally wedded wife to the exclusion of anybody else and completely ignored the admitted situation that this Succession Certificate was for the purposes of collecting the Provident Fund, Life Cover Scheme, Pension and amount of Life Insurance and amount of other dues in the nature of death benefits of deceased. The fact that `V’ was a nominee is not disputed by anyone and is, therefore proved. `V’ had claimed the Succession Certificate mentioning therein the names of four children whose status as legitimate children of `S’ could not and cannot be disputed. [Paras 9, 10] [1038-G-H; 1039-E-H] Govind Raju v. K. Muni Swami Gonder AND OTHERS AIR 1997 SC 10; Yamanji H. Jadhav v. Nirmala (2002) 2 SCC 637 – distinguished. Smt. Savitri Devi v. Manorama Bai AIR (1998) MP 114; Rameshwari Devi v. State of Bihar AND OTHERS (2000) 2 SCC 431 – referred to. 1.2. The law is clear that a nominee like `V’ who was claiming the death benefits arising out of the employment can always file an application under s.372 of the Indian Succession Act as there is nothing in that provision to prevent such a nominee from claiming the certificate on the basis of nomination. The High Court should have realised that `V’ was not only a nominee but also was the mother of four children of `S’ who were the legal heirs of `S’ and whose names were also found in Form A which was the declaration of `S’ during his life-time. In her application `V’ candidly pointed out the names of the four children as the legal heirs of `S’. No doubt that she herself has claimed to be a legal heir which status she could not claim but besides that she had the status of a nominee of `S’. She continued to stay with `S’ as his wife for long time and was a person of confidence for `S’; who had nominated her for his Provident Fund, Life Cover Scheme, Pension and amount of Life Insurance and amount of other dues. Under such circumstances she was always preferable even to the legally wedded wife like `SB’ who had never stayed with `S’ as his wife and who had claimed the Succession Certificate to the exclusion of legal heirs of `S’. [Para 10] [1040-C-G] 1.3 In the grant of Succession Certificate, the court has to use its discretion where the rival claims, are made for the Succession Certificate for the properties of the deceased. The High Court should have taken into consideration these crucial circumstances. Though High Court was right in holding that `SB’ was the only legitimate wife yet, the certificate is granted in favour of `V’ who was his nominee and the mother of his four children. However, to balance the equities, the Succession Certificate is granted to `V’ but with a rider that she would protect the 1/5th share of `SB’ in `S’ properties and would hand over the same to her. As the nominee `V’ would hold the 1/5th share of `SB’ in trust and would be responsible to pay the same to `SB’. For this purpose she is directed to give a security in the Trial Court to the satisfaction of the Trial Court. This Court is not in any way, deciding the status of `V’ finally. She may still prosecute her own remedies for establishing her own status independently of these proceedings. [Paras 10-12] [1040-B-H; 1041-C-F] Anuradha Mutatkar and Prakash Shrivastava for the Appellants. Sunita Sharma, Sudha Pal, Subramonium Prasad, Varuna Bhandari Guguani, Rameshwar Prasad Goyal and Sunil Roy for the Respondents.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=30159 CASE NO.: Appeal (civil) 575 of 2008 PETITIONER: Vidyadhari & Ors. RESPONDENT: Sukhrana Bai & Ors. DATE OF JUDGMENT: 22/01/2008 BENCH: S.B. Sinha & V.S. Sirpurkar JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.6758 of 2007) V.S. SIRPURKAR,J. 1. Leave granted. 2. A common judgment of … Continue reading

murder case -High Court of Andhra Pradesh at Hyderabad dated 13.2.2007 passed in Criminal Appeal No. 41 of 2005, reversing the judgment and order dated 22.12.2004 passed by the Additional Sessions Judge, Kadapa at Proddatur in Sessions Case No. 374 of 2000, by which and whereunder the respondents were found guilty and convicted under Section 148 of Indian Penal Code, 1860 (hereinafter referred as `the IPC’) and awarded a sentence of 2 years each. A1 and A2 had been convicted for the offence punishable under Section 302 IPC and they were awarded life imprisonment with a fine of Rs.500/- and in default, to undergo further simple imprisonment for one month. They were also convicted under the provisions of Section 3 of the Explosive Substances Act, 1908 (hereinafter referred to as the ‘Act 1908’) and had been awarded the sentence of 3 years with a fine of Rs.500/- and Rs.200/- respectively and, in default, to further undergo simple imprisonment for one month and 15 days respectively. They had further been convicted under Section 5 of the Act 1908, and were awarded the punishment of three years with a fine of Rs.500/- each, in default to suffer simple imprisonment for one month. A3 to A6 had been convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.500/- each under Section 302 read with Section 149 IPC and, in default of payment of fine, to undergo a further period of simple imprisonment of one month each. However, A3 was acquitted for the offence under Section 6 of the Act 1908. A4 and A5 were further convicted under Sections 3 and 5 of the Act 1908 and awarded the punishment of 3 years on each count with a fine of Rs.500/- and, in default, to undergo a further period of imprisonment for one month. However, all the sentences were directed to run concurrently.= In view of the above, the findings recorded by the High Court are liable to be set aside being perverse. The appeals succeed and are allowed. The judgment and order of the High Court dated 13.2.2007 passed in Crl.Appeal No. 41 of 2005 is set aside, and judgment and order of the trial court dated 22.12.2004 passed in Sessions Case No. 374/2000 is restored.

published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40724 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 84 of 2011   Gangabhavani …Appellant Versus Rayapati Venkat Reddy & Ors. …Respondents With CRIMINAL APPEAL NO. 86 of 2011     J U D G M E N T   Dr. B.S. CHAUHAN, J.   1. Both these … Continue reading

for conviction under Section 304B of IPC, it is obligatory on the part of the prosecution to establish that the death occurred within seven years of marriage. Sans the requirement of seven years, in this case, the offence would fall only under Section 498A of IPC. And for that matter, sans any of the five ingredients discussed at Paragraph 6 above herein, the offence will fall out of Section 304B of IPC. It has to be noted that the deceased had two children, the son had died earlier and there is a surviving daughter who is stated to be around seven years. Whether the said age of the daughter is at the time of evidence or at the time of the death of the deceased, is not clear. Neither PW-1, father of the deceased nor PW- 2 Sarpanch or any other witness has given any evidence with regard to the date of marriage. No document whatsoever has been produced with regard to the marriage. There is no evidence even with regard to the date of birth of the children. Also, according to PW-1 father of the deceased, the marriage had taken place five to seven years back. It has to be noted that DW-1 elder devrani/sister-in-law of the deceased had stated in her evidence that the marriage had taken place around eleven years back. Nobody has even spoken on the exact date of marriage. The death reportedly took place on 06.04.1990. The evidence was recorded in 1996. The High Court counted the eleven years from the date of recording of the evidence. However, on going through the evidence, it is not at all clear as to whether the same is with respect to the date of tendering evidence or with respect to the date of the incident. Hence, we set aside the conviction of the appellant under Section 304B of the Indian Penal Code (45 of 1860). The conviction under Section 498A of the Indian Penal Code (45 of 1860) is confirmed. However, taking note of the late evening age of the appellant, the substantive sentence is limited to the period undergone by him during the investigation/trial.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40720 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1308 OF 2013 Gurdip Singh … Appellant (s) Versus State of Punjab … Respondent (s) J U D G M E N T KURIAN, J.:   1. Close to be called a centenarian, the appellant is before us challenging the conviction … Continue reading

Presence of witness doubtful =According to the report (Exh.PAK) of the Deputy Director, Forensic Science Laboratory, Madhuban no linkage could be established between the bullets recovered from the dead body and the fire arms allegedly recovered at the instance of the accused both of which were sent for forensic examination. The learned Trial Court also noticed that PW-11 and PW-12 had identified the accused including the present appellant for the first time in Court. It was also held that the refusal of the accused to cooperate and take part in the test identification parade could not be held adversely against the accused on account of the fact that even earlier to the proposed test identification parade the accused were shown to PWs 11 and 12 and also to the son of the deceased. The mere claim of the prosecution that PW-11 Sohan Lal and PW-12 Bharat Lal were eye witnesses to the occurrence could not have been sufficient for the High Court to treat the ocular version of the said witnesses as the undisputed version of the occurrence. The High Court did not test the prosecution claim in the backdrop of the totality of the facts of the case. Having done so, we arrive at a different conclusion and, therefore, take the view that the High Court was not justified in reversing the acquittal of the accused-appellant Prem Singh. We, therefore, set aside the order of the High Court insofar as the present appellant is concerned and restore the order of acquittal passed by the learned Trial Court. The appeal is consequently allowed. If the appellant is presently in custody he be released

 published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40723  REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 925 OF 2009 Prem Singh … Appellant(s) Versus State of Haryana … Respondent(s) J U D G M E N T RANJAN GOGOI, J. 1. The appellant, Prem Singh, alongwith six others was charged for various offences punishable … Continue reading

Section 302, or Section 304 = whether the offence falls under first part of Section 304 or the second part.= Having regard to the parameters indicated in Gurmukh Singh’s case (supra), the offence seems to fall under the second part. There is no evidence of motive or previous enmity. The incident has taken place on the spur of the moment. There is no evidence regarding the intention behind the fatal consequence of the blow. There was only one blow. The accused is young. There was no premeditation. The evolution of the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the appellant. It was a trivial quarrel among the villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the appellant. The deceased was involved in the scuffle in the presence of his wife and he had actually been called upon by her to the spot so as to settle the score with the accused persons. The deceased had, in the scuffle, overpowered the first accused. That first accused was acquitted. Thus, considering all these aspects, we are of the view that it is a fit case to alter the punishment of imprisonment for life to imprisonment for a period of 10 years with fine of Rs.50,000/-. Ordered accordingly. Since the deceased has been left with a young widow and one child, the amount of fine thus recovered shall be paid as compensation to the widow and the child. In the event of the appellant defaulting to pay the fine, he shall undergo imprisonment for a further period of two years. In case the appellant has already served the term as above, he shall be released forthwith, if not required to be detained in connection with any other case. The appeal is allowed as above.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40704 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1285 OF 2013 [Arising out of S.L.P. (Criminal) No. 3028 of 2012] Chenda @ Chanda Ram … Appellant (s) Versus State of Chhatisgarh … Respondent (s) J U D G M E N T KURIAN, J.:   Leave granted. 2. ‘Homicide’, … Continue reading

No reduction of sentence =Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC. 23) It is imperative to mention that the legislature through the Criminal Law (Amendment) Act, 2013 has deleted this proviso in the wake of increasing crimes against women. Though, the said amendment will not come in the way of exercising discretion in this case, on perusal of the above legislative provision and catena of cases on the issue, we feel that the present case fails to fall within the ambit of exceptional case where the Court shall use its extraordinary discretion to reduce the period of sentence than the minimum prescribed.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40699   REPORTABLE   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL NOS.1278-1279 OF 2013 (Arising out of S.L.P. (Crl.) Nos. 1011-1012 of 2012) Shimbhu and Anr. …. Appellant(s) Versus State of Haryana …. Respondent(s) 2   J U D G M E N T P.Sathasivam,CJI. 1) Leave granted. 2) … Continue reading

Cryptic orders – Remand for fresh consideration = “It was necessary for the High Court to consider whether the trial court’s assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court’s concurrence with the trial court’s view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter.” 12. Tested on the touchstone of the aforesaid principles we find that there is total lack of deliberation and proper ratiocination. There has been really no assessment of evidence on record. The credibility of the witnesses has not appositely been adjudged. Affirmative satisfaction recorded by the High Court is far from being satisfactory. We are pained to say so, as we find that the learned trial Judge has written an extremely confused judgment replete with repetitions and in such a situation it becomes absolutely obligatory on the part of the High Court to be more careful to come to a definite conclusion about the guilt of the accused persons, for their liberty is jeopardized. It may be stated at the cost of repetition that it is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record. 13. It can be stated with certitude that appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not subserved, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt. Ergo, the emphasis is on the duty of the appellate court. 14. Consequently, the impugned judgment and order passed in Criminal Appeal No. 531 of 2004 by the High Court is set aside and the appeal preferred by the appellants is remitted for fresh disposal. The High Court is requested to dispose of the appeal as expeditiously as possible so that the Sword of Damocles is not kept hanging on the head of the appellants. As the appellants are on bail, they shall continue to remain on bail on same terms and conditions till the disposal of the appeal by the High Court.

published in http://judis.nic.in/supremecourt/filename=40689 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1517 OF 2007 Kamlesh Prabhudas Tanna & Another … Appellants Versus State of Gujarat …Respondent J U D G M E N T Dipak Misra, J. Assailing the legal acceptability of the judgment and order passed by the High Court of … Continue reading

Blog Stats

  • 2,867,400 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,904 other followers

Follow advocatemmmohan on WordPress.com