Tag: BombayHC

-Report by Nidhi Jha

It was in a recent case of RAMESH LASHA PALVA AND ANR Vs THE STATE OF MAHARASHTRA, the Bombay High Court held that sharing common intention with the prime offenders is a vital factor for the accused to be convicted for that particular offence. Bombay High Court also clarified that for invoking Exception 4 under Section 300 IPC there are certain conditions that need to be fulfilled.

FACTS

On 12th November 2014, 2nd Additional Sessions Judge, Thane convicted both Ramesh Lasha Palva and Kashinath Lasha Palva under Section 302 read with 34 of IPC with imprisonment for life and also imposed a fine of Rs 1,000/- each for the murder of Lahanu Jivya Palva (deceased).

There was enmity between the Appellants and the deceased pertaining to the landed property because of which fights happened between them on various occasions. On 3rd November 2010 at around 1:00 am Appellant 1 i.e Ramesh Palva called Lahanu Jivya Palva (deceased). After some time when Lahanu went towards him, Appellant 2 i.e Kashinath Lasha Palva came from behind and hit Lahanu with a ‘musal’ (wooden pestle) and ran away. After getting treated at various hospitals Lahanu Jivya Palva was declared dead on 14th November 2010 while undergoing treatment at Sudarshan Hospital.

APPELLANT’S CONTENTION

The Appellant’s advocate submitted that On 3rd November 2010, Ramesh had filed N.C Complaint against Lahanu and 2 others stating that Lahanu (deceased) was abusing the sister of the Appellants in presence of Dinesh (PW-5) and Jitendra (PW-7). Jitendra (PW-7), Dinesh (PW-5) and Lahanu (deceased) were beating Ramesh. Lahanu was under the influence of liquor and fell down from the raised platform in a gutter and sustained an injury to his head. She submitted that because Lahanu was already having a dispute over property with the Appellants, they registered the present crime against the Appellants.

It was submitted by the Appellant’s advocate that the Act of Appellant No. 2 falls under Exception 4 of Section 300 and so the conviction of both the appellant under Section 302 of I.P.C is not appropriate.

DEFENDANT’S CONTENTION

There were three eyewitnesses to the incident that took place on 3rd November 2010. Bharati, the wife of the deceased said that due to the previous enmity, Appellant No.1 called her husband and when Lahanu approached him, Appellant No.2 came from behind and hit him with the ‘ musal’ and he ran away. She clearly stated that Appellant No.1 did nothing in the entire incident.

COURT’S DECISION

The court observed that the wife of the deceased categorically stated and also evidence indicated that, Appellant No.1 did nothing to the deceased hence he didn’t share the same intention of assaulting the deceased with Appellant No. 2.

Evidence also indicated that the intention of Appellant No. 2 was not to murder Lahanu neither he took any undue advantage or acted in a cruel or unusual manner. Also, there was no evidence proving that Appellant No.2 has come to the defendant’s place with the wooden pestle ( musal) with the intention of murdering as that tool is available commonly in every household for the purpose of pounding and grinding.

The act of the Appellant therefore according to the Court falls under the purview of Exception 4 of Section 300 of IPC and as he had no intention to commit the murder of Lahanu, Section 304 (Part II) of IPC would be attracted. Therefore Ramesh is acquitted of the charges framed against him by giving him the benefit of doubt and Appellant No.2 Kashinath is acquitted of charges of murder and convicted under Section 304 (Part II) of IPC, and he is sentenced to suffer R.I. for 10 years and to pay a fine of Rs.25,000/-; in default of payment of fine to further suffer R.I. for 1 year. And as Appellant No.2 Kashinath Lasha Palva is in jail since 12th November 2010 and has completed his sentence of 10 years, so he also has been acquitted from jail immediately.

-Report by Ojas Bhatnagar

The Bombay High Court has directed the Secretary of the Home Department, Maharashtra Government to compensate a Nigerian National for detaining him due to an error in the report. This has been held in the case of Novafor Samuel Inoamaobi vs The State of Maharashtra A Nigerian national was wrongly arrested under the NDPS (Narcotic Drugs and Psychotropic Substances) Act in 2020.

FACTS

The Anti-Terrorism Squad (ATS) received a tip that a Nigerian National would be coming to a particular spot at a specific time to sell cocaine. To prevent this, a raid was conducted by the same. The ATS arrested a person who looked suspicious and found cocaine in a blue plastic bag, some pink ecstasy tablets and heart-shaped pills. The seized material was sent to the Directorate of Forensic Science Laboratory and they prepared an examination report where they identified the goods as caffeine and on the basis of which the Nigerian National was charged under sections 8C, 20, 22 of the NDPS Act.

However, after almost 2 years the assistant director of Forensic Science Laboratory, Home Department, admitted his mistake stating that these substances are not under the jurisdiction of the NDPS Act. The sufferer has thus asked for bail.

Court’s Decision

The Bombay High Court has very clearly stated that the applicant deserves bail without a question. The substance found was not contraband and the raid which the ATI conducted does not fall under the purview of the NDPS Act. The typing error is a blatant mistake. An individual’s liberty is a fundamental right, enshrined in Article 21 and applies to foreigners too. The Court has observed:

“Liberty of an individual is of paramount importance and it is the fulcrum of the Indian democracy. Recognized as a
fundamental right, enshrined in Article 21, it is available to every person, citizens and foreigners alike. The incarceration of the applicant, with the above clarification, has therefore, become unlawful, as, but for this report, no offence could have been made out against him.”

The court has asked the State Government to come up with a proposal as to how to compensate the applicant for his incarceration.

-report by Zainab Khan

A bench of Bombay High court consisting of Justice A.S.Gadkari reduces the sentence of a rapist in a criminal appeal in the case of Vitthal Rajendra Jogade vs The State Of Maharashtra.

FACTS

In this case, the appellant was convicted u/s 376(2)(I) of IPC and sec 4 and 10 of POCSO Act 2012 for raping a minor girl of 11 years old. On 22nd April 2014 appellant went to the victim’s house for repairing her Cable T.V. When nobody was in the house appellant raped the girl by inserting his fingers into her vagina. On her shouting and sweating, he ran
away from the house. An FIR was lodged on the same day in Akkalkot North Police Station by the victim’s family. Further, a charge sheet was filed for the offense alleged against the appellant before Special Court. After trial and examining all witnesses, the learned Special Judge, Solapur sentenced him to rigorous imprisonment of 10 yrs and a fine of Rs. 15000 u/s 376(2)(i) of IPC and sec 4 &10 of POCSO ACT.

APPELLANT ‘S CONTENTION

Learned Adv. Shraddha D.Sawant appeared for the appellant side. She contended that the allegation put on the appellant was false. There was a land dispute between the appellant’s father and his uncle. Since the appellant’s uncle and victim’s father were close friends and therefore the allegations have been put on him. The counsel pleaded for his
innocence.

RESPONDENT CONTENTION

Learned Adv. S.S.Kaushik was appointed to represent the respondent. The witnesses were examined by the Trial Court which included the mother of the victim and her mother’s friend. Her mother’s friend had called the victim’s mother to accompany her to an agricultural field and it was after she insisted that the mother left the accused alone with the victim. The victim had also called her cousin after the incident around 2-2:30 p.m. and he had arrived, therefore he was also examined. The doctor who had conducted the medical examination was also examined and deposed that the victim had a history of sexual assault around 2 p.m. on 22nd April 2014.

JUDGEMENT

After cross-examining all the witnesses and medical reports, the charges over the appellant prove to be true. The court upheld the decision of the Special Judge, Solapur but reduces the sentence from 10 yrs to 8 yrs. The court observed-

“It is the settled position of law that, the absence of any injuries on the person of the prosecutrix who was the helpless victim of rape might not by itself discredit the statement of the prosecutrix and in such a situation the non-production of a medical report would not be of much consequence if the other evidence was believable. That, corroboration is not the sine qua non for a conviction in a rape case. That, the evidence of prosecutrix stands at higher pedestal than injured witness and needs no corroboration.”

The court relied on the judgment of Adu Ram Vs. Mukna & Ors. Reported in (2005) 10 SCC 597, which discusses the proportion between crime and punishment. The conviction of the appellant was upheld, however, the sentence for rigorous imprisonment was reduced to 8 years.