Tag: #IndianPenalCode

All individuals who have been a victim of crime have had themselves and their families affected, significantly making monetary misfortunes to the people in question. And the effect of these crimes and wrongdoings on the people in question and their families goes from genuine physical and mental wounds to perpetual aggravations. These consequences should immediately be changed and adhered to by giving care and attention to those affected through several measures and laws, giving them simple admittance to equity. Even if they have observed help and help from their family, clan, or the local area, they have, all things considered, stayed “failed to be a remembered individual” in the criminal justice administration system.

DEFINITION OF VICTIM

Within the Indian legal framework, the term victim is defined under Section 2(wa) of the CrPC, 1973 as ‘individual who has endured hurt, either physical or mental injury, torment, financial misfortune or infringement of their freedom, through acts or oversights viewed as violative of Indian criminal regulations including those regulations that endorse criminal maltreatment of influence’. The U.N Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, on 29 November 1985 gave an extensive definition to the victim ‘as a person who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights, through acts or omissions that are in violations of criminal laws operative within member states, including those laws proscribing criminal abuse of power’.

INDIA’S CRIMINAL JUSTICE ADMINISTRATION SYSTEM

The law enforcement framework which India has adopted stems from what the British called the ‘adversarial legal system’. The working of the Indian law enforcement framework relies upon the four support points and these four points of support are police, prosecution, judiciary, and the correctional institutions. For fair and speedy outcomes, these four points of support need to work actually by coordinating one another. The two primary criminal laws of India are the Indian Penal Code, 1860 which characterizes the offense and gives its discipline and the other is Code of Criminal Procedure, 1973 which recommends the technique for examination, indictment, and a criminal preliminary. The middle has the ability to make regulations and change criminal regulations under the Seventh Schedule of the Indian Constitution. However, it is mostly catered to the rights of the accused and altogether ignores that of the victim in the delivery of justice.

DIFFERENCE BETWEEN THE RIGHTS OF THE ACCUSED AND THE VICTIM

There seems to be a mismatch when it comes to the protection of the accused and the victim. If anything, it appears that the Indian Criminal Justice System has more rights reserved for the accused. This includes different privileges, safeguards, and shields given by the Code of Criminal Procedural Law like the right against self-incrimination, the presumption of innocence, the right to legal assistance, and the others like the ‘right to fair trial’ such as the standard of proof beyond a reasonable doubt, right of the accused to be informed of charges before the trial and the right to a lawyer and be defended, etc. Even the accused is heavily guarded under Articles 20, 21, and 22 of the Constitution.

Thus, it has been said many times that the victim’s role is merely reduced to being a ‘witness’ and has limited rights during criminal proceedings. A case example can be Parvinder Kansal vs State of NCT of Delhi (2020), where the father of the deceased son gave an appeal to enhance the imprisonment sentence of the accused but it was denied on the ground that the victim does not have such right to do so regarding the present provisions in the CRPC. Prior to this, there were recommendations given by the Malimath Committee and the Law Commission, where the legislature inserted a provision in section 372 of the Code through the Amendment Act of 2008 to provide victims their right of appeal and again the National Commission of Women to seek enhancement of appeals.

RIGHTS FOR THE VICTIMS

The definition of the victim provided under the CRPC proves to be insufficient and restricted comparatively to one given by the UN Declaration adopted by the General Assembly. The rights defined for the victim under this includes access to justice and fair treatment, Compensation, Victim’s assistance inter alia, for countries to have a guideline to trace. But India’s system has barely been touching these minimal standards and norms.

It was after many studies about whether victims who have been compensated were satisfied or not like in cases of gang robbers, motor accidents, etc. Issues regarding women victim issues led to mobilizations and protests in the past years resulting in amendments and numerous organizations being formed and introduced like protection of women against acid attacks (Sec. 326A20 and 326B21), voyeurism (Sec. 345C), stalking (Sec. 345D) and sexual harassment (Sec. 345A), and expanded the definition of rape (Sec. 375) under the Indian Penal Code as an addition to the existing
the victim’s right to compensation.

CONCLUSION

Considering the fact that India follows a Common Law system where it is subjected to transformations based on the context and case situations, it is not surprising to determine that the accused is sometimes labeled as a ‘victim’, therefore multiple rights are conferred to them. Keeping that aside, the scenario of the accused having more rights than the victim itself should not be ignored where the system should give importance, if not more to the victim.

However, it is important that the system comes up with different acts and comprehensive plans and programs to cater to the needs of the victim. This can be done through emotional and financial assistance. The support points of law enforcement which are the police, lawyers and prosecutors, NGOs, etc. should be effective in their field of work and correct the flaw of delay. Corresponding to commendable actions taken by the system sometimes, more distributions should be made to the study of ‘victimology’ for expansion so that further steps can be ventured into protecting
the victims.

Written by Tingjin Marak, a student at Ajeenkya DY Patil University, Pune.

Citation of the case

AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016.

Date of the case

6 September 2018

Petitioner

Navtej Singh Johar & Ors.

Respondent(s)

Union of India & Ors.

Bench/Judges

Dipak Misra, R. F. Nariman, D. Y. Chandrachud, and Indu Malhotra.

Statutes Involved

The Constitution of India, The Indian Penal Code.

Important Sections/Articles

Art. 14, 15, 19, 21, 25 of the Constitution of India, Right to Privacy under Fundamental Rights, S. 377 of the Indian Penal Code.

INTRODUCTION

Navtej Singh Johar V/s Union of India¹ was one of the most critical cases, which changed our Indian laws and conveyed us with a superior understanding of those laws. Right to Life under Art. 21 of The Indian Constitution isn’t just with regards to allowing an individual to live, yet permitting everybody to live they need to live, in any means not harming those of others. Neither The Indian Constitution discusses the Right to Equality on a separate premise. Each living being is to partake in those freedoms with practically no segregation or imbalance.

An individual’s Natural Identity is to be treated as fundamental. What an individual is brought into the world with is normal, the same way the character an individual is brought into the world with is regular and is to be regarded and acknowledged as opposed to being scorned or peered downward on. Crumbling or deterring an individual’s character and personality would be something like pounding the upsides of Privacy, Choice, Freedom of Speech, and different Expressions. For long, the transsexual local area has been peered downward on, to which once Radhakrishnan, J. expressed, Gender character alludes to every individual’s profoundly felt inside and individual experience of orientation, which could compare with the sex relegated upon entering the world, including the individual feeling of the body which might include an openly picked, adjustment of real appearance or capacities by clinical, careful, or different means and different articulations of orientation, including dress, discourse, and peculiarities. Orientation personality, along these lines, alludes to a singular’s self-distinguishing proof as a man, lady, transsexual, or other recognized class. Numerous strict bodies have gone against the Carnal intercourse against the Order of nature and some remember it as a demonstration disparaging the protected idea of Dignity. The Navtej Singh Johar V/s Union of India was the milestone case which prompted the struck down of S. 377 of The Indian Penal Code, as it expressed – Whoever deliberately has licentious inter­course against the request for nature with any man, lady or creature, will be rebuffed with 1[imprisonment for life], or with impris­onment of one or the other depiction for a term which might stretch out to a decade, and will likewise be responsible to fine.

BACKGROUND OF THE CASE

Writ Petition (Crl) No. 76 of 2016 was petitioned for proclaiming the right to sexuality, right to sexual independence, and right to the decision of a sexual accomplice to be essential for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful. Mr. Arvind Datar learned senior guidance showing up for the writ applicants presented that the two-Judge Bench in Suresh Kumar Koushal and another v. Naz Foundation had been directed by friendly ethical quality in light of majoritarian discernment while the issue, in reality, should have been bantered upon in the setting of sacred ethical quality. Likewise in a Nine-Judge Bench choice in K.S. Puttaswamy and another v. Association of India and Ors., have thought that sexual direction is a fundamental part of freedoms ensured under the Constitution which are not formed on majoritarian discernment. Mr. Arvind Datar expressed that he doesn’t expect to challenge the piece of S. 377 that connects with licentious intercourse with creatures, he limits consenting demonstrations between two grown-ups. The assent between two grown-ups must be the essential pre-condition. If not, the kids would become prey, and insurance of the youngsters in all circles must be monitored and ensured.

FACTS OF THE CASE

Navtej Singh Johar, an artist alongside Sunil Mehra a columnist, a culinary specialist Ritu Dalmia, hoteliers Keshav, Aman Nath, and a Businesswoman Ayesha Kapur, all in all, documented a writ request in the Supreme Court looking for a presentation of the right to sexuality, right to sexual independence and right to the decision of a sexual accomplice to be important for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful, as it was impeding the privileges of the LGBT people group. It was expressed that this segment not just abused A. 21 yet in addition A. 15, 19 alongside the Right to Privacy under the Fundamental Rights in The Indian Constitution. There had likewise been a few cases in the past like the Naz Foundation v. Govt. of N.C.T. of Delhi² and Suresh Kumar Koushal v. Naz Foundation³, which were likewise kept in thought during this case.

ISSUES RAISED

1. Whether the rationale adopted in the Suresh Kaushal judgment was proper or not?
2. Whether S. 377 violates A. 14 and 15 of the constitution?
3. Whether S. 377 infringes the right to privacy under A. 21?
4. Whether S. 377 has a ‘chilling effect’ on A. 19 (1) (a) by criminalizing gender expression by the LGBT community?

CONTENTIONS OF THE PETITIONER

• The Petitioner had lamented that the individuals from the LGBT people group were denied the right to life ensured by Art. 21 of the Constitution of India.
• The S. 377 of The Indian Penal Code conflicted with the A. 14, 15 of the Indian Constitution as they, as an individual were dealt with inconsistent to other people and segregated on the premise of sex of an individual’s sexual accomplice, and they, had to not to pick an accomplice of their enjoying.
• 19 of The Indian Constitution out of totally was the most cut off, as the local area was denied to communicate their sexual personality through discourse and decision of an accomplice of their enjoying.
• Right to protection under the Fundamental Duties was being impacted as they were evaded by society on finding their specific decision of living.
• It was encouraged to the statement of the S. 377 of The Indian Penal Code, illegal and perceiving the right to sexuality, right to sexual independence, and right to the decision of the sexual accomplice to be essential for A. 21 of the Indian Constitution.

CONTENTIONS BY THE RESPONDENTS

• The Union of India, taking a nonpartisan side passed on the make a difference to the Hon’ble Court by commenting “It left the topic of the sacred legitimacy of Section 377 to the insight of the Court”. Furthermore, found out if the law set down in Suresh Kumar Koushal v. Naz Foundation, is right or not.
• Shri K. Radhakrishnan, senior guidance, for the benefit of intervenor-NGO, Trust God Ministries contended, there is no private freedom to mishandle one’s organs and that the hostile demonstrations prohibited by S. 377 are submitted by manhandling the organs. Such demonstrations, according to the intervenor, are undignified and overly critical to the protected idea of nobility and on the off chance that any infraction is caused to the idea of poise, it would add up to established off-base and sacred shamelessness.
• The people enjoying unnatural sexual demonstrations which have been made culpable under S. 377 are more helpless and defenseless against contracting HIV/AIDS, additionally, the level of commonness of AIDS in gay people is a lot more prominent than heteros, and the right to protection may not be stretched out to empower individuals to enjoy unnatural offenses and in this way contact AIDS.
• Mr. Suresh Kumar Koushal, intervenor, by a composed accommodation contended in that that the contention of the candidates that consensual demonstrations of grown-ups in private have been decriminalized in many regions of the planet and, hence, it should be decriminalized in India.
• On the occasion consenting demonstrations between two same-sex grown-ups are barred from the ambit of S. 377, then, at that point, a wedded lady would be delivered remediless under the IPC against her bi-sexual spouse and his consenting male accomplice enjoying any sexual demonstrations.
• For the benefit of Raza Academy, the intervenor, through its learned direction Mr. R.R Kishore, it was contended that homosexuality is against the nature request and S. 377 properly precludes it.

JUDGMENT

1. S. 377 of The Indian Penal Code, to the extent that it applied to the consensual sexual direct between the grown-ups in private was announced Unconstitutional.
2. The choice in the Suresh Kumar Koushal v. Naz Foundation (1) was overruled.
3. Basic privileges are accessible to the LGBT people group even though they comprise a minority.
4. S. 377 is violative of A. 14 being entirely discretionary, unclear, and has an unlawful goal.
5. S. 377 punishes an individual in light of their sexual direction and is consequently oppressive under A. 15.
6. S. 377 ignores the right to life and freedom provided by A. 21 which includes all parts of the option to live with poise, the right to protection, and the right to independence and self-assurance concerning the coziest choices of an individual.

CONCLUSION

The judgment for the situation was notable as it struck down the S. 377 of The Indian Penal Code and it allowed them to the Homosexuals and every one of the individuals from the LGBT people group to unreservedly put themselves out there and to stroll with a head high in the general public. They don’t need to fear being evaded by society and their right to security being pulverized and pronounced as hoodlums because they communicated their friendship and affections for their sexual accomplice.

This judgment was an overjoy for each individual from the LGBT people group and different Heterosexuals. The choice was valued even abroad by different NGOs and gatherings named The Human Rights Watch, in this manner acquiring global acknowledgment. Different translations were made to clarify what laws said and that they are to cling to and everybody in the general public is to be dealt with similarly.

References

1. Navtej Singh Johar vs Union Of India Ministry Of Law And … on 8 January, 2018. indiankanoon.org.[Online] https://indiankanoon.org/doc/119980704/.
2. Naz Foundation v. Govt. of NCT of Delhi. en.wikipedia.org. [Online] https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#:~:text=Naz%20Foundatio
   n%20v.%20Govt.%20of%20NCT%20of%20Delhi,violation%20of%20fundamental%20rights%20protected%20by%20India%27s%20Constitution..
3. Suresh Kumar Koushal and another v. Naz Foundation and Others. www.desikanoon.co.in. [Online] https://www.desikanoon.co.in/2014/02/suresh-kumar-koushal-anr-v-naz.html.

Written by Sara Agrawal student at Sinhgad Law College, Pune.

CASE NUMBER

Appeal No. 273 of 1979

CITATIONS

AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

BENCH

Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria

DECIDED ON

9 MAY, 1980.

This reference to the Constitution Bench raises a question in regard to the constitutional validity of the death penalty for murder provided in Section 302, Penal Code, and the sentencing procedure embodied in Sub-section (3) of Section 354 of the CrPC, 1973.

FACTS OF THE CASE

Bachan Singh had been convicted of his wife’s murder and sentenced to life in jail under Section 302 of the Indian Penal Code in the previous case. After serving his term, he was released and spent about six months with his cousin Hukam Singh and his family. Hukam Singh’s family members, including his wife and kid, questioned the appellant’s presence at his apartment.

The family went to bed after dinner on the night of the crime, July 4, 1977. When Vidya Bai (daughter) was woken by the alarm about midnight, she witnessed the appellant inflicting axe blows on the face of her sister, Veeran Bai. When she tried to stop him, the appellant struck her in the face and ear with the axe, knocking her out. Diwan Singh awoke from his rest after hearing the shriek and witnessed the appellant attack Desa Singh with the axe.

The Sessions Court later found the appellant guilty of murdering three individuals, including Hukam Singh’s son, Desa Singh, Durga Bai, and Veeran Bai (Hukam Singh’s daughters), as well as injuring Vidya Bai (Hukam Singh’s other daughter). On appeal, the High Court upheld the death sentence given by the Trial Court. In addition, both the Trial Court and the High Court ruled that Vidya Bai’s injuries were inhumane.

Bachan Singh then sought a special leave to appeal in the Supreme Court, raising the issue of whether “special reasons” exist in the facts of the case, which are required for the death penalty to be imposed under Section 354(3) of the Code of Criminal Procedure.

ISSUES RAISED

• Whether or not Section 302 of the Indian Penal Code’s provision for the death penalty for murder was unconstitutional?
• Is Article 19 relevant in establishing the validity of Section 302 of the IPC’s challenged provision?
• Is Section 302 of the IPC’s disputed limb in violation of Article 21 of the Constitution?
• Is Section 354(3) of the Criminal Procedure Code, which governs sentencing, unconstitutional on the grounds that it gives the Court unguided and unrestricted discretion and allows the death penalty to be imposed arbitrarily on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code if the answer to the preceding question is no?

DECISION OF THE COURT

The Supreme Court dismissed the constitutional objections to Sections 302 of the Indian Penal Code and 354(3) of the Criminal Procedure Code. The Court went on to say that the six essential rights protected by Article 19(1) aren’t absolute. For starters, they are subject to limitations imposed by an individual’s commitment not to exercise their rights in a way that harms or infringes on the rights of other members of society. This is founded on the maxim sic utere tuo ut alienum non laedas, which states that an individual must use their property in a way that does not infringe on another person’s legal rights.

Another question is whether the courts have unfettered discretion in inflicting the death penalty, as well as the nature and scope of the specific reasons. Section 354(3) of the CrPC defines “special reasons” as “extraordinary causes related to the serious nature of the offence.” In granting the death punishment, the Supreme Court established the theory of the “rarest of the rare circumstances.” For individuals convicted of murder, life imprisonment is the norm, with the death penalty being an exception. It would be unusual to use discretion under Section 354(3) of the CrPC, 1973. Only offences that shook society’s collective conscience would receive the death punishment. Only in the rarest of circumstances should the death penalty be used.

This is written by Dalima Pushkarna student at Dr Ram Manohar Lohiya National Law University, Lucknow.

INTRODUCTION

Lately, we have seen a remarkable expansion in the occurrence of police barbarities all around the country. Launch by the June 2020 instance of fierce custodial torment and killings of Jayaraj and Bennix in Thoothukudi, Tamil Nadu. While numerous episodes of police ruthlessness occur routinely, and regularly openly in spaces, not many of them get featured in the media or similarly witness public shock. Then, at that point, as well, once the ­initial period of public shock tides over-soothed through inquiries, captures and examination seldom are police authorities arraigned and indicted for these terrible demonstrations of viciousness. While the law is regularly promoted as an answer for social issues, ­including police torment, custodial brutality, and extrajudicial killings, this article contends that the arrangements of law and their execution are a contributor to the issue.

CUSTODIAL VIOLENCE

Custodial brutality principally alludes to savagery in police guardianship and legal care. Except for assault, death, and torment are two different kinds of custodial brutality. Custodial brutality is not a new peculiarity. Sections 330, 331, and 348 of IPC; Sections 25 and 26 of the Indian Evidence Act; Section 76 of CrPC and Section 29 of the Police Act, 1861 were ordered to check the propensity of police officers to turn to torment to separate admissions and so on despite these legitimate arrangements, custodial savagery keeps on happening. Custodial brutality is a term, which is utilized for depicting savagery submitted against an individual by a police authority. In this way, custodial viciousness can be characterized as “a barbaric attribute that springs out of an unreasonable longing to cause enduring when there is no
chance of any reprisal; a silly presentation of prevalence and actual control over the person who is overwhelmed.”

Even though stuffing, ailing health, unhygienic conditions, and absence of clinical consideration are a portion of the elements of death in police and legal guardianship, custodial savagery stays the normal reason for passing’s in penitentiaries and lock-ups. Be that as it may, notwithstanding the Constitutional and Statutory arrangements contained in the Criminal Procedure Code and the Indian Penal Code pointed toward shielding individual freedom and life of a resident, the developing occurrence of torment and passing’s in police guardianship has been upsetting. Experience shows that the most exceedingly terrible infringement of basic freedoms happens throughout examination when the police, with the end the goal of getting proof or admissions, frequently resort to third-degree strategies including torment and procedures of captures by either not recording them or portraying the hardship of freedom simply as “delayed cross-examinations”.

CAUSES OF POLICE ATROCITIES IN INDIA

Despite the way that each section of the general public has a concerned outlook on custodial savagery, throughout the long term it has stayed unabated. It is by all accounts on ascent consistently, disregarding the way that pace of proficiency has expanded and individuals have become mindful with regards to their privileges and obligations. The principal arm of the criminal equity framework that arrangements with individuals in authority are police. It will, accordingly, be important to discover afflictions, which administer this office coming about into maltreatment of the people who are in their care. The fundamental reasons for Custodial viciousness can be gathered in the accompanying classifications: –

CASES AGAINST POLICE ATROCITIES IN INDIA

In D.K Basu v/s State of West Bengal, [(1997) 1 SCC 416; AIR 1997 SC 610] (1)the Court has laid down detailed guidelines to be followed by the police at the time of arrest and detention.

The case of Joginder Kumar v/s State of U.P [1994 AIR 1349, 1994 SCC (4) 260] (2) is an example that highlights the wrongful use of arrest power by the police without a justifiable reason and the arrest was not recorded in the police diary.

Interfering of evidence in matters regarding Habeas Corpus where it was seen on a petition where a father desired to take the custody of his minor girl for the accused whereby the accused brought a wrong person misdirecting the court to believe the person to be the same for whom the petition was filed, the court ordered an inquiry under Section 193,196 and 199 to be filed against the respondent. It emphasizes the offense of tampering with evidence. R. Rathinam v/s Kamla Vaiduriam.1993 CrLJ 2661(Mad) (3)

The case of Nilabati Behra v/s State of Orissa & Ors. [1993(2) SCC 746] (4) is a glaring example of death caused by police brutality. In this specific case, the state was held responsible and was ordered to pay compensation to the appellant. This cruel act of police was seen as a blatant violation of the rights enshrined in Article 21 of the Indian Constitution.

The apex court in Bhim Singh Versus State of J & K. [(1985) 4 SCC 677; AIR 1986 SC 494], ordered the State Government to pay a compensation of Rs 50,000 for detention and illegal arrest of Bhim Singh by the police to avert him from attending the Assembly Session. (3)

References

1. D.K Basu vs. State of West Bengal. lawtimesjournal.in. [Online] https://lawtimesjournal.in/d-k-basu-vs-state-of-west-bengal/.
2. Joginder Kumar vs State Of U.P on 25 April, 1994. indiankanoon.org. [Online] https://indiankanoon.org/doc/768175/.
3. Remedies Against Illegal Action by Police. blog.ipleaders.in. [Online] https://blog.ipleaders.in/remedies-illegal-police-action/.
4. Smt. Nilabati Behera Alias Lalit … vs State Of Orissa And Ors on 24 March, 1993. indiankanoon.org. [Online] https://indiankanoon.org/doc/1628260/.

This article is written by Sara Agrawal student at Sinhgad Law College, Pune.

Case number

Criminal Appeal No. 195 of 1960

Equivalent citation

AIR 1962 SC 605

Bench

Hon’ble Justice K. Subba Rao.

Date of Judgement

November 24, 1961.

Relevant Act(s)

The “Evidence Act, 1872”; the “Indian Penal Code, 1860”.

Facts of the case

K.M. Nanavati is the petitioner. He was an Indian naval Officer then. He was married in the year 1949, to Sylvia in England. They also had three children and had shifted to Bombay, after residing in a number of places. Prem Bhagwan Ahuja was a business who also resided in Bombay along with his sister. He had a business in automobiles. Nanavatis were introduced to the Ahujas through some common friends, the Agniks. Prem Ahuja was not married. The petitioner used to stay out of the station most of the time due to his profession. In his absence, Ahuja and Sylvia became friends, and soon she fell in love with him. This resulted in an illicit relationship between both of them. After a certain period of time, Sylvia began doubting Prem and felt that he would not get married to her. Hence, in 1959, on April 27th, Sylvia confessed to Nanavati about her love for Prem Ahuja. Nanavati was infuriated. He went to his naval base to take a semi-automatic pistol along with six cartridges, on a false pretext. He then arrived at Ahuja’s place, went to his bedroom, and asked him if he is ready to marry Sylvia and take responsibility for the children. Prem denied, as a result of which Nanavati shot him thrice and he died on spot. After this whole course of events, he surrendered himself to the police. As a result, he got arrested. He was committed to the Sessions under the charges of “Section 302” as well as “Section 304” of the “Indian Penal Code”. He was declared not guilty then by the jury by 8:1. The sessions judge disagreed with the jury’s decision, and under “Section 307” of the CrPC submitted the case in the Bombay High Court.

Issues

1. Whether the Sessions Judge did not have jurisdiction to exercise “Section 307” of the CrPC?
2. Whether the act committed can be considered as an act done in a “heated moment”?
3. Was there any kind of misdirection?

Arguments

Arguments made by the petitioner:
The counsel first mentioned that Nanavati wanted to kill himself. Sylvia calmed him down. Also, it was claimed that Nanavati had gone to Ahuja’s place just to ask him if he would get married to Sylvia or not. While taking the pistol and cartridges from the base, Nanavati told the ship authorities that since he would travel at night, he needed the pistol for his own safety; and he carried it in an envelope. In reality, he was going to shoot himself and not Ahuja.
When Nanavati arrived at Ahuja’s flat, he asked him if he would marry Sylvia, to which Ahuja denied blatantly. A heated argument took place, and Nanavati had just threatened to thrash Ahuja. He then kept the pistol on a table. Ahuja tried to grab the pistol but failed. In the meantime, the argument escalated between two men. Accidentally shots got fired in the scuffle and killed Prem Ahuja. Hence, Nanavati did not kill him intentionally, and it was not premeditated at all. Even if any crime was committed by Nanavati, it would not be murder and could amount to just culpable homicide.

Arguments made by the respondent:
The counsel for the respondent first mentioned that Ahuja had just come out of the washroom and was still in a towel when Nanavati entered. Therefore, there was no brawl between the two, since the towel did not fall off. Sylvia mentioned that they went to the movies, and Nanavati had dropped them. This shows that he was in a calm mind and was not enraged then. Thus, there was no chance of any “sudden provocation”. It was not an accident, because Ahuja’s sister was in the other room and Nanavati did not bother to inform her about the mishap. Instead, he just left.

Judgement

Judgement of the Bombay High Court:
The case came to the Bombay High Court since the Sessions Judge did not agree to the jury’s decision in the Sessions court where Nanavati was declared not guilty. The case was heard by Hon’ble Justice Jaishanker Manilal Shelat, and Hon’ble Justice Naik. They decided that Nanavati should be convicted under “Section 302” of the “Indian Penal Code”, and gave the sentence of life imprisonment. The court mentioned that it was unreasonable on the jury’s part in the Sessions Court to declare Nanavati not guilty. No case was made to reduce the intensity of the event, i.e., from murder to culpable homicide.

Judgement of the Supreme Court:
The Supreme Court concluded that the concept of “suddenness” was not present in this case. This is because when Sylvia confessed to her illicit relationship with Nanavati, it was serious and grave, but Prem Ahuja was not present on the scene. According to the Hon’ble Supreme Court, since around three hours gap was present between the confession of the wife and the incident, Nanavati had enough time to cool down. Hence, the Apex Court decided in favour of the Bombay High Court’s decision of sentencing the petitioner to life imprisonment. The Court concluded that it was not an act of “grave and sudden provocation”. The Court decided that it was the judge’s duty to instruct the jury as to the legal ramifications. As per the court, the jury was misled due to the judge, which led to an unreasonable judgement by the jury. It was also held by the Court that the Sessions Judge did have jurisdiction to exercise “Section 307” of the CrPC.

Conclusion

This is an important case where the topic of “grave and sudden provocation” was discussed. This case also attracted huge media attention then. The whole nation was shocked by such a “crime of passion”. This case showed that no matter what position an individual holds in society, they would be punished by the law if they commit something unlawful. Another important part of this case was the jury trials. The jury trials were soon discontinued by the Government after this case, due to chances of such misled judgements.

This article is written by Aaratrika Bal student at National Law University Odisha.

Case number

Criminal Appeal No. 573 of 2016.

Equivalent citation

(2021) 6 SCC 213.

Bench

CJI N. V. Ramana, Hon’ble Justice Surya Kant and Hon’ble Justice Aniruddha Bose.

Date of Judgement

May 7, 2021.

Relevant Act(s)

The “Evidence Act, 1872”; the “Indian Penal Code, 1860” and the “Code of Criminal Procedure, 1973”.

Facts of the case

Both parties were very much related to each other. There had been clashes going on for a long time between the family of Jayamma (appellant), who is the wife of Reddinaika and the family of Jayamma (respondent), who was the deceased wife of Sanna Ramanaika. An argument took place between the two families in 1998 on September 10. During this argument, Reddinaika was assaulted by Ramanika’s son, i.e., Thippeswamynaika. After this incident happened, the appellants arrived at the respondent’s place on 21 st September to confront them about the actions of Ramanaika’s son. A sum of Rs. 4000 was also demanded by the appellants in order to cover the medical treatment costs. A heated altercation happened, as a result of which the appellant party poured kerosene on Jayamma (who is now deceased) and set her on fire. The appellants were explicitly blamed for the death of Jayamma (respondent). Jayamma’s family members heard her screams and tried to set off the fire. In the meantime, the appellants ran away from the scene. Jayamma was then admitted to a “public health entre”. Jayamma was given pain killers and basic treatment by Dr A. Thippeswamy. A medico-legal case was then sent to the Thalak police station. Jayamma gave her statement and she had implicated the whole appellant party under “sections 307, 504, 114” read along with “section 34” of the IPC. Finally, on September 23, Jayamma passed away. The post-mortem report said that she died due to shock which came as a result of her injuries. The appellants got arrested, but with the help of anticipatory bail, they had to be released. When the matter was presented in the trial court, a number of witnesses turned hostile. The issue then was whether Jayamma’s death was suicidal in nature or if it was homicidal. It was noted by the court that all of this was based on the dying declaration of Jayamma. The accused were not convicted due to a lack of genuineness and evidence (except for the dying declaration). Therefore, the court acquitted the appellants. During the High Court hearing, it was decided that the judgement of the trial court would be reversed. The HC of Karnataka decided that a dying declaration was enough to convict an accused. The Hon’ble court convicted the accused under “section 302” read with “section 34” of IPC.

Issues

1. Was it right on the High Court’s part to reverse the decision taken by the trial court?
2. Was it successfully established that Jayamma’s death was not suicidal, and instead was homicidal in nature?

Arguments

• Argument made by the appellants:
  The appellant’s side claimed that the decision taken by the trial court was well structured, unlike that of the High Court which was vague and confusing. It was also contended that the High Court failed to examine the conclusions of the trial court. Thus under “section 378” of the CrPC “, it failed to discharge its obligation”. They claimed that a decision should not be taken just on the basis of a dying declaration and that the motive of the appellants could not be established. Hence, the acquittal is incorrect.
• Argument made by the respondent:
  The learned counsel contended that in cases of death from 100% burn injuries, the dying declaration can be considered enough for a conviction.

Judgement

After a thorough investigation, the Supreme Court found that some modifications had been done in the dying declaration and that the HC of Karnataka had unnecessarily depended a lot on just the dying declaration. The Court also concluded that since Jayamma was in a lot of pain she might have not been in a state to give a proper statement before dying. Hence, the Apex Court decided to acquit the appellants in the present case. The Court also mentioned that high accuracy had been maintained in the dying declaration which was unlikely for an individual who was in such physical condition and also Jayamma was not that literate to describe the whole situation with such details. Jayamma was alive for almost 30 hours, but the authorities did not contact the Executive Magistrate to record the statement of the patient. Hence, the apex court was not convinced enough to accept the dying declaration as the sole piece of evidence to convict the appellants. The Court also pointed out the fact that it was not a family member who had complained to the police, instead it was the doctor. Thus, this also questions the homicidal nature of death. Apart from these, it was also held that it was unfair on the High Court’s part to exercise “section 378” of the CrPC, that too when the trial court gave a right decision.

Conclusion

This is an important judgement that primarily talks about the usage of dying declaration as the sole piece of evidence in any case. A point that should be noted here is that it took so many years to serve justice to Jayamma and her family. During this course of time, the family had to go through a lot. There are so many cases in India that are pending, and the party that suffers the most in these cases are one of the parties. Also, it is not fair to assume that the investigation done by lower courts is inadequate or incorrect. The Supreme Court had given a very detailed and reasonable judgement in this case. This judgement is one of the most significant judgements of 2021.

This article is written by Aaratrika Bal student at National Law University Odisha.

-Report by GURPREET SINGH

FACTS

On 15.6.16, the prosecutrix, along with her niece around 9 P.M went to Narispur Sabzi Mandi to purchase vegetables. On reaching Buddha Jayanti Park, the accused obstructed her and forcefully took her to a secluded place in the park and raped her around 9.30-10 P.M . The Prosecuterix managed to run away from the clutches of the accused, got reunited with her niece, and narrated the incident to her. After the incident, they went straight to Shani Mandir, Dasratpur where they narrated the incident to the husband of the niece, who called the police, and the accused was apprehended as he was still following them. The Trial Court convicted the accused under section 354 D and 376 of the I.P.C. Aggrieved by the said order the accused approached the High Court in appeal.

CONTENTIONS

The learned counsel of the appellant contended that there was the consent of the prosecutrix in the act and the consent can be adduced by the fact that she did not raise an alarm on noticing the accused following her in the mandi. The counsel further contended that the appellant did not raise an alarm at the point of the time of the alleged rape incident as well. They further contended that the niece of the prosecutrix requested the appellant and prosecutrix to get ice cream for all of them and at that point in the time prosecutrix agreed to have sex with the appellant instead of money. They further contended that no external injuries were found on the prosecutrix and that contradicts their theory of rape.

DECISION OF THE COURT

The Court by pursuing the testimonies and other evidence on record concluded that the explanation of the prosecutrix in concluding that the accused might have been shopping in the mandi as others, on observing that he was following them. Further, on the point of prosecutrix not raising an alarm at the time of incidence, the court reasoned that the place of incidence was scheduled and there even if she had raised an alarm, it would have reached no one and the MSL report indicates injuries on the appellant that depicts resistance by the prosecutrix. The argument of the accused that he befriended the niece of the prosecutrix and when requested by her to get ice cream, he offered money to prosecutrix to have sex and she consented is an afterthought as he in his statement under section 313 C.R.PC stated that he refused to pay money to the prosecutrix after having sex with her on the premise that he did not possess an amount of Rs 300. This contradicts his statement. The Court further placed reliance on the State of Himachal Pradesh v Manga Singh, which held that the conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required. The Court confirmed the conviction of the accused and directed the trial court to consider compensation to the victim in light of the Delhi Victim Compensation Scheme.

During the proceeding of a matter, Kerala High Court on Monday while interpreting Section 375 of IPC stated as to when the body of the Victim is manipulated to simulate a sensation similar to penetration of an orifice, then such act also leads to the offense of rape.

The above Judgment was made while deciding a matter wherein a minor child stated that his neighbor had sexually assaulted her on various occasions for six months. The offense not only attracts section 375 of IPC but also an offense under the protection of Children from Sexual Offences Act, 2012.

The offense was registered and the Trial Court after the evaluation of the entire matter has found the accused guilty and was sentenced. So the accused moved to the High Court stating that the victim has not proofed her age and also as per the definition of rape stated in IPC states rape happens when any accused penetrate his penis into the Vagina, mouth, Urethra, or anus of women but in the present case the accused is been accused of inserting the penis between the thighs of the victim does not amounts to rape.

After the appeal in the Kerala High Court, the difficulty faced by the High Court was in solving the problem that has been arrived before the bench whether the act to accused will be considered as rape or not. The further solved this problem and interpreted the definition of rape by stating the accused had committed the offense of rape as he had done the penetrative sexual act between the thighs of the victim to obtain sexual gratification which amounts to rape.

-Report by RIDDHI DUBEY

According to news agency ANI, a lawyer cried “tareekh par tareekh (date after date)” while breaking courtroom equipment in a Delhi court recently, reenacting a famous film scene. According to the report, the event occurred on July 17 in courtroom 66 of the Karkardooma court complex in the national capital.

Advocate Rakesh, according to ANI, was irritated that his case has been waiting since 2016 In court. According to the agency, Rakesh smashed the judge’s dais inside the courtroom, citing police sources. The lawyer was seized by the police when the courtroom staff sounded an alarm. The policy sources reported to the agency that the dais of the judge in the courtroom was smashed by Advocate Rakesh. The lawyer was arrested by the police when the courtroom personnel sounded an alert.

The numerous adjournments sought by the opposing lawyer, played by the late Amrish Puri, infuriated Deol, who was portraying the character of an advocate in the film. Deol launched a monologue about how recurrent court adjournments had hampered his client’s struggle for justice before uttering the famous “tareekh par tareekh” statement in the court.

Meanwhile, Rakesh was apprehended and placed before a magistrate, who put him in judicial prison, according to ANI. Sections 186 (willfully impeding any public servant in the exercise of his official duty), 353 (assaulting or employing criminal force on any person who is a public worker), 427 (mischief), and 506 (criminal intimidation) of the Indian Penal Code have been filed against him by the Delhi Police.

-Report by ESHAN SHARMA

The Jaspal Singh Gosain versus CBI case, otherwise called the Ranbir Singh counterfeit experience case, is a criminal case in the Uttarakhand province of India, that occurred on 3 July 2009, and included fake encounter killing of Ranbir Singh, a 22-year-old MBA graduate in Dehradun.

18 cops of the Uttarakhand Police were sent up for preliminary investigation after the murder of the Ranbir Singh. Delhi court sees seven of them as liable of homicide, 10 of them of criminal conspiracy and kidnapping to murder and another is indicted for destruction of proof.

The Delhi High Court, in 2014, affirmed the conviction for the offences of the cops under Sections 302 (Punishment for Murder) and 364 (Kidnapping or stealing to kill), read with Section 120-B (Criminal Conspiracy) IPC. The Supreme Court on June 8th, heard the bail plea of one of the police officer serving life imprisonment for the 2009 fake encounter in Dehradun for murdering a 20-year-old MBA understudy.

The bench relied on the order dated January 13,2021 which said “The Learned Additional Solicitor General has no objection to release the appellant purely on humanitarian grounds on interim bail.” The Bench allowed the opportunity to the state to record its answer and listed the matter for hearing on next Tuesday.

-Report by Anuj Dhar