Such evidence can be relied upon only if the same was exhibited by any other witness and not otherwise.

The issue place before the bench was that the accused was alleged for having fired bullets upon police officers during an encounter punishable under Section 186, 353, and 307 of the Indian Penal Code and Section 25 and 27 of the Arms Act, 1959.

The Petitioner was accused of conducting an illegal business operation of dealing with arms and ammunition and opened fire upon being raided by the Police.

Though the encounter had taken place in a public area, no independent witnesses were recorded and the examination-in-chief of all the police officers appears identical and rehearsed.

The court observed that the bullets allegedly recovered as stated in the CSFL reports were not exhibited during the proceedings.

The report indicated that the bullets were recovered from the bulletproof jackets and that the said bullets were shot of the weapon recovered from the possession of the accused.

Section 293 of the Criminal Procedure Code states provides for using any report or analysis provided by a Governmental scientific expert as evidence during the course of the trial.

Even if the evidence given by the Police Officers is admissible, it is not substantive enough to adjudge the matter in that favor and following the principle of ‘innocent until proven guilty’, the court set aside the Petitioners conviction.

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SHIROMANI JAIN v. ASHOK KUMAR JAIN AND ORS. (2018) 14 SCC 310

RELEVANT FACTS

Shiromani Jain (woman/appellant) was married to Ashok Kumar Jain (Respondent 1) in a Jain temple according to the Hindu rites and Manu (son) born out of this wedlock. Respondent 1 leaves his wife and his son out of the house because of not bringing sufficient dowry and had married Jyoti Jain (respondent 2) in a Jain temple under Hindu rites and had a daughter born out of this wedlock.

Appellant filed a petition before the Family Court to declare 2nd marriage as null and void and she also demanded maintenance from her husband. But in the absence of evidence of her marriage, the Family court and High Court both dismiss the application holding that performance of marriage in accordance with Hindu rites has not been proved by the Appellant. Relatives have not been examined. Now appellant filed an appeal before Hon’ble Supreme Court to allow her marriage to be valid and to provide maintenance.

ISSUES

• Whether there is allowed maintenance to the appellant and her son?
• Whether there is 1st and 2nd marriage valid and void respectively?

LAW POINTS/ RULE OF LAW

• Section 9 and 17 of Hindu Marriage Act, 1955.
• Section 494 and 495 of Indian Penal Code, 1860.

JUDGEMENT WITH REASONING

Learned counsel of the respondent stated that there is only an agreement had been entered into between appellant and respondent 1 that notarised agreement could not be said to be a valid form of marriage. And there is no proof of marriage between the appellant and respondent 1 but there is a valid marriage performed between respondent 1 and 2 in the Jain temple according to the Hindu rites. And according to the case law Gopal Lal v. the State of Rajasthan, Merely execution of the agreement could not be said to be a valid form of the marriage.

So, Family Court dismissed the application holding that performance of marriage in accordance with Hindu rites has not been proved by the Appellant. And High Court also affirmed with the judgment of the Family Court. 

Now learned counsel of the appellant stated in Hon’ble Supreme Court that declaration made in the application filed Under Section 9 of the Act had not been taken into consideration either by the Family Court or by the High Court for restitution of the conjugal rights and there are two witnesses who examined to support the fact of marriage.

There was also stated that the appellant and her son have not lived together with respondent 1 for the last 18 years. So, there should be given a maintenance of Rs. 8 Lakhs and 6000 per month. And marriage between respondent 1 and 2 is null and void according to section 17 of the Hindu Marriage Act, 1955, and respondent 1 should be punished on the basis of section 494 and 495 of the Indian Penal Code, 1860.

Finally, the Hon’ble Supreme Court stated that both the marriage solemnized according to the Hindu Rites but there is also not allowed bigamy to any Hindu person under section 17 of the Hindu Marriage Act, 1955. So, the court held that the marriage between respondent 1 and 2 is null and void and there should be given maintenance to the appellant by the Respondent.

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Pappu vs State

Facts:

The complainant while boarding the bus was confronted with robbery when two or three persons forcefully got into the bus and tried snatching the briefcase of the complainant. One of the accused was carrying a sword as a weapon while the other was in possession of a revolver; however, the complainant defended himself by using his briefcase. Later, the culprits fled from the scene but one of them was apprehended by the public. The sword was handed over to the Sub-inspector of the respective region. A case was filed against the appellant namely Pappu for committing a robbery. The trial court convicted the appellant under Section 392, Section 394, and Section 397. Aggrieved by the decision, an appeal was made in the High Court.

Issues:

• Whether the appellant is liable under Section 392, Section 393, and Section397, and if so then, whether he is liable to be convicted under Section 393/398 or Section 393/397?

Legal Provisions:

• Section 392, IPC – Punishment for robbery
• Section 393, IPC – Attempt to commit robbery
• Section 397, IPC – Robbery or dacoity, with an attempt to cause death or grievous hurt
• Section 398, IPC – Attempt to commit robbery or dacoity when armed with a deadly weapon

Appellant’s Contention:

The learned counsel appearing on behalf of the appellant contended there was no evidence to prove if the appellant was the culprit. It was further submitted that none of the prosecution witnesses succeeded in identifying the appellant. Moreover, the appellant along with the co-accused had attempted to rob; therefore he cannot be convicted under punishment for robbery. Taking in purview, Section 397 is not applicable because the appellant did not use the sword, which was in possession of the appellant at the time of the offense.

Respondent’s Contention:

It was submitted by the respondent that one of the prosecution witnesses who were present at the spot of incidence identified the appellant and the other witnesses that were the bus driver, the conductor was not able to identify the appellant due to lapse of time. Another witness identified the sword, which is sufficient to prove the crime committed by the appellant. The counsel relied on the judgment of Sanjay Ravindra N. Gaikwad and Anr. vs. the State of Maharashtra to support the contention that conviction under Section 393 and Section 397 both can be sustained.

Observation of the court:

It was observed by the court that the appellant tried snatching the briefcase from the respondent but he did not succeed in his action but the attempt cannot be denied, thus it would be a case of attempt of robbery. And when the appellant is once convicted under Section 393, he cannot be punished for the offense under Section 392. Since Section 397 is a major offense, the appellant can be convicted under Section 392. In the present scenario, the trial court had erred in convicting the appellant under Section 392 because the accused had failed in committing robbery, therefore the conviction is to be altered to Section 393.

Judgment:

The sentence awarded by the trial court is maintained since the minimum sentence which can be awarded is rigorous imprisonment for 7 years and has been already done.

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In the High Court of Judicature at… vs Unknown [5, December 2008]

Facts:

The appellant was alleged to have assaulted a man named Bhaurao on the abdomen by using a spear causing multiple injuries and bleeding on the cheeks, chest, and ear of the person. Not only this, multiple injuries were inflicted upon two other witnesses before the appellant named Vinod ran away. Subsequently, a case was filed before the court, where the trial court convicted the appellant under Section 324 of the Indian Penal Code and awarded a sentence of rigorous imprisonment for one year. Aggrieved by the decision, an appeal was made in the High Court.

Issues:

• Whether the appellant should be convicted under Section 302 or Section 304 of the Indian Penal Code?

Legal Provisions:

• Section 302, IPC – Punishment for murder
• Section 304, IPC – Punishment for culpable homicide amounting to murder
• Section 324, IPC – Causing grievous hurt by weapons

Appellant’s Contention:

The learned counsel submitted contentions on behalf of the appellant that the real story has been suppressed and has been laid in the court in a manipulated manner. The situation is being corroborated only based on witnesses; there lies no evidence against the appellant which proves the action of the appellant. In short, the offense of the appellant has not been proved beyond a reasonable doubt.

Respondent’s Contention:

The learned counsel appearing on behalf of the respondent submitted that the judgment passed by the trial court was apt and does not need to be interfered with since the offense was proved beyond a reasonable doubt. The witnesses were close relatives of the deceased and ought not to have been believed by the trial court.

Observations of the court:

The statements submitted by the prosecution witnesses and the certificate issued after post mortem examination deposes as to the incident of assault that led to the death of the deceased. The question which arose before this court was whether the deceased met with homicidal death. As per the opinion of the doctor, the deceased died on account of hemorrhagic shock due to multiple stab injuries. The stabs were a result of continuous use of the spear, which the appellant used to cause grievous hurt to the deceased. The story appeared self-made by the wife of the accused and the accused; therefore it cannot be termed as reliable or acceptable. There is a lack of medical evidence to prove if multiple injuries by stabbing were sufficient to cause the death of the deceased in the ordinary course of nature. Thus, it is not safe to hold the accused guilty of an offense under Section 302. However, the accused cannot escape the liability of culpable homicide.

Judgment:

The appellant is liable under Section 304 Part-I of the IPC and the sentence is reduced.

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‘Police’ is not defined under the CrPC, but the “officer in charge of a police station” [S.2(o)], police report [S.2(r)] and police station [S.2(s)] have been defined. The word ‘police’ is normally used as a noun, which has a dictionary meaning: the civil force of a state, responsible for the prevention and detection of crime and the maintenance of public order. (Oxford Dictionary)   Another Definition from New Webster Dictionary says: (it is) ‘A department of government responsible for the preservation of public order, detection of crime and enforcement of civil law.’     

Police are part of the executive system. The Indian Police Act, 1861 says: the word ‘Police’ shall include all persons who shall be enrolled under the Police Act. (S.1)         Apart from Central – Police Act, some States have their own Police Act e.g. Bombay Police Act (Maharashtra), Gujarat Police Act, Kerala Police Act etc. As the maintenance of law and order is the primary duty of each State Government, Police is governed by State Law. Police is the first machinery, which can be moved and used in case of cognizable offences, as it has power to arrest without warrant and power to investigate in such cases without any orders/s from the magistrate.

OVERVIEW:

Criminal Law is basically divided in two parts: Substantive and Procedural. For example, Indian Penal Code, 1860 and other Penal Acts are substantive laws, which define the offences and prescribed various kind of punishment including the quantum of punishment. Under these penal enactments, we also understand the essential ingredients of each offence, which is crystalized by legal provision i.e. section of the Act. On the other hand, the procedural law lays down a course for operation of such substantive law. It specifies the nature and scope of the proceedings as well as how the legal process is to be initiated and be linked with the provision of the substantive law e.g. when, where and how.          

It is a well-known feature of the Criminal Law that anyone can put motion in criminal law, so a stranger can move it too, subject to few statutory exception e.g. u/s.376-B of the IPC: Sexual intercourse by husband upon his wife during separation, but it is cognizable offence only on a condition that: if it is upon a complaint of the victim (as per the First Schedule under the CrPC). Hence, the principle of locus standi is applicable for this offence.

Thus, as per the two categories of offences, the criminal cases can also be divided into two groups:

•  Cases, wherein Police can arrest person/s without warrant and it has power to investigate without any order/s of the Magistrate;
• Cases, wherein Police cannot make any arrest without warrant and does not have power to investigate without specific order/s of the Magistrate.

Origination of Criminal Proceedings:       

• Commission of cognizable offence/s affects the society at large. As soon as it is committed, information about the same is required to be reached at the Police, whose duty is to protect law and order. Here, the meaning of information is also necessary to understand and comprehend.   
• Information regarding the crime is: ‘facts provided’ or ‘learned about something or someone’ [Oxford Dictionary]. Information could be anything: data, knowledge, an incident, a happening, an occurrence or everything – which the mind can perceive by its senses. 
• Chapter-XII of the CrPC deals with ‘Information to the Police and their Powers to Investigate’. Here the set of Sections-154 to 176 are designed for the process of investigation and intricacies of such investigation under the procedural law. 
• However, Chapter-V of the CrPC, which prescribes the legal provisions of ‘Arrest of Persons’. Here, the group of Sections: 41 to 60 deal with the conditions and requirements of ‘Arrest’, which is again not defined anywhere under the CrPC. 
• However, normally arrest would come only after the commission of an offence and so, it is not a condition precedent of an investigation of a crime by a police, if it is cognizable in nature. 
• Nonetheless, beginning of criminal proceedings is generally with the information regarding the cognizable offence and so, we start with the same by understanding the concept of FIR (First Information Report), which is also not defined anywhere in CrPC.
• Section-154 of the CrPC denotes ‘Information in cognizable cases’, but for the purpose of general understanding – ‘cognizable offence’ and ‘cognizable case’, both are synonymous. Section-2(c) of the Code spells out the cognizable offence is cognizable case, in which a police officer may arrest (person/s) without warrant. In such cases, police can also investigate the same without any orders of the Magistrate.

Section-155: Information as to non-cognizable cases and investigation of such cases: 

• Normally, in practice – police never entertain any information regarding the non-cognizable cases/offences. However, this section-155(1) says even in case of non-cognizable offence, police have to ‘enter such information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the information to the Magistrate.’         
• Sub-section (2) of 155 puts the bar on investigation by the police in case of non-cognizable offence, unless Magistrate so orders. It says: “No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.”   
• However, sub-section (3) says: if the Magistrate orders for investigation of such non-cognizable case to the police, then, ‘police may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.’           
• Sub-section-(4) further clarifies that: “Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.” 

Section-156: Police officer’s power to investigate cognizable case:

• This section is simple and gives powers to police to investigate the cognizable cases ‘without the order of a Magistrate’ and sub-section-(2) further says: ‘No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.’ 
• However, under certain Special Penal Statute/s the qualification of the Investigation Officer is prescribed and such Special Penal Act would override the General Act/Code i.e. CrPC e.g. under the SC and ST (Prevention of Atrocities) Act, 1989 and Rules thereunder of 1995: Rule-7 says: An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police.
• And lastly, sub-section (3) of 156 says: “Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.”
• The scope of the aforesaid sub-section goes like this: When, information is given to police about the cognizable offence and if police fails to register the same, then, the remedy available to an aggrieved person is as per section-154(3) of the Code (send it to superior).
• However, if that is not yielded any result, then, an aggrieved person can approach the Magistrate with a complaint (S.2[d]) and when he approaches the Magistrate with the complaint, Magistrate may exercise the power under section 190 of the Code and may order such an investigation (for such offence/s) and then, the police do not have any option but to register the FIR and start the investigation.

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OM PRAKASH VS. RELIANCE GENERAL INSURANCE AND ORS. AIR 2017 SC 4836

MATERIAL FACTS

The Appellant Insured Truck was stolen. The Appellant submitted the insurance claim to the Respondent Company and the fact of the fraud was verified by an investigator authorized by the company. Subsequently, the Corporate Claims Manager granted the Appellant’s amount for the aforementioned claim.
The Appellant subsequently made a range of appeals and queries to the Respondent-company requesting, inter alia, timely approval and disposition of its insurance claim, and the Respondent-company rejected the Appellant’s insurance claim, making reference to the violation of the Imminent Knowledge Condition relating to the loss/theft of the vehicle.
The appellant subsequently sent a complaint to the District Forum, the State Commission, and the National Commission. The National Commission had rejected this petition. In the present appeal, the Appellant challenged the lawfulness and validity of the aforementioned decree.

ISSUES

Whether the National Commission correctly dismissed the revision petition on the basis that, after a delay of 8 days from the incidence of theft, the Appellant filed his claim?

RULE OF LAW

Section 379 of the Indian Penal Code
Section 12 of the Consumer Protection Act, 1986

ANALYSIS

It is a universal understanding that an individual who has lost his vehicle will not go to the insurance company immediately to demand compensation. He will initially make attempts to track the vehicle. Such a claim cannot be dismissed on the basis of delay unless the justification for the delay in submitting a claim is sufficiently and satisfactorily clarified.
It is also important to acknowledge here that dismissing legitimate statements that have previously been checked and established by the investigator to be right would not be fair and rational. The delay state shall not be a refuge for the repudiation of insurance claims which have already been exhibited to be valid and true. The purpose of the Consumer Protection Act is to deliver stronger protection for consumers’ interests. It is a favorable statute worthy of egalitarian development. Although contemplating the contentions made under the Act, this meritorious purpose should not be ignored. In the case at hand, the Appellant offered coherent explanations for the 8-day delay in notifying the Respondent of the occurrence.

The Investigator had evaluated that the loss was credible and the Corporate Claims Manager authorized the compensation for the claim, which was fair and reasonable. Without taking into consideration the reason for the delay, the National Commission was not rational in dismissing the Appellant’s argument. The appeal was therefore approved and the appellant was qualified to claim compensation. Directions are given by the National Commission, the State Commission, and the District Forum were set aside.

CONCLUSION

It is completely true that the owner must instantly notify the insurer after the theft of the vehicle. This situation should not, nevertheless, preclude the settlement of legitimate cases, especially when the gap or the delay in intimating or presenting documents is due to inevitable conditions. The insurer’s determination to deny the claim has to be centered on legitimate and valid reasons. The procedural denial of claims on a solely technical basis would contribute to the deterioration of faith of insured people in the insurance sector. Such a claim cannot be dismissed on a technical basis if the explanation for the delay in making a claim is sufficiently stated.
The Respondents were therefore ordered to pay the sum with interest to the Appellant from the filing date of the petition until the payment date.

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Rajib Dey vs The State of Tripura

Facts:

A case was lodged against the petitioner for entering the premises of the respondent and snatching a gold chain from the neck of the respondent’s grandson. People living nearby detained the accused and recovered a gold chain from his possession following which the accused was handed over to the police. The trial framed charges against the accused after examining all the prosecution witnesses and was sentenced to one-year rigorous imprisonment along with a fine. The accused petitioner aggrieved by the decision filed an appeal to dismiss the judgment set by the trial court.

Issues:

Whether the accused is liable under criminal trespass and extortion?

Legal Provisions:

• Section 384,IPC – Punishment for extortion
• Section 411, IPC – Dishonestly receiving stolen property
• Section 447, IPC – Punishment for criminal trespass

Petitioner’s Contention:

The learned counsel appearing for the petitioner submitted that the trial court had erred in its decision without verifying the evidence. It was further submitted that the conviction of the accused under either Section 384 or Section 411 did not seem valid because the ingredients of the stated offense are completely different from each other. There is nothing to prove if the gold chain belongs to the respondent’s grandson and had not been produced before the court which implies that allegedly the accused has been framed for the said charges. It was pleaded to acquit the accused.

Respondent’s Contention:

It was submitted by the learned counsel that prosecution witnesses had in their submissions made clear about the presence of the accused and carrying a gold chain in his possession. It was after the hue and cry of the child that attention was drawn spotting the accused at the place of the incident. It was, therefore, pleaded to dismiss the appeal of the petitioner.

Observations of the court:

After going through the contentions presented by both parties, it was observed that no evidence could be laid down to prove if the property received was stolen or even dishonestly received. None of the prosecution witnesses produced before the court were able to confirm as to when, where, and how the accused was detained. A person who has been said to have been found with possession of the stolen property cannot be put under the provision of Section 411 unless it is proved beyond a reasonable doubt. There is no strong evidence which corroborates the aforesaid event.

Judgment:

The court delivered a judgment of acquitting the accused due to lack of evidence to prove if he’s guilty and therefore all the charges framed against him are set aside.

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DARGA RAM V. STATE OF RAJASTHAN AIR 2015 SC 1016

MATERIAL FACTS

The Complainant had arranged a Jagran somewhere on the fringes of the village in Rajasthan. Until midnight there were about fifty (50) individuals, including men, women, and children, including Kamala (the 7-year-old victim) and Darga Ram (the appellant). Kamala went to sleep in a nearby location with the other children. When the complainant, the victim’s father, went to the house, he discovered that Kamala was missing.
The search was then carried out on the periphery of the village, and one of the members of the village found her dead body. Upon further investigation, Kamala was found to have been raped and killed by smashing her head with a heavy stone. A case was registered under Section 302 and Section 376 of the Indian Penal Code. Darga Ram, who was a deaf, dumb, and uneducated teenager, was further interrogated and arrested by the police on the grounds of the injuries found on his intimate (or rather private) parts, along with bloodstains that matched with the victim’s blood group.
In addition to a fine of Rs. 1000/- and a default sentence of one month with rigorous imprisonment, the trial court ultimately found the appellant guilty and thus convicted him and sentenced him to incarceration for a term of ten years. Correspondingly, he was sentenced to life imprisonment and a fine of Rs. 3000/- and a default term of three months of rigorous imprisonment for the crime of punishment for murder.
An appeal was subsequently lodged by the appellant seeking to raise a plea that, at the time of the commission of the Act, the appellant was a juvenile and thus entitled to the benefit from the provisions of the Juvenile Justice Act, 2000.

ISSUES

1. Whether the appellant was a juvenile when the offense took place?
2. Whether the appellant is entitled to get benefits from the provisions of the Juvenile Justice Act, 2000?

LEGAL PROVISIONS

• Sections 302 and 376 of Indian Penal Code, 1860
• Rule 12(3)(b) of Juvenile Justice (Care and Protection of Children) Rules, 2007

JUDGEMENT

The Hon’ble Court ordered the Principal, Government Medical College, Jodhpur, to set up a medical examination board of doctors, including a radiographic examination of the appellant, to ascertain the age of the appellant as at the time of the offense in April 1998, took place because the appellant had no historical evidence, such as a school or other certificate. On the evidence of the Medical Board’s calculation, it was determined that, on the date of the incident, the juvenile was just 17 years, 2 months, and entitled to benefit from the provisions of the Juvenile Justice Act, 2000.
The appellant was thus deemed a juvenile in this case and the sentence awarded to him was set aside and was released from prison.

ANALYSIS

The reality that the appellant who was found guilty of the rape and murder of an innocent young child and been in prison for almost 14 years, was acquitted on the basis that he was a juvenile at the time of the commission of the offense. One is forced to believe, like the prosecution that the appellant has engaged in sexual abuse, which at the level of his growth may be a normal manifestation of natural sex. Although, his cognitive abilities were not improbable, his potential to comprehend desire, sexual arousal, and its limits could be severely impaired.
Since the appellant was illiterate and had no historical evidence, such as school or some other certificate. The question must be posed as to why hearing and speech impairment and lack of education weren’t treated as a cause for extenuating circumstances until the age of seventeen years. It was interesting why the appellant did not seek protection under Section 2(b) of the Equal Protection Act of Persons with Physical Disabilities, 1995, and why he was not protected under Section 2(d) (iii) of the Juvenile Justice Act, 2000

In such cases, the age of the juvenile should be the decisive factor and not the heinousness of the offenses a juvenile who was a minor during the commission of the offense and should not be held accountable as there was an inadequate development of cognitive faculties and decision-making abilities.

CONCLUSION

Law and social norms have always been aware of a widespread perception that children and young people are not even completely developed, they are in the cycle of development. Their brains experience a phase of great plasticity triggered by the hormonal transition of adolescence, in which the socio-emotional system that governs emotions and rewards sensitivity grows faster than the cognitive control mechanism that regulates planning, rationality, and self-discipline.
Consequently, their roles should be distinct and primarily motivated with a view to fostering rehabilitation rather than irreversible separation from society to the greatest extent possible.

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MOBARIK ALI AHMED V. THE STATE OF BOMBAY, AIR 1957 SC 857

MATERIAL FACTS

Mr. Louis Anton Cornea, the complainant, was a businessman residing in Goa and also the director of a trading firm namely, Colonial Limitada, which was doing business in import and export. Due to the scarcity of rice at the time in Goa, the complainant was anxious about the import of rice and thus, got in contact with Mr. Jassawla, a commission agent under Universal Supply Corporation. Mr. Mobarik Ali Ahmed, the appellant, was a businessman residing and trading in Karachi, Pakistan under name of Atlas Industrial and Trading Corporation and Ifthiar Ahmed & Co. The appellant was contacted by Mr. Jasawalla. Series of telegrams, phone calls, and letters were exchanged between Mr. Jasawalla and the complainant, and Mr. Jasawalla and the appellant after a contract was formed for the sale and purchase of 1200 tons (later 2000 tons) of rice at the price of 51 pounds per ton.
25% of the payment was paid in advance to Mr. Jasawalla and the rice was to be shipped from Karachi to Goa. After the quantity was raised to 2000 tons, 50% of the payment was paid in advance after the appellant had given assurance of complete arrangements. After the delivery was delayed, the complainant requested for his money to be returned but the appellant denied getting any payments.

ISSUES

• Whether the appellant, a Pakistani national, doing business in Karachi who wasn’t present in India pre or post the occurrence of offense can be put on trial by an Indian court or not?
• Whether the exchanged telegrams and letters be admissible in court or not?
• Whether the appellant is convicted for the offenses under Section 3(2) of the English Extradition Act, 1870 or not?
• Whether the conviction of the appellant is justifiable under section 420 read with section 34 of the Indian Penal Code, 1860 or not?

JUDGEMENT

Taking into consideration the arguments, the evidence, and facts presented before the court, the appeal was dismissed and the decision was taken to convict the appellant Mobarik Ali Ahmed under section 420, read along with section 34 of the IPC.

ARGUMENTS PRESENTED BY THE APPELLANT

The learned counsel by raising contention denied the exchange of letters or telegrams between the complainant and the appellant and argued that the telegrams and letters which were being relied upon are inadmissible in the court and that there exists no intimate acquaintance who can validate the signatures.
By relying on the case of Shreekantiah Munipalli v. The State of Bombay, which held that “the acts done by several persons in furtherance of common intention”, the learned counsel argued that as per section 34 of the Indian Penal Code, the appellant wasn’t even present in Bombay but was in Karachi for the commencement of the offense. Thus the appellant did not join the actual doing of the act and merely planning is not sufficient to hold someone liable and should not be tried under section 179 of the Code of Criminal Procedure because he has not committed any offense under the Indian Penal Code.
The appellant had surrendered himself for the offense of forgery and under Section 3(2) of the English Extradition Act, 1870, is protected and cannot be tried for other crimes without giving the opportunity to return.

ARGUMENTS PRESENTED BY THE RESPONDENT

Under section 415 of the Indian Penal Code, cheating is defined with its essentials as fraudulent misrepresentation to a person and inducing that person thereby to deliver property. And it is evident from the facts that all the elements of cheating are present and thus the appellant had intended to cheat. The appellant had submitted a statement stating that he had continued to live in India till July 1950 and established himself as a citizen of India. Under article 5 of the Indian, Constitution read with article 7, the appellant was a citizen of India at the time of commencement and commission of the offense. The claim of the appellant being a foreigner cannot help true under article 9, till he shows that he voluntarily acquired citizenship of a foreign country, and in the present scenario; he didn’t have any proof of acquiring citizenship of Pakistan.

ANALYSIS

The court held that the telegrams and the letters were authentic and thus were admissible in the court of law and thus were considered as important and direct evidence, article 45 and 47 of the Indian Evidence Act were referred. Testimony of 3 witnesses was taken into consideration, witnesses being the complainant, Mr. Jasawalla, the mediator, and Sequeria who was an ex-employee of the appellant.
Relying on H. N. Rishbud v. The State of Delhi, it was observable that section 3(2) of the English Extradition Act, 1870 had no effect as the appellant had surrendered himself. The court emphasized that under the section of the Indian Penal Code, any foreigner who commits any offense in India can be punished without any limitations because the exercise of criminal jurisdiction is dependent on the offense itself and not the nationality of the said offender. The court also said that the case of Shreekantiah Munipalli v. The State of Bombay, on which the council of the appellant was relying, affected the present case, judging by the facts.

CONCLUSION

Although if the crime took place in Bombay while the appellant was not evident to be present in India throughout the execution of the crime, his conviction was justifiable under the Indian Penal Code, as all the elements which constitute the offense of cheating under Section 420 of the Indian Penal Code were carried out in Bombay.

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INTRODUCTION

The final stage in the system of criminal jurisprudence is the stage of punishment. Once the court, after having evaluated the evidence presented before it, arrives at a conclusion that the accused has been proved guilty beyond a reasonable doubt, it has to decide over the quantum of punishment that should be awarded to the convict. The broad principles used to determine the quantum of punishment has been dealt with under Chapter 3 of the Indian Penal Code (IPC). The sentencing policy across the country isn’t uniform and the sentences reflect the individual philosophy of the judges. The considerations affecting the sentencing policy were pointed out by Justice Krishna Iyer in Rajendra Prasad v. State of Uttar Pradesh – “Law must be honest to itself. Is it not true that some judges count the number of fatal wounds, some the nature of the weapons used, others count the corpses or the degree of horror and yet others look into the age or sex of the offender and even the lapse of time between the trial court’s award of death sentence and the final disposal of the appeal? With some judges, motives, provocations, primary or constructive guilt, mental disturbance and old feuds, the savagery of the murderous moment or the plan which has preceded the killing, the social milieu, the sublimated class complex, and other odd factors enter the sentencing calculus.” The prime focus of punishments in our criminal jurisprudence was considered in State of Gujarat v. Hon’ble High Court of Gujarat in which the Supreme Court observed that – “Reformation should hence be the dominant objective of punishment and during incarceration, every effort should be made to recreate the good man out of a convicted prisoner…. reformation and rehabilitation of a prisoner are of great public policy. Hence they serve a public purpose.”

KINDS OF PUNISHMENTS

The different types of punishments that a convict can be awarded have been listed out u/s 53 IPC. This provision itself is indicative of the restricted discretion of the judge in ascertaining the type of penalty as it provides only for a select few punishments. The IPC doesn’t even allow the courts the discretion to impose even the latest forms of punishments like community service and open-air prisons on a person convicted of any offense under the IPC. The IPC has for some offenses itself provided for a minimum sentence whereas, in most other crimes, the trial court has got a wide discretion in the ascertainment of the period of sentences and the choice amongst the aforementioned kinds of punishments, given the nature and gravity of the crime, manner in which it was committed, the conduct of the accused before and after the commission of the crime and other mitigating and aggravating factors.

The various types of punishments that a convict can be sentenced to are –

Death penalty –

It is the harshest of all punishments provided under the IPC. It involves killing the convict as a punishment for his crime. Numerous arguments have been raised both for and against the imposition of capital punishment. One side argues it to be a deterrent while the other raises the question of whether the state has a right to take an individual’s life, something which it cannot restore in case of an erroneous judgment. The IPC provides the death penalty only as an uppermost limit to which a convict can be sentenced and has nowhere made it compulsory for the courts to award a death sentence. The IPC provides capital punishment for Treason (S.121), Abetment of mutiny (S.132), Perjury (S.194), Murder (S.302), Abetment of suicide by minor/insane/intoxicated person (S.305), Attempt to murder by life convict, causing hurt (S.307) and Dacoity with murder (S.396)
The question over the constitutional validity of capital penalty was answered and laid to rest by the Supreme Court in Bachan Singh v. the State of Punjab, where the 5-judge bench, with a 4:1 majority, upheld the constitutional validity of the death penalty. It went on to observe that life imprisonment is the rule and the death penalty an exception and that the judge must state in detail the special reasons for his awarding capital punishment. The court further went on to hold that a convict should not be sentenced to capital punishment “except in rarest of the rare cases when the alternative option is unquestionably closed”
The courts have from time to time come up with principles explaining the rarest of the rare cases doctrine. The Supreme Court in Machhi Singh v. the State of Punjab, Lehna v. the State of Haryana, and Brajendra Singh v. State of Madhya Pradesh laid down various guidelines to be considered while granting capital punishment. They include –

• The death penalty cannot be inflicted except in gravest cases of extreme culpability;
• The circumstances of the offender, circumstances in which the crime was committed and the method and manner of commission of the crime need to be considered;
• Balance sheet of aggravating and mitigating circumstances should be drawn up and mitigating circumstances should be accorded full weightage to draw a just balance between the aggravating and mitigating circumstances;
• Death penalty may be awarded when the crime committed is extremely brutal, grotesque, diabolical, revolting, and dastardly (or) is committed for a motive which evinces total depravity and meanness (or) for the betrayal of the motherland (or) where a member of Scheduled Caste or an innocent child or a helpless woman or old or infirm person has been murdered (or) where the imposition of any punishment other than the death penalty is completely inadequate.

In a case where the judge is of the opinion that the accused is, in fact, guilty and should be awarded capital punishment, he must give a chance to the accused as per section 235 CrPC to put before the judge the facts and circumstances which in the accused’s opinion would allow the judge to mitigate his sentence. Non-compliance with this sentencing procedure vitiates the sentence.

Life Imprisonment –

It means rigorous imprisonment running throughout the remaining period of a convict’s natural life. Imprisonment for life is not equivalent to imprisonment for 14 years or 20 years. Section 57 of the IPC makes life imprisonment equivalent to imprisonment for 20 years only for the purpose of calculating fractions of terms of punishment. The Supreme Court in Gopal Vinayak Godse v. State of Maharashtra clarified that no provision of the law states that life imprisonment is for a period of 20 years. Furthermore, section 55 of the IPC r/w Ss.432-433 CrPC state that an appropriate government may suspend or remit the life sentence of a convict. The condition attached to it is that the convict must have served at least 14 years in prison. However, if the President or the Governor (by exercising their powers under article 72 and 161 respectively) of the Indian constitution decide to remit or commute the life sentence of the convict, the convict shall be released immediately even if he hasn’t served the statutory requirement of 14 years in prison. This is because Section 433A of CrPC, being a statutory provision, cannot override the constitutional power conferred upon the President and the Governor under articles 72 and 161.
NOTE: Commutation under section 55 IPC means that the punishment is altered to a different type than the one originally proposed whereas Remission refers to the act of reducing the amount of punishment without changing its character.

Imprisonment –

It refers to the confinement of a convict in a place used to detain persons convicted of crimes. The IPC recognizes two forms of imprisonment, namely, rigorous and simple. Rigorous imprisonment involves putting the convict to hard labor such as grinding corn, digging the earth, drawing water, cutting wood, bowing wool, making furniture, etc. whereas a convict is not put to any work in case of simple imprisonment.
The Supreme Court in State of Gujarat vs Hon’ble High Court of Gujarat clarified that the prisoners who are put to hard labor should necessarily the paid minimum wages for the work extracted. It has also been noted by the Supreme Court that S.53-fourthly mandates the jail authorities to impose hard labor on the convict sentenced to rigorous imprisonment. In the course of doing so, the jail official cannot be said to have been committing any offense under section 374 IPC. This will not, however, be applicable in cases where the accused is awarded simple imprisonment or detained under preventive detention laws or under trial prisoners.

Forfeiture of Property –

This form of punishment involves depriving a person of his property as a penalty for the offense committed. It can be imposed under the IPC only when the crimes committed are those under S.126 (committing or making preparations to commit depredations on territories of power in Alliance or at peace with Government of India), 127 (a receipt of the property taken in the commission of War or depredation), 169 (unlawful buying or bidding for property in own name by a public servant) and to some extent S.263A (Prohibition of fictitious stamps). The Supreme Court in Shobha Suresh Jumani v. Appellate Tribunal, Forfeited Property recognized the rampant corruption prevailing in the society and recommended the reintroduction of S. 61 and 62 of the IPC on forfeiture of property which was repealed by the Indian Penal Code (Amendment) Act, 1921.

Fine –

It means forfeiting money as a form of penalty. This form of punishment has been considered valid on the ground of its universality; however, the fine imposed should be proportionate to the offense committed because it not only affects the convict but also his dependents. Under IPC, a fine can be imposed as the sole punishment or an alternative punishment or for a limited amount or unlimited amount. Judges have broad discretion while quantifying the fine to be imposed, especially where the provision makes no stipulation as to the amount of fine. Courts being the administrators of justice, it is expected of them that the fines imposed should be fair, just, reasonable, and not excessive. The fine imposed should be within the convict’s capacity to pay but he must feel the pinch in paying it. The imposition of a sentence of fine should be on an individual basis and not collectively. Various cases of non-payment of fine and its various forms have been dealt with under Ss. 64-69 IPC.
The IPC, under Ss. 73 and 74, also provides an award of Solitary confinement only as a part of a sentence of rigorous imprisonment if the court deems fit. It refers to the separation and keeping the prisoners in complete isolation in a cell where he cannot have any direct interaction with or sight of any human being and is without employment or instruction. Solitary Confinement is one of the harshest punishments, the court has held that it shouldn’t be awarded unless the crime committed was extremely brutal or accompanied by unparalleled atrocity. Under no circumstances can solitary confinement be imposed for a period of more than 14 days at a time and not more than 7 days in any month of the whole imprisonment. Solitary confinement cannot be awarded for more than: a. 1 month, where imprisonment doesn’t exceed 6 months; b. 2 months, where imprisonment exceeds 6 months but is less than 1 year; c. 3 months, where imprisonment exceeds 1 year. In cases where a person has been held guilty for various offenses but it’s doubtful as to which of these is the person guilty, he shall be sentenced for the offenses with the lowest punishment.

PROPOSALS FOR REFORMS

The Law Commission, in its 156th Report, recommended few changes to the punishments under IPC:

 The amounts to be imposed as fine be increased at least by 20 times with a corresponding change in the powers of First Class Magistrates to impose such fines;
 The open-air prison system, according to the commission, would be more effective than Community service among the punishments because the latter involves various enforcement issues.
 A punishment of “Public Censure” was sought to be included in S.53 IPC for the offenses in Chapters XII-XIII, Ss. 272-276, 383-389, 403-409, 415-420 and offenses proposed under new S. 420A and 462A, IPC (Amendment) Bill, 1978. These are offenses where persons entrusted with some public duties commit offenses. Such a punishment is likely to act as a greater deterrent due to the fear of infamy resulting from publicity.
 The death Penalty should be retained but awarded as per the guidelines of the Supreme Court.

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