Author: Abhishek Wadhawan

1. Gurappa v. H. Devaraju

Case No.: Criminal Appeal No. 1196 of 2015

Bench and author: Dr. Justice H.B. Prabhakara Sastry

Date: November 05, 2018

The case deals with a dishonour of a cheque issued by the accused to the complainant. The complainant claimed that the accused was his student and when he asked for financial help, the complainant gave him a loan of Rs. 1,15,500. The cheque which the accused had issued him subsequently bounced and the complaint was filed under Section 138 of the Negotiable Instruments Act, 1881. Under Section 139 it is presumed that the payee/ holder of the cheque is correct unless and until the accused rebuts in a manner known to law so as to prove that the claim of the complainant is false. In the instant case, the court ruled in favour of the accused on the points that: (1) The claim of the complainant that the accused was known to him could not be proved as the complainant taught in another school whereas the accused studies in the other as the records proved. (2) The accused was also not the resident of the place where the complainant had sent the notice (3) The complainant could not show the source of his funds in order to lend it to the accused.

The Court held the accused not liable as he could successfully rebut the contentions of the appellant.

Key takeaway:  Where the presumption under Section 139 of the Negotiable Instruments Act, 1881 is successfully rebutted by the opposite party, in such a situation it is the onus of the complainant to produce corroborative documentary evidence to show that the transaction had taken place.

2. State of Karnataka v. Basavaraj & Ors.

Case No.: Criminal Appeal No. 100206/2015

Bench: Justice B.A. Patil and Justice R. Devdas

Author: Justice B.A. Patil

Date: November 09, 2018

The case deals with the charges of dowry filed by wife on her husband, husband’s parents and a few other relatives of the husband’s family. But the accused was acquitted by the Trial Court and the said acquittal was challenged in the High Court. In the given case one of the witnesses had given goodbye to the evidence in examination-in-chief at the time of cross-examination. While the prosecution stated that the accused troubled the victim mentally and physically for dowry, one day kerosene was poured on the victim and fire was set to her body but she was subsequently saved by her neighbours.  The witness changed her statement during the cross-examination that the fire burn was caused due to an accident and indeed her husband had intervened to save the victim. Accordingly, the court accepted to treat her as a hostile witness as there was no consistency in the prosecution’s case and the statement made by the victim during the cross examination. The Court further tried to treat the hostile witness’s statement as an evidence under Section 154 (II) of the Indian Evidence Act, 1872 but since there was no consistency in the statements of the witness (the victim herself), the Court decided not to accept it as an evidence. All other witnesses also did not support the prosecution’s case. Accordingly, the Court concurred with the decision of the Trial Court and dismissed the appeal.

Key takeaway: Under Section 154 (II) the evidence of a hostile witness may also be accepted if some material in the statement/evidence of the hostile witness supports the case of a prosecution, but in cases where there is no consistency in the evidence of the hostile witness and the prosecution’s case or any previous evidence provided, such an evidence of the hostile witness cannot be used in the case for deciding on a case.

3. Athaulla v.. State of Karnataka

Case No.: Criminal Revision Petition N0. 117 of 2011

Bench and author: Justice K. Somashekhar

Date: November 09, 2018

The Revision Petition was filed by the accuse challenging the judgments of the trial court and the First Appellate Court. The accused was convicted under Section 297, 337, 338 and 304-A of the Indian Penal Code. The prosecution’s case was that the accused was driving a mini-bus in a rash and negligent manner due to which the mini bus turtled on the left side and one of the passengers died and many were injured. But on careful reconsideration of the witnesses and the evidences, the Court found that during the accident hours, the accused – the regular driver of the mini-bus was not driving the mini-bus and it was driven by a cleaner. The Court also came to know that the said cleaner who was driving the mini-bus at that time had not given his statement nor did the Investigating Officer take any endeavour to take the cleaner’s statement. The Court also concluded that the prosecution had failed to establish that the mini-bus was being driven by the accused- driver and the prosecution could also not prove that the mini-bus was being driven in a rash and a negligent manner. The Court held that one of the major ingredients of Section 279 of IPC is that the offender should be driving the vehicle himself and this particular ingredient was not proved by the prosecution. Section 304-A postulates a rash and a negligent act entailing the death of another. In this case, the prosecution could not prove rash and negligent driving by the accused and hence this Section may not apply. Accordingly, the revision petition was allowed and the petitioner was acquitted from all the charges levelled against him.

Key takeaway: Section 304-A is to be used only in cases where there is no intention to cause death and no knowledge that the act done in all probability would cause death. Offence under Section 279 can only be attracted if the accused himself was driving the vehicle in a rash and a negligent manner. 

4. Eranna v. State of Karntaka

Case No.: Criminal Appeal No.801 of 2010

Bench and author: Justice Ravi Malimath

Date: November 16, 2018

The appeal was filed by the accused challenging his conviction under Sections 341, 504 and 307 of the Indian Penal Code. The relevant facts of the case are that while the complainant and the wife of the accused were talking outside a hotel, the accused hit the complainant on vital organs and was subsequently convicted. The appellant contended that the prosecution failed to prove the motive of the accused to commit the offence and hence all the witnesses have turned hostile. The prosecution argued that the evidence of the injured eye witness with regard to the assault committed by the appellant is sufficient to convict the appellant. When the statements of the witnesses were re-considered, some part of the statements were considered to be hostile as the injured witness said that four witnesses were not present at the time of the offence. However, the part of the statements of the witnesses showed consistency between the statement of the injured witness and hence it was considered by the Court. The Court ruled that the need to prove or find motive is irrelevant when the injured witness has narrated the assault committed by the accused. In the case where the injured witness has reiterated the acts committed by the offender which are similar to the facts stated in the cross-examination, there is no reason to disbelieve the statement of the injured witness. Accordingly, the appeal was dismissed and the appellant was charged under Sections 341, 504 and 307 of IPC.

Key takeaway: The question of motive arises in only those cases in which only circumstantial evidence is available. In cases where the injured witness reiterates the acts of an offence committed upon on him by the accused, the question of motive is not material and hence it may not be taken into consideration.

5. Prakash Bovi @ Chikkanna v. State of Karnataka

Case No.: Criminal Appeal No. 904 of 2010

Bench and author: Justice Ravi Malimath

Date: November 15, 2018

The appeal was filed by the accused who challenged his conviction under Section 498-A and 306 of Indian Penal Code. The relevant facts of the case are that the accused used to verbally abuse and assault his wife on regular basis. One day, the accused troubled and harassed his wife so much that she committed a suicide and consequently died. The deceased’s mother filed a case against the accused and the accused was later convicted by the trial court under Sections 306 and 498-A of the IPC. The counsel on behalf of the appellant argued that the ingredients of Section 306 were not fulfilled whereas the prosecution argued that there is substantial material that shows that the accused was constantly beating and harassing the deceased and out of frustration, the deceased committed a suicide. While the deceased’s son was cross-examined, his statement maintained consistency with his statement at the time of examination-in-chief. The deceased’s son was only eleven years old when the incident happened, yet the Court deemed him to be fit to give evidence. As far as the submission of the appellant to reduce his term of rigorous imprisonment of five years is concerned, the Court held that even when the Section provides for a maximum imprisonment of ten years, the accused is only given an imprisonment of five years and hence there is no need to reduce the term. With regards to the submission of the appellant that he has already served a year’s imprisonment under custody, his term may be reduced by one year, the Court stated that though he might have undergone a sentence for a period of one year, but he has abetted the suicide of his own wife. Such a crime should not be easily ignored and hence the Court formed the opinion that the sentence should not be reduced. Accordingly, the appeal was dismissed.

Key takeaway: If an accused is sentenced to undergo a rigorous imprisonment for a period of five years under Section 306, which provides for a maximum imprisonment of ten years, such a punishment need not be reduced in cases where the accused has committed an offence which cannot easily be forgiven.

About the Author: Abhishek Wadhawan is 2018-23 batch student at Gujarat National law University, Gandhinagar.

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