AuthorAbhishek Wadhawan

1. Dattubhai Kathubhai Padvi Vs. State of Gujarat

Case No.: Criminal Appeal No. 340 Of 2014

Bench And Author: Dr. Justice A.P. Thaker

Date: November 26, 2018

The relevant facts of the case are that the victim was hit by the accused severely on the chest subsequent to which the victim had to be hospitalised for a period of fifteen days. The son of the victim filed a case against the accused and the Sessions Court convicted the accused under Section 307 of the Indian Penal Code. It was also found by the Court through various witnesses that a land was under dispute between the victim and the accused. The accused had purchased a land from the maternal uncle of the victim on which he wanted to build a house which was strongly opposed by the victim and his family.

In the appeal filed by the accused challenging his conviction under Section 307 of the IPC, it was argued that there was no eye witness to the entire scene and the statements of the various witnesses of the so called incident were inconsistent with each other. It was further contended that no severe blow was given by the accused to the victim due to which he was hospitalised. These contentions were not entertained by the Court.

The Court came to the conclusion with the aid of the statements of various witnesses and medical records that the accused had hit the victim on his chest with a spear. Chest is a vital part of the body of a human and the injury inflicted upon on him was so severe that if proper medication would not have been provided to the victim, he could have died. With reference to the ongoing land dispute between the parties, the contention of no motive of the accused behind murdering the victim was also not entertained by the Court. As the Court did not find any merit in the appeal, the appeal was subsequently dismissed. Yet, after taking into account the age of the accused (68 years) and the fact that it was his first offence, the Court reduced the sentence of rigorous imprisonment of the accused from seven years to five years.

Key takeaway: Chest is an important part of the body of a human and any attempt by a person to hit another person on his chest in such a manner that he may die if proper medication is not provided, such an offender may be charged under Section 307 of the IPC for the offence of – attempt to murder.

2. Mahendrabhai @ Mahilo Raijibhai Parmar Vs. State of Gujarat

Case No.: R/Criminal Appeal No. 1102 Of 2015

Bench And Author: Dr. Justice A.P. Thaker

Date: November 26, 2018

The prosecution’s case was that the complainant had kidnapped her daughter, who was a minor on date of the incident. The prosecution also argued that according to the medical records, the accused had sexual intercourse several times with the victim. The trial court convicted the accused under Sections 363, 366 and 376 of the Indian Penal Code which was challenged in this appeal. The accused contended that the victim, though minor, had consented to run away with him. Every time the accused and the victim had a sexual intercourse was with the consent of the victim.

It was strongly contended that when the incident took place, Section 376 of the IPC was not amended and that the Section 376 before the amendment stated that a consent of a girl below the age of 16 years for sexual intercourse is invalid. But at the time of the incident, the victim was 17 years old and hence her consent was valid under the Section 376 before amendment. The Court did not accept the contentions of the accused.

The Court stated that the victim being a minor, her consent had no value in the eyes of law. Before taking the victim anywhere, the accused ought to have taken the permission of the guardians of the victim which was not taken. The consent of the victim for having sexual intercourse is invalid since she was a minor at that the time of the incident. Accordingly, the appeal was dismissed and the order of the Trial Court was upheld.

Key takeaway: Sexual intercourse with a minor even with her free consent is a crime and the offender can be charged for rape. The consent of a minor holds no value in the eyes of law. Before, taking a minor to any place, the minor’s consent is irrelevant, permission must be taken from the minor’s guardians.

3. Khimjibhai Pethabhai Sarvaiya Vs. State of Gujarat

Case No.: R/Criminal Revision Application No. 703 Of 2017

Bench And Author: Justice G.R. Udhwani

Date: November 23, 2018

The relevant facts of the case are that the petitioner was a police constable under the Gujarat Police. During the tenure of his service, the petitioner was constantly transferred and the petitioner was also subjected to various departmental inquiries which the complainant challenged to be a violation of his human rights. The District Court rejected the petitioner’s application under the Human Rights Act and this dismissal was challenged by the petitioner before the High Court.

The Court held that it cannot be disputed that an employer has all the rights under the relevant rules to proceed departmental undertakings against his employees in cases of misconduct or any other relevant illegalities. An employer also has the rights to transfer his employees. Resorting to the rules and subjecting an employee to departmental proceedings cannot be interpreted to be a violation of the human rights. When there is no violation of human rights, no court of law has the responsibility to inquire into a human rights violations case. Inquiry is necessary only in cases where there is a prima facie evidence that the human rights of person have been violated. Thus the contention that without inquiry into the case, the lower court dismissed the application under the Human Rights Act has no merits. Thus, the application was dismissed by the Court.

Key takeaway: Subjecting an employee to departmental proceedings for misconduct or any other illegalities, though frequently but as per the rules, and frequent transfers of an employee by his employer may not be termed to be a violation of human rights of the employee.

About the Author: Abhishek is 2018-23 Batch student at Gujarat National Law University, Gandhinagar.

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