Supreme Court Quarterly Digest On Indian Penal Code 1960 [ Jan-Mar 2023]

Penal Code, 1860 - Constitutional Courts can impose fixed term sentence even in cases where death penalty was not proposed - "Even in a case where capital punishment is not imposed or is not proposed, the Constitutional Courts can always exercise the power of imposing a modified or fixed-term sentence by directing that a life sentence, as contemplated by “secondly” in Section 53 of the IPC, shall be of a fixed period of more than fourteen years, for example, of twenty years, thirty years and so on. (Para 13) Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka, 2023 LiveLaw (SC) 252

Penal Code, 1860 - That the accused has no antecedents, is no consideration by itself for deciding whether the accused will fall in the category of the ‘rarest of the rare’ cases. It all depends on several factors. The Court, while considering the possibility of reformation of the accused, must note that showing undue leniency in such a brutal case will adversely affect the public confidence in the efficacy of the legal system. The Court must consider the rights of the victim as well. (Para 15) Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka, 2023 LiveLaw (SC) 252

Section 53 - Punishments

Penal Code, 1860; Section 53 - The majority view in the case of Union of India v. V. Sriharan @ Murugan & Ors., 2016 (7) SCC 1 cannot be construed to mean that power to impose fixed term sentence cannot be exercised by the Constitutional Courts unless the question is of commuting the death sentence - When a Constitutional Court finds that though a case is not falling in the category of ‘rarest of the rare’ case, considering the gravity and nature of the offence and all other relevant factors, it can always impose a fixed-term sentence so that the benefit of statutory remission, etc. is not available to the accused. (Para 12) Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka, 2023 LiveLaw (SC) 252

Section 84 - Act of a person of unsound mind.

Penal Code, 1860; Section 84 - Evidence Act, 1872; Section 105, 8 - The burden of proof does lie on the accused to prove to the satisfaction of the Court that one is insane while doing the act prohibited by law. Such a burden gets discharged based on a prima facie case and reasonable materials produced on his behalf. The extent of probability is one of preponderance. This is for the reason that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt. Secondly, it is the collective responsibility of the person concerned, the Court and the prosecution to decipher the proof qua insanity by not treating it as adversarial. Though a person is presumed to be sane, once there are adequate materials available before the Court, the presumption gets discharged - The behaviour and conduct before, during and after the occurrence has to be looked into. (Para 8-9) Prakash Nayi @ Sen v. State of Goa, 2023 LiveLaw (SC) 71

Penal Code, 1860; Section 84 - The existence of an unsound mind is a sine qua non to the applicability of the provision. A mere unsound mind per se would not suffice, and it should be to the extent of not knowing the nature of the act - A mere medical insanity cannot be said to mean unsoundness of mind. There may be a case where a person suffering from medical insanity would have committed an act, however, the test is one of legal insanity to attract the mandate of Section 84 of the IPC. There must be an inability of a person in knowing the nature of the act or to understand it to be either wrong or contrary to the law. (Para 4-7) Prakash Nayi @ Sen v. State of Goa, 2023 LiveLaw (SC) 71

Penal Code, 1860; Section 84 - Evidence Act, 1872; Section 105 - The burden of proving the existence of circumstances so as to bring the case within the purview of Section 84 IPC lies on the accused in terms of Section 105 of the Evidence Act; and where the accused is charged of murder, the burden to prove that as a result of unsoundness of mind, the accused was incapable of knowing the consequences of his acts is on the defence, as duly exemplified by illustration (a) to the said Section 105 of the Evidence Act - The mandate of law is that the Court shall presume absence of the circumstances so as to take the case within any of the General Exceptions in IPC. (Para 21) Prem Singh v. State of NCT of Delhi, 2023 LiveLaw (SC) 2 : AIR 2023 SC 193

Section 149 - Every member of unlawful assembly guilty of offence committed in prosecution of common object.

Penal Code, 1860; Section 149 - Cases involving several accused Persons - Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew would be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. When a case involves large number of assailants it is not possible for the witness to describe the part played therein by each of such persons. It is not necessary for the prosecution to prove each of the members’ involvement especially regarding which or what act. (Para 17.8) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225

Section 299 - Culpable homicide

Penal Code, 1860; Section 299, 300 - Distinction between murder and culpable homicide not amounting to murder - Locus classicus on the issue viz. Virsa Singh v. State of Punjab [1958] S.C.R. 1495. (Para 16-17) Prasad Pradhan v. State of Chhattisgarh, 2023 LiveLaw (SC) 59 : AIR 2023 SC 643

Section 300 - Murder

Penal Code, 1860; Section 300 - The requirement of Section 300 thirdly is fulfilled if the prosecution proves that the accused inflicted an injury which would been sufficient to have resulted in death of the victim. The determinative fact would be the intention to cause such injury and what was the degree of probability (gravest, medium, or the lowest degree) of death which determines whether the crime is culpable homicide or murder - When the nature of injury being so dangerous as to result in death (Section 300 fourthly), accused’s disregard to the consequences of the injury, and an element of callousness to the result, denotes or signifies the intention. (Para 18-19) Prasad Pradhan v. State of Chhattisgarh, 2023 LiveLaw (SC) 59 : AIR 2023 SC 643

Penal Code, 1860; Section 300 - The standard of reasonableness for applying the “grave and sudden” provocation - mere long-standing preexisting dispute does not attract the exception. (Para 23-24) Prasad Pradhan v. State of Chhattisgarh, 2023 LiveLaw (SC) 59 : AIR 2023 SC 643

Penal Code, 1860; Section 300 - There can be no stereotypical assumption or formula that where death occurs after a lapse of some time, the injuries (which might have caused the death), the offence is one of culpable homicide. Every case has its unique fact situation. However, what is important is the nature of injury, and whether it is sufficient in the ordinary course to lead to death. The adequacy or otherwise of medical attention is not a relevant factor. (Para 25-26) Prasad Pradhan v. State of Chhattisgarh, 2023 LiveLaw (SC) 59 : AIR 2023 SC 643

Section 302 - Punishment for murder

Penal Code 1860; Section 302 - Murder Trial - Supreme Court reverses concurrent findings of guilt entered by the trial court and High Court - Says exceptional case where gross errors are committed, overlooking crying circumstances and well-established principles of criminal jurisprudence leading to miscarriage of justice. Pradeep Kumar v. State of Chhattisgarh, 2023 LiveLaw (SC) 239

Penal Code, 1860; Section 302 - Murder Trial - Supreme Court sets aside conviction in a murder case - Notes that the Trial Court and the High Court grossly erred in their appreciation of evidence. Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227

Penal Code, 1860 - Sections 302 r/w. 34 - In a case rested on circumstantial evidence and ‘last seen’ theory is relied on as a link in the chain of circumstances, the evidence relating the time at which the deceased was lastly seen with the accused has to be proved conclusively as when it is proximate with the time of finding the dead body the burden to establish the innocence would be that of the accused. (Para 24) Shankar v. State of Maharashtra, 2023 LiveLaw (SC) 212

Penal Code, 1860; Section 302 - Murder Trial - In case of proven previous enmity, a possibility of false implication cannot be ruled out. (Para 34) Nand Lal v. State of Chhattisgarh, 2023 LiveLaw (SC) 186

Penal Code, 1860; Section 302 - Murder Trial - Omission on the part of the prosecution to explain the injuries on the accused would assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. (Para 26) Nand Lal v. State of Chhattisgarh, 2023 LiveLaw (SC) 186

Penal Code, 1860; Section 302 - Murder Trial - When there is concurrent findings of fact by the Trial Court and the High Court, the Apex Court ought not to re-appreciate the evidence to examine the correctness of such findings of fact, unless there is manifest illegality or grave and serious miscarriage of justice on account of misreading or ignoring material evidence - Conviction and sentence of mother for killing her 5-year old child upheld. Vahitha v. State of Tamil Nadu, 2023 LiveLaw (SC) 132 : AIR 2023 SC 1165

Penal Code, 1860; Section 302 - Murder Trial - Supreme Court affirms sentence and conviction of accused for murder based on solitary eyewitness testimony. Ajai @ Ajju v. State of Uttar Pradesh, 2023 LiveLaw (SC) 110 : AIR 2023 SC 996

Penal Code, 1860; Section 300, 302 - Concurrent conviction of murder accused set aside - There is a fair degree of uncertainty in the prosecution story and the courts below appear to have somewhat been influenced by the oral testimony of PW-2 and PW-3, without taking into consideration the effect of the other attending circumstances, thereby warranting interference. Munna Lal v. State of Uttar Pradesh, 2023 LiveLaw (SC) 60 : AIR 2023 SC 634

Penal Code, 1869; Section 302 - Appeal against concurrent conviction in a murder case - Allowed - Conviction set aside - The time gap between when the deceased was seen in the company of the accused on 09-10-1999 and the probable time of his death, based on the post mortem report, which was conducted two days later, but was silent about the probable time of death, though it stated that death occurred approximately two days before the post mortem, is not narrow. Given this fact, and the serious inconsistencies in the depositions of the witnesses, as well as the fact that the FIR was lodged almost 6 weeks after the incident, the sole reliance on the “last seen” circumstance (even if it were to be assumed to have been proved) to convict the accused-appellants is not justified. Jabir v. State of Uttarakhand, 2023 LiveLaw (SC) 41 : AIR 2023 SC 488

Penal Code, 1860; Section 302, 211 - Accused allegedly took his two sons, aged about 9 years and 6 years, to Haiderpur Canal, and strangulated them. Thereafter, he threw the dead bodies into the canal; and attempted to project as if it were a case of accidental drowning - Concurrent conviction under Sections 302, 211 IPC upheld by the Apex Court. Prem Singh v. State of NCT of Delhi, 2023 LiveLaw (SC) 2 : AIR 2023 SC 193

Section 306 - Abetment of suicide

Penal Code, 1860; Sections 306, 107 - In order to convict a person for the offences under Section 306 IPC, the basic constituents of the offence namely where the death was suicidal and whether there was an abetment on the part of the accused as contemplated in Section 107 IPC have to be established - In order to bring the case within the purview of ‘Abetment’ under Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused. For the purpose proving the charge under Section 306 IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide. (Para 6-10) Kashibai v. State of Karnataka, 2023 LiveLaw (SC) 149

Penal Code, 1860; Section 306 - Evidence Act, 1872; Section 113A - Mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC. (Para 14) Kashibai v. State of Karnataka, 2023 LiveLaw (SC) 149

Section 363 - Punishment for kidnapping

Penal Code, 1860 – Sections 363, 364A – Kidnapping for ransom vis-à-vis kidnapping simpliciter – Proof of kidnapping for ransom – Punishable with death or imprisonment for life and as such has a higher evidentiary threshold – Three stages or components, namely, first, kidnapping or abduction of a person and keeping them in detention; second, threat to cause death or hurt, and the use of kidnapping, abduction, or detention with a demand to pay the ransom; and third, when the demand is not met, then causing death – Fulfilment of second ingredient, namely, threat to cause death or hurt – Intimidation of child victim, for the purpose of making them silent not adequate – Held, prosecution’s case did not prove second ingredient beyond reasonable doubt as a result of the victim’s statement being subsequently modified to reflect crucial differences that would enable the prosecution to drive home the kidnapping for ransom charge – Further held, conviction under Section 364A ought to be altered in exercise of power under Section 216 of Code of Criminal Procedure into the lesser offence under Section 363 – Appeal partly allowed. Ravi Dhingra v. State Haryana, 2023 LiveLaw (SC) 167 : AIR 2023 SC 1243

Section 375 - Rape

Penal Code 1860; Section 375 Exception 2 - Sex with minor wife aged 16 years - Supreme Court acquits husband relying on exception 2 to Section 375 IPC. Siddaruda @ Karna v. State of Karnataka, 2023 LiveLaw (SC) 170

Section 376 - Punishment for rape

Penal Code, 1860; Section 376 - Accused concurrently convicted under Section 376 IPC for rape - Allowing his appeal and acquitting him, the Supreme Court observed: The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313 of Cr.P.C. had stated that she had filed the complaint as he refused to fulfill her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 of IPC. Naim Ahamed v. State (NCT of Delhi), 2023 LiveLaw (SC) 66

Penal Code, 1860; Section 376 - It would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence of rape under Section 376 IPC - Difference between giving a false promise and committing breach of promise by the accused - In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. (Para 20) Naim Ahamed v. State (NCT of Delhi), 2023 LiveLaw (SC) 66

Section 405 - Criminal breach of trust

Penal Code, 1860; Section 405, 406 - A mere dispute on monetary demand does not attract the offence of criminal breach of trust - Mere wrong demand or claim would not meet the conditions specified by Section 405 of the IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. (Para 15) Deepak Gaba v. State of Uttar Pradesh, 2023 LiveLaw (SC) 3 : AIR 2023 SC 228

Section 415 - Cheating

Penal Code, 1860; Section 415, 420 - The sine qua non of Section 415 of the IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and the absence of these elements would debase the offence of cheating - For the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security. (Para 17) Deepak Gaba v. State of Uttar Pradesh, 2023 LiveLaw (SC) 3 : AIR 2023 SC 228

Section 420 - Cheating and dishonestly inducing delivery of property

Penal Code, 1860; Section 420 - Code of Criminal Procedure, 1973; Section 482 - A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings - The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Sarabjit Kaur v. State of Punjab, 2023 LiveLaw (SC) 157

Section 464 - Making a false document

Penal Code, 1860; Section 464, 470 471 - The condition precedent of an offence under Section 471 of the IPC is forgery by making a false document or false electronic record or part thereof - A person is said to have made a ‘false document’: (i) if he has made or executed a document claiming to be someone else or authorised by someone else; (ii) if he has altered or tampered a document; or (iii) if he has obtained a document by practising deception, or from a person not in control of his senses. Unless, the document is false and forged in terms of Sections 464 and 470 of the IPC respectively, the requirement of Section 471 of the IPC would not be met. (Para 18) Deepak Gaba v. State of Uttar Pradesh, 2023 LiveLaw (SC) 3 : AIR 2023 SC 228

Section 498A - Husband or relative of husband of a woman subjecting her to cruelty.

Penal Code, 1860; Section 498A - When marriage has been found to be null and void, the conviction under Section 498A IPC would not be sustainable. (Para 7) P. Sivakumar v. State, 2023 LiveLaw (SC) 116