Bombay HC (DB): Judgment passed in Moinoddin s/o.Khodboddin vs.State of Maharashtra is not good law

 In our view, the said proviso carves out

an exception to the general rule which is

provided under Section 353(5) and (6) of the

Code. We, therefore, disagree with the view

expressed by the learned single judge Shri.

N.V. Dabholkar, J. recorded in the case of

Moinoddin s/o.Khodboddin vs. State of

Maharashtra(supra). The said issue is answered

accordingly. {Para 8}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.1455 OF 2008

Kanji R. Barot V The State of Maharashtra & Ors.

CORAM : V.M. KANADE & P.D. KODE JJ.

JUNE 12, 2014.

Citation: 2008 BCR CRI 2 881, 2008 BOMCR CRI 2 881

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Bombay HC: Sessions Judge shall pronounce Judgment in appeal against conviction in presence of the accused except as provided under S 353(6) of CRPC

Thus, taking note of all these pronouncements would make it clear that in fact, there is a duty on the Appellate Court i.e. Sessions Judge (including Additional Sessions Judge) to see that the Judgment in appeal against conviction should be pronounced in presence of the accused (only exception as enumerated in Section 353(6) of the Code) and to take such appellant in custody upon the confirmation of the conviction. The practice of pronouncing Judgments in appeal against conviction in absence of the accused, thereby dismissing the appeal and then directing the trial Court to issue warrant, requires to be deprecated. This is the practice adopted in the present case also and therefore, the point has been considered in detail.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 2743 of 2019 in Criminal Revision Application No. 323 of 2019

Decided On: 12.06.2020

Fazal Khalil Ahemad Shaikh Vs. Nandkishor Ramnivasji Agrawal and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2020 PLR IJ 198 40, 2020 SCC ONLINE BOM 706 ,2021 BC 3 52, 2020 AIR BOM R CRI 2 636, MANU/MH/0637/2020

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Bombay HC: First appellate Court after confirming the conviction, has no power to suspend the sentence, even if appellant may express his desire to prefer revision against the said conviction

 On reference to operative order of learned Sessions Judge, it is evident that while delivering the judgment on February 3, 2003, learned Sessions Judge ordered the petitioner to surrender his bail bond before the Trial Court- COM Nanded, on February 10, 2003 to undergo remaining part of the sentence. {Para 12}

13. In this context, a reference may be made to a judgment of this High Court (Coram R.M. LODHA, J.) in Dilip v. State of Maharashtra MANU/MH/0110/1995 : 1996(2)MhLj1004 , and more particularly contents in Paras. 5 and 7 of the judgment. It is evident that lower appellate Court after confirming the conviction, has no power to suspend the sentence, even if appellant may express his desire to prefer revision against the said conviction. The order directing the appellant accused to surrender after a week, in effect, resulted into suspension of sentence, by granting him some time to surrender.

14. Reading proviso to Section 387 of the Criminal Procedure Code, it may be argued that, it is not mandatory upon the appellate Court to direct the accused to be brought up or required to attend, to hear the judgment delivered because of the words "shall not" incorporated in the proviso. However, this proviso is required to be read in the light of Section 387 read with Sections 353(5) and 353(6). Provisions regarding the judgment, as contained in Chapter XXVII of the Criminal Procedure Code are applicable to the judgment of subordinate appellate Court and in Section 387 also the words used are "shall apply". The proviso to Section 387, therefore, shall stand controlled by the provisions contained in Sections 353(5) and 353(6) and, therefore, the subordinate appellate Court will be obliged to secure the presence of accused/appellant before it for pronouncement of judgment except in the cases wherein the judgment is of acquittal or one of fine only. Once the presence of appellant-accused is secured or the purpose of pronouncement of judgment confirming the conviction with substantive sentence, as: observed in the matter of Dilip v. State of Maharashtra (supra), the Subordinate Appellate Court would become functus officio and cannot suspend the sentence or grant bail in order to enable the accused to prefer revision before the High Court. The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision.

15. On reference to criminal manual of instructions issued by the High Court of Judicature, Appellate Side, Bombay, for the guidance of criminal Courts and officers subordinate to it, the same contains Form XV regarding "warrant to jailor, in the case of a prisoner at first released on bail pending the f disposal of appeal to the Appellate Court, but subsequently rearrested in Court on the dismissal of the appeal or reduction or alteration of sentence, and forwarded to jail to undergo the remaining portion of the sentence". The contents of the warrant clearly indicate that the warrant is to be issued by the Court confirming the conviction and accused appellant cannot be directed to surrender to the trial Court for issuance of conviction warrant.

 IN THE HIGH COURT OF BOMBAY

Cr. R.A. No. 57/2003

Decided On: 14.02.2003

Moinoddin Vs. State of Maharashtra

Hon'ble Judges/Coram:

N.V. Dabholkar, J.

Citation: 2003 LLJ BOM 2 1040, 2003 BLR 2 296, 2003 SCC ONLINE BOM 170, 2003 LLN 2 479, 2003 FLR 98 634,MANU/MH/0394/2003.

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Supreme Court: Under which circumstances, the appellate court can set aside conviction of accused in offence under S 201 of IPC without appeal of accused?

 However, we are of the view that the High Court clearly fell into error in affirming the conviction of the accused-respondent for the offence punishable under Section 201 of the IPC.

35. It is not in dispute that the accused-respondent has not preferred any appeal challenging his conviction for the said offence. However, the absence of an appeal by the accused-respondent does not, by itself, denude this Court of its appellate jurisdiction. In exercise of powers under Section 386 of the CrPC

[corresponding to Section 427 of the Bharatiya Nagarik Suraksha Sanhita, 2023], the appellate Court is vested with the power to examine the correctness of the findings and sentence recorded by the Court below and to reverse, alter or affirm the

same, as the interests of justice may require.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2026

(Arising out of SLP(Crl.) No(s). 8846 of 2025)

THE STATE OF ASSAM  Vs  MOINUL HAQUE @ MONU 

Mehta, J.

Dated: APRIL 16, 2026.

Read full judgment here: Click here.

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What Precautions Should a Sessions Judge Take While Passing Sentence After Conviction? A Practical BNSS Guide to Avoid Illegality

 Sentencing is not a routine tailpiece to conviction. Once guilt is recorded, the Sessions Judge enters a distinct judicial stage in which fairness, statutory discipline, and recorded reasons become critical; many otherwise sustainable convictions are exposed to appellate criticism because the sentencing part is casual, mechanical, or incomplete.

Under the Bharatiya Nagarik Suraksha Sanhita, 2023, the safest approach is to treat the process from conviction onward as a structured legal sequence: record a precise finding of guilt, hear the accused on sentence, consider aggravating and mitigating factors, examine previous conviction only in the manner permitted by law, apply probation and compensation provisions where relevant, stay within statutory sentencing limits, grant set-off, and complete all consequential formalities.

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Supreme Court: Sole testimony of child , if credible, can sustain conviction under Pocso Act even without corroboration.

None of the grounds, on which the High Court cleared the Respondent, had any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix had, thus, to be taken as a whole. The victim of rape is not an accomplice and her evidence can be acted upon without corroboration. The prosecutrix stood at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. The evidence brought on record contains positive proof, credible sequence of events and factual truth linking the Respondent with rape of the prosecutrix and had criminally intimidated her. Hence, Respondent was found to be guilty for offence Under Sections 376(2)(f) and 506 of Code, 1860 since he committed rape with a minor girl aged nine years. The judgment of the High Court was set aside and the conviction recorded by the Trial Court was restored. [31],[32] and[34]

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1231 of 2016 

Decided On: 15.12.2016

State of Himachal Pradesh Vs. Sanjay Kumar

Hon'ble Judges/Coram:

A.K. Sikri and Abhay Manohar Sapre, JJ.

Author: A.K. Sikri, J.

Citation: MANU/SC/1599/2016

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Supreme Court: Under which circumstances, the court can convict or acquit accused on the testimony of single witness?

The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.

Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.

Generally speaking, oral testimony in this context may be classified into three categories, namely :

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

15. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion.

It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.

There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.

Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 24 and 25 of 1957

Decided On: 12.04.1957

Vadivelu Thevar Vs. The State of Madras

Hon'ble Judges/Coram:

B. Jagannadhadas, B.P. Sinha and P.B. Gajendragadkar, JJ.

Author: B.P. Sinha, J.

Citation: AIR 1957 SC 614,MANU/SC/0039/1957

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J & K HC: CDRs Without Voice Evidence Insufficient To Connect Co-Accused in NDPS Case

  The only material that connects the petitioner to the

alleged crime that is left is the CDR which has been collected by

the investigating agency during the investigation of the case. As

per analysis of the CDR, it appears that the petitioner was in

touch with the co-accused during the relevant period. The

question arises as to whether the same would be sufficient to

prima facie hold that the petitioner guilty of having committed the offence for which he has been booked. In the opinion of this

Court, CDR details showing contact between the petitioner and

co-accused, without there being any voice recording relating to

conversation between them, may not be sufficient to convict the

petitioner for the offence for which he has been booked. {Para 15}

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Case No. Bail App No. 21/2025

Sareed Ahmed Ganie  Vs UOI and anr.

Coram: HON’BLE MR. JUSTICE SANJAY DHAR, 

Pronounced on: 18.10.2025.

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Bombay HC: What precaution the convicting court should take after suspending sentence of convict?

 Thus, the Cr.P.C. and BNSS have exhaustive provisions

for ensuring the presence of the accused including the convicted

accused so that the orders passed by the Trial Courts are

effective. In the present case, as can be seen the Appeal was filed

after a delay of 538 days. It was a long period. Till then, no steps

were taken either by the Trial Court or by the Police Officers in

committing the Applicant to the prison so that he served out the

sentence imposed on him. This is happening in many cases,

which needs to be avoided. Therefore, the Trial Courts will have

to follow a disciplined procedure so that this is not repeated and

the order of conviction and sentence passed by the Trial Court

could be given effect to. {Para 14}

15. In such a situation, when an order is passed u/s 389

(3) of Cr.P.C. (corresponding section 430 of BNSS), the Trial

Courts shall place the application on a particular date, after the

period for which the sentence is suspended in a case gets over,

for compliance. The Trial Courts shall specify that the bond shall

be executed for his appearance on that particular date. The

application u/s 389 of Cr.P.C. (corresponding section 430 of

BNSS) shall be placed on that date for compliance and unless

the Applicant in such case produces, the order of the Appellate

Court suspending the sentence for a further period, the Trial

Court shall take steps to issue conviction warrant for execution

of sentence u/s 418 of Cr.P.C. (corresponding section 458 of

BNSS); unless, the Applicant shows sufficient reasons for

extending that period for a reasonably sufficient time. 

16. If the Applicant is not present before the Court, then

the Trial Court can take recourse to section 89 of Cr.P.C.

(corresponding section 92 of BNSS) by issuing warrant for

breach of the bond. This procedure will ensure that the orders

passed granting bail post conviction for a limited period are not

misused by the convicted accused unless the sentence is

suspended by the Appellate Court. All these practices and

procedure can be based on the above provisions of Cr.P.C. and

the corresponding provisions from BNSS, which shall be

followed by the Trial Courts. Even the investigating agency has

a role to play. It is their duty to see that the convicted accused

undergoes his sentence. The investigation has to be taken to its

ultimate logical end.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

INTERIM APPLICATION NO.2746 OF 2025

IN

CRIMINAL APPEAL (ST) NO.15106 OF 2025

Rajendra Padmakar Tayade Vs The State of Maharashtra .

CORAM : SARANG V. KOTWAL, J.

DATE : 04th AUGUST, 2025

Citation: 2025:BHC-AS:34391

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Supreme Court: The court should suspend sentence under S 302 of IPC in exceptional circumstances

In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra,

(2002) 9 SCC 364] and Ramji Prasad v. Rattan Kumar Jaiswal

[Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9 SCC 366],

it was held by this Court that in cases involving

conviction under Section 302 IPC, it is only in

exceptional cases that the benefit of suspension of

sentence can be granted. In Vijay Kumar [Vijay Kumar v.

Narendra, (2002) 9 SCC 364], it was held that in

considering the prayer for bail in a case involving a

serious offence like murder punishable under Section

302IPC, the court should consider the relevant factors

like the nature of accusation made against the accused,

the manner in which the crime is alleged to have been

committed, the gravity of the offence, and the

desirability of releasing the accused on bail after they

have been convicted for committing the serious offence of

murder. {Para 31}

33. Bearing in mind the aforesaid principles of law, the

endeavour on the part of the court, therefore, should be

to see as to whether the case presented by the prosecution

and accepted by the trial court can be said to be a case

in which, ultimately the convict stands for fair chances

of acquittal. If the answer to the abovesaid question is

to be in the affirmative, as a necessary corollary, we

shall have to say that, if ultimately the convict appears

to be entitled to have an acquittal at the hands of this

Court, he should not be kept behind the bars for a pretty

long time till the conclusion of the appeal, which usually

takes very long for decision and disposal. However, while

undertaking the exercise to ascertain whether the convict

has fair chances of acquittal, what is to be looked into

is something palpable. To put it in other words, something

which is very apparent or gross on the face of the record,

on the basis of which, the court can arrive at a prima

facie satisfaction that the conviction may not be

sustainable. The appellate court should not reappreciate

the evidence at the stage of Section 389 CrPC and try to

pick up a few lacunae or loopholes here or there in the

case of the prosecution. Such would not be a correct

approach.”

Since these were cases of conviction under

Section 302 IPC, the initial presumption available to the

respondents - accused before conviction, would not be

available to them. The High Court could not have

suspended the sentence, re-appreciating the evidence at

the stage of Section 389 and trying to pick up a few

lacunae or loopholes here or there in the case of

prosecution. The reason that the Appeals were not likely

to be heard in near future also would not be a valid

ground for suspending the sentence of the respondents -

accused, who have been convicted for the serious offence

under Section 302, IPC. It is only in rare and

exceptional circumstances, the benefit of suspension of

sentence should be granted by the Appellate Court to the

accused convicted for the serious offence under section

302, IPC.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2000 OF 2025

BALRAM DANGI Vs VEER SINGH DANGI & ORS. 

Dated: 16TH APRIL, 2025.

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Supreme Court’s landmark judgment on the disqualification of convicted representatives in India

 The Supreme Court’s landmark judgment on the disqualification of convicted representatives in India came in the 2013 case of Lily Thomas v. Union of India. This ruling fundamentally changed the legal landscape regarding when and how Members of Parliament (MPs), Members of the Legislative Assembly (MLAs), and Members of Legislative Councils (MLCs) lose their seats upon conviction for criminal offenses.

Key Points from the Supreme Court Judgment (Lily Thomas Case, 2013):

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Gauhati HC Extends Benefit Of Probation of offenders Act To Man Convicted U/S 498A IPC, Says Offence Was Not Heinous

 It is by now well settled that Act, 1958 is a milestone in progress of modern liberal trend of reform in the field of Penology. It is the result of recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. It was also held by Hon’ble Apex Court in the case of Ved Prakash Vs. State of Haryana reported in 1981 1 SCC 447, that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial court should collect material necessary to award a just punishment in circumstances. It was further held that the social background and the personal factors of the crime doer are very relevant in this regard. {Para 7}

8. In the case of Sita Ram Paswan Vs. State of Bihar reported in AIR 2005 SC 3534, the Hon’ble Apex Court has laid down certain principle for exercise of discretionary power under the Act and the consideration required. The Hon’ble Apex Court opined that while exercising the discretionary power under the Act 1958, the courts are to consider the circumstances of the case, the nature of offence and the character of the offender. While considering the nature of the offence, the court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. It was concluded by the Hon’ble Apex Court that the benefit available to the accused under section 4 of the Act, 1958 is subject to the Limitation embodied in the provision and the word ‘may’ clearly indicates that the discretion is vested with the court whether to release the offender in exercise of power under section 3/4 of the Act, 1958, having regard to the nature of the offence, the character of the offender and overall circumstances of the case.

9. It was further held by the Hon’ble Apex Court that such power can be exercised by the court even at the appellate or revisional stage or also by Apex Court hearing appeal under Article 136 of the Constitution of India.

10. Now, in the backdrop of the aforesaid settled proposition of law, let this court consider the arguments advanced by the learned counsel for the parties.

11. In the case in hand, the offence was committed on 11.02.2008. The nature of offence cannot also be said to be heinous in the given circumstances of the present case. The victim and the accused have got remarried as recorded hereinabove. The accused has also offered the Mohr, paid the maintenance awarded, the wife had also withdrawn the maintenance case and in view of the aforesaid, in the considered opinion of this Court that this is a fit case where the benefit of provisions of the Probation of Offenders Act, 1958 should be given to the accused petitioner by this court in exercise of its revisonal power.

 THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Rev.P./331/2013

MD. BADRUT ZAMAN Vs  THE STATE OF ASSAM

BEFORE

HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

Date of Judgement : 19.12.2024.

Citation:  2024:GAU-AS:12939.

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Bombay HC: The appellate court while confirming the conviction is also expected to get satisfied on the adequacy and sufficiency of sentence awarded by trial court

To sum up, for above reasons, only charge of Section 498-A IPC stands proved but only against surviving appellant father-in-law. Learned trial court has sentenced him under Section 498-A IPC to suffer imprisonment for two years. However, as stated above, only allegation which stand substantiated is regarding beating. For his such act, sentence of two years appears to be on higher side. In view of the judgment of the Hon'ble Apex Court in Suo-Motu Writ Petition (C) No. 3 of 2023 in the case of Right to Privacy of adolescents with Criminal Appeal No. 1451 of 2024, the appellate court while confirming the conviction is also expected to get satisfied on the adequacy and sufficiency of sentence awarded by trial court. {Para 29}

30. Learned counsel submitted that appellant is over 70 years of age. On visiting the impugned judgment passed by the Sessions Court, it is evidence that at that time appellant was 57 years of age, and hence there is reason to hold that as on today, he is more than 70 years old. Therefore, in view of above discussion and also taking into account that the episode in question had taken place almost two decades back and appellant as on today is reported to be over 70 years of age, keeping in mind the sentencing policy that sentence should commensurate with the gravity of the act, the sentence from two years is required to be scaled down.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 615 of 2005

Decided On: 28.11.2024

Prabhakar and Ors. Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Abhay S. Waghwase, J.

 Citation: 2024:BHC-AUG:27774, MANU/MH/7154/2024.

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What facts are to be proved for convicting an accused for an offence U/S 306 of IPC for abetment of suicide?

 To secure a conviction under Section 306 of the Indian Penal Code (IPC), which pertains to the abetment of suicide, the prosecution must establish several critical elements. Below are the essential facts required for conviction, along with relevant judicial precedents.

Key Elements for Conviction Under Section 306 IPC

The following elements must be proven:

- Abetment: The accused must have actively abetted, aided, or instigated the deceased to commit suicide. This can include actions that create a situation compelling the victim to take their own life.

- Mens Rea: There must be a clear intention (mens rea) on the part of the accused to instigate or aid in the act of suicide. This means that the accused's actions should demonstrate a deliberate intention to push the deceased towards committing suicide.

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What facts are to be proved for convicting an accused for an offence U/S 353 of IPC?

 To convict an accused under Section 353 of the Indian Penal Code (IPC), which pertains to assault or criminal force against a public servant in the discharge of their duties, certain fundamental facts must be established. Here’s a detailed explanation of the essential elements required for conviction.

Key Elements for Conviction Under Section 353 IPC

The prosecution must prove the following essential elements:

- Assault or Criminal Force: There must be an act that constitutes an assault or the use of criminal force. According to Section 351 of the IPC, assault involves gestures or preparations that create a reasonable apprehension of imminent use of criminal force. Criminal force, as defined in Section 350, refers to the intentional use of force without consent, which is likely to cause injury, fear, or annoyance.

- Public Servant: The victim must be a public servant as defined under Section 21 of the IPC. This includes any person holding an office by virtue of which they are authorized to perform public duties.

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Supreme Court: High Courts Can't Convert Order Of Acquittal To Conviction Under Revision Jurisdiction U/S 401 of CRPC

The learned counsel for the appellant would firstly submit that the High Court has limited power of Revision under Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C’). More importantly, under sub-section (3) of Section 401, the High Court is not competent to convert a finding of acquittal into one of conviction. {Para 4}

6. The sub-section (3) of Section 401 of the Cr.P.C. clearly says that the High Court does not have the authority to convert a finding of acquittal into one of conviction while exercising its Revisional power. But that precisely was done by the High Court under the impugned judgment dated 19.01.2023.

7. The impugned decision of the High Court is therefore found to be unsustainable. If the High Court was convinced about a wrongful acquittal, the High Court in Revision could not have ordered for conviction. It ought to have remitted the matter back to the appellate court to re-appreciate the matter. This course was not adopted.

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

C.N. SHANTHA KUMAR Vs  M.S. SRINIVAS 

Dated: SEPTEMBER 02, 2024.

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Supreme Court: Under which circumstances the appellate court can reduce sentence given for conviction U/S 279,338 and 304A of IPC?

 The main charge against the appellant is about causing death

by rash and negligent driving of the mini Lorry which resulted in

the death of the pillion rider of the motorcycle. For conviction

under Section 304(A) and Section 338 of the IPC, there is no

minimum sentence prescribed but the term of sentence may extend to 2 years. The sentence can also be limited to fine without any term of imprisonment. For the offence under Sections 279 and 337 of the IPC, the maximum punishment prescribed is 6 months and punishment can also be fine only.

{Para 10}

12. A three-Judges Bench of this Court, on 30.06.2021, while

considering the case of negligent driving by a bus driver in

Surendran v. Sub-Inspector of Police, 2021 17 SCC 799, ordered for substitution of sentence, for the conviction under Sections 279 and 338 of the IPC, to fine only. The Court took into account that the accident had happened over 26 years ago and the concerned accused was on bail throughout the trial.

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

GEORGE  Vs STATE OF KERALA .

Dated: SEPTEMBER 03, 2024.

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Whether the court can convict accused in pocso case if victim and her family members have turned hostile?

 • Law on the point of hostile witness

7. The principle on the point of considering the part of testimony of hostile witness comes into picture only when Court can separate:-

(a) the part which is deposed by the witness in favour of the prosecution and;

(b) the part which is not deposed in favour of the prosecution.

8. Furthermore, this principle will not come into picture, if the prosecution witness has totally resiled and not deposed a single fact thereby either implicating the accused or showing some connection with the accused. For e.g.- if the first informant/victim only admits signature on FIR but does not depose single fact in favour of the prosecution, then how the 'law on the point of hostile witness' will come into picture. Trial Court has not at all gone into all these issues and erroneously concluded about the guilt of the accused. I will deal with this principle vis-a-vis facts in latter part of my judgment.

• About view of this Court on hostile witness

36. As said above, when the evidence of hostile witness is appreciated, there are various angles. They can be summarized as follows :--

• Types of hostile witnesses

a. A witness has turned total hostile mean to say that he has not deposed single fact in chief examination appearing in previous police statement.

b. A witness has deposed few facts only but omitted to depose remaining facts as per his police statement.

c. A witness has not deposed a single fact but when he is cross examined by A.P.P. in charge, then he has admitted to suggestive questions put to him.

d. A witness has supported the prosecution case in its entirety but he has given answers damaging the earlier answers, when he is cross-examined on behalf of the defence.

37. If such are the possibilities faced by the criminal court, how one can make general proposition that 'evidence of hostile witness cannot be brushed aside totally'?. Ultimately it depends upon the extent of resiling from previous statement while giving evidence before the Court. The law laid down by Hon'ble Supreme Court on the point of 'evidentiary value to be attached to testimony of hostile witness' need to be applied on the set of facts and circumstances of each case.

38. On this background, it needs to be ascertained whether the trial court has assessed the evidence adduced before it properly. When the four witnesses including victim and her relatives have resiled from their previous statement and they were cross examined by the local prosecutor, the facts deposed by them can be summarized as follows :--

39. From the above reproduced references, what inference can be drawn? If we perused all the testimonies, one fact is very clear and that is-- all the witnesses have decided not to depose the facts stated by them before the police/Magistrate. Because otherwise why the police/Magistrate will mention all the facts in their statements unless those facts were stated to them. There is no reason for the police/Magistrate to state those facts on their own. But the question is will it be sufficient to convict the accused ? The Hon'ble Supreme Court has opined to apply the test of deciphering the facts supporting the prosecution case from the total facts deposed by the hostile witness. But what is important is after deciphering those facts, ultimately the Court has to consider what remains and how much weightage can be attached to those facts. The Court has to assess 'what inferences can be drawn'. So it will be unjustified to consider those facts and to convict the accused, without assessing its evidentiary value.

Whereas in the case involved in this appeal, the victim and her uncle eye witness have totally resiled from their version before the police. There is reason to believe that these witnesses do not want to depose before the Court the incidents narrated by them to the police. Though medical case papers are admitted, there has to be link between the medical findings and author of crime being the Appellant.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

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Whether the court can convict accused based on evidence of Judicial Magistrate who recorded statement of victim U/S 164 of CRPC if victim has turned hostile?

Even Supreme Court in case of Brij Nath Sah v. State of Bihar MANU/SC/0344/2010 : 2010:INSC:255 : (2010) 6 SCC 736 has reiterated same principles. The Hon'ble Apex Court has held that a statement under Section 164 is not substantive evidence and can be utilized only to corroborate or contradict the witness vis-a-vis statement made in court. {Para 68}

 70. Trial Court was wrong in convicting the Appellant by taking recourse to statement under Section 164 of the Criminal Procedure Code. On the basis of the evidence of the learned Magistrate and the medical evidence, statement recorded under Section 164 of the Code can be treated as previous statement only. 

71. So if we look at the weightage and value of evidence of judicial officer from all the angles, we may find that his evidence cannot be said direct on the point of happening of the incident. Because he is not giving the evidence on the basis of facts seen by him. His evidence is on the point of what he has heard through the mouth of the victim.

72. So for what purpose this provision is included in the Code. The mechanism created by the Code is investigation carried out by the police including recording the statement of the witnesses. Recording statement through the Magistrate is also a part of investigation. Such statement stands on higher pedestal than the police statement. Still we can not attach more value than recognized by the law. Such statement falls within the category of 'previous statement' only. Its use is permissible in the mode prescribed in the Evidence Act only.

73. Does it mean to say that this statement can be the basis for conviction just because it is recorded by judicial official and oath is administered? Answer is 'No'. The reason is this statement is not recorded in the presence of the accused and there is no opportunity of the cross-examination to the maker of the statement when such statement is recorded by the Magistrate. So ultimately, when Magistrate gives evidence, his evidence is not the evidence about the witnessing the incident but it is evidence of facts stated before him by the victim.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

Read full Judgment here: Click here.

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Under which circumstances the court can not convict accused based on presumption under Section 29 of POCSO Act?

 Similar question was posed before Learned Single Judge of this Court in case of Ramprasad v/s State of Maharashtra MANU/MH/1943/2018. Learned Single Judge was dealing with an appeal filed by the convicted accused. While interpreting the nature of presumption under Section 29 of the said Act, it is observed :--

" Thus the presumption that operates under Section 29 of the Protection of Children from Sexual Offences Act is not absolute and it is triggered only when the prosecution is able to prove the foundational facts in the first place. The evidence placed on record by the prosecution is to be examined to first come to the conclusion that the foundational facts of the prosecution case have been established " (para 29).{Para 85}

86. On facts it was observed :--

" In fact for the presumption to operate, as observed earlier, it is necessary that the foundational facts are established by the prosecution, which in the present case, does not appear to have been done by the prosecution " (para 27)

• Conclusion

88. In nutshell, the trial court simply cannot be convict the accused on the basis of the presumption. Because the Court cannot start with only on the basis of the presumption. However presumption will come into picture only when foundational facts are established. That is to say, age of the victim, either of the acts prescribed under Sections 3, 5, 7 and 9 of the POCSO Act are committed. One may not find such wordings in the section itself. But the Constitutional Courts have interpreted similar provisions relating 'presumptions' en-grafted in various Acts. This interpretation of the provisions of relevant Acts is arrived at after considering those provisions of Acts on one hand and presumption of innocence on the other hand. It is interpreted presumption of innocence is human right though not a fundamental right.

89. In this case, foundational facts are not proved. I have already observed the evidence on the basis of statement under Section 164 of the Code can not be considered. So also on the basis of admitted medical case papers, we cannot draw an inference about involvement of the culprit/accused. Hence trial court was wrong in taking recourse to the presumption under Section 29 of the Protection of Children from Sexual Offences Act.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

Read full Judgment here: Click here.

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