Criminal appeal – Conviction and sentence – Challenge against – Appellant convicted for offenses under Sections 366 and 376 of the Ranbir Penal Code – Sentence of rigorous imprisonment imposed – Appellant challenges the Judgment of Conviction and Order of Sentence – Various grounds raised, including delay in lodging the FIR, lack of medical evidence, non-examination of crucial witnesses, contradictions in witness statements, defects in the recording of the accused’s statement, reliance on surmises and conjectures, manipulation of evidence, failure to meet the necessary standards for conviction, lack of independent witnesses, insufficiency of evidence, and non-disposal of an application for summoning a doctor – Appellant argues that he was falsely implicated, and the prosecutrix went with him willingly due to their intention to marry – Government advocate argues that the prosecutrix was forcibly kidnapped and confined by the appellant – Court examines the arguments and evidence presented.

Sole statement of prosecutrix – Reliance on – Trial court convicted appellant based solely on the statement of the prosecutrix – Appellate court finds that the statement is unnatural, improbable, and lacks credibility – Prosecution failed to corroborate the statement with medical evidence or examination of crucial witnesses – Non-examination of the doctor and investigating officer prejudiced the case of both the appellant and the prosecution – Court refers to a Supreme Court decision emphasizing the importance of examining crucial witnesses – Court concludes that the trial court misdirected itself in convicting the appellant based solely on the prosecutrix’s statement. [Para 15-22]

Delay in lodging FIR – Unexplained delay of six days in lodging the FIR – Delay deemed fatal to the prosecution’s case – Lack of explanation raises doubts about the veracity of the allegations – Court considers the delay as an additional factor supporting the appellant’s claim of false implication. [Para 19]

Willingness of prosecutrix – Prosecutrix traveled willingly with the appellant and stayed at the house of his sister without protest – No evidence of force or compulsion – Prosecutrix’s statement suggests that she went with the appellant intending to marry him – Court concludes that offenses of rape and kidnapping were not constituted in this situation. [Para 12-14, 20-21]

Lack of medical evidence – Prosecutrix examined by a doctor who found no evidence of recent sexual intercourse – Prosecution withheld the doctor as a witness – Non-examination of the doctor prejudiced both the appellant and the prosecution – Court notes that the medical evidence contradicts the prosecutrix’s statement. [Para 16]

Conclusion – Appeal allowed – Judgment of Conviction and Order of Sentence set aside – Appellant acquitted of charges under Sections 366 and 376 of the Ranbir Penal Code – Bail and personal bonds discharged – Seized articles to be destroyed – Trial court records to be sent down for information. [Para 22]

Maintenance - Wife and Child - Adulterous Relationship - DNA Test - Adverse Inference: In a criminal revision case (CRIMINAL REVISION No.777 of 2016), heard by Honorable Mr. Justice Dr. Anshuman in the High Court of Judicature at Patna, the petitioner challenged an order passed by the Principal Judge, Family Court, Gaya. The order directed the petitioner to pay maintenance allowances to his wife (opposite party No. 1) and child (opposite party No. 2) under Section 125 of the Cr.P.C. The petitioner contended that the child was not his biological child and requested a DNA test. The court observed that the wife initially agreed but later refused to undergo the DNA test. The court held that while an adverse inference could be drawn against the wife for refusing the test, it could not conclusively establish her alleged adulterous relationship without the DNA test results. (Para 7)

Entitlement to Maintenance - Wife's Claim: The court noted that it was established from the pleadings and evidence that the petitioner and opposite party No. 1 were husband and wife, and under Section 125 of the Cr.P.C., a wife is entitled to maintenance from her husband. Therefore, the court held that the wife was entitled to maintenance. (Para 10)

Maintenance Amount and Duration: The court acknowledged that the order was passed in 2017, and considering the present year (2023), the maintenance amount of Rs. 6,000/- per month was reasonable and not subject to interference. However, since the child (opposite party No. 2) was not ready for the DNA test, the court set aside the maintenance allowance of Rs. 2,000/- per month granted to the child. (Para 12)

Decision: Honorable Mr. Justice Dr. Anshuman partly allowed and partly dismissed the criminal revision application. The court upheld the maintenance allowance of Rs. 6,000/- per month for the wife but set aside the maintenance allowance of Rs. 2,000/- per month for the child, based on the adverse inference drawn from the refusal to undergo a DNA test. (Para 13)

Criminal case against government servant - Pendency - Promotion - Ad hoc or regular - Whether grant of promotion permissible during pendency of criminal case against government servant - Departmental proceedings exonerating employee - Held, no right of government servant to be considered for promotion during pendency of departmental or criminal proceedings - Equitable solution of granting ad hoc promotion not supported by law - Notional benefits and pension to be calculated upon exoneration in both departmental and criminal proceedings.

Office Memoranda (OMs) and Notifications - Government of Odisha - Promotion during pendency of criminal case - Non-permissibility - Various OMs and Notifications do not allow or envisage promotions during pendency of criminal cases involving government servants.

Acquittal and exoneration - Notional benefits - Calculation of pension - If government servant is acquitted in criminal proceedings and exonerated in departmental proceedings, notional benefits of promotion to be calculated and pension fixed accordingly.

Expedited proceedings - Request to criminal courts - Parties to request criminal courts to expedite proceedings and bring trials to early conclusion.

Bail - Grant of - Factors to consider - Nature of allegations, criminal antecedents, opportunity to course-correct - Balancing personal freedom and police investigation - Discretion of the court - Strict conditions to prevent influencing investigation, tampering with evidence, or fleeing justice - Prima facie case and reasons for release on bail - Possibility of deprivation of rights and liberties - Proportional and balanced conditions. (Para 5, 6, 7, 8, 9, 10, 11, 12, 16)

Conditions of bail - Options of surety bonds or fixed deposits - Choice of the accused - Disclosure of financial details - Compliance with conditions - Cooperation with investigation - Non-influence of witnesses or tampering with evidence. (Para 11, 14)

Modification of bail conditions - Application for reduction of bond amount or modification of terms - Competency of the court to modify or delete conditions causing difficulty or violating rights. (Para 18)

Continuation of investigation - No limitation or restriction on police or investigating agency from further investigation as per law. (Para 19)

Communication of bail order - Copy of order to be provided to complainant and victim - Reporting any violation to concerned authorities. (Para 23)

Authenticity of order - Attested copy by advocate - Downloading from official web page - Verification by attesting officer if required. (Para 24)

Disposal of pending applications - All pending applications stand disposed.

Criminal Procedure – Regular Bail – Lengthy Custody – Second petition for regular bail under Section 439 Cr.P.C. The petitioner was found in possession of 265 grams of Tramadol (commercial quantity) and a firearm with live cartridges. He has been in custody for 40 months, and the trial is at a nascent stage. Held, despite the petitioner’s involvement in multiple criminal cases, his prolonged custody and the early stage of the trial warrant bail. The petition is allowed, and bail is granted. [Para 6]

Criminal Antecedents – Bail Considerations – The petitioner has 12 criminal cases against him, with acquittals in five IPC cases and convictions in two. No recovery was made from him in the NDPS case, and he is on bail in that matter. Held, based on the Supreme Court judgments in Dheeraj Kumar Shukla and Chet Ram @ Ram Veer cases, and considering the prolonged custody, the petitioner deserves bail. [Paras 6-7]

Decision:

Petition allowed. The petitioner is ordered to be released on bail, subject to furnishing heavy bail/surety bonds to the satisfaction of the Trial Court/Duty Magistrate. The petitioner must furnish an undertaking that he will not engage in any criminal activity during the pendency of the trial and report to the police station monthly. Violation of any conditions will allow the State to seek cancellation of bail. [Paras 7-9]

Civil Procedure – Interim Injunction – Use of Property – Petitioners-defendants challenged the orders restraining them from using a building in their possession until they paid an agreed sum to the respondents-plaintiffs. Held, restraining the use of the building through an interim order amounts to granting the main relief sought in the suit. The main relief cannot be extended as an interim relief. The trial court is free to grant compensation for unauthorized use at the end of the trial if it finds the defendants used the building without authorization. The impugned orders were modified, allowing the petitioners-defendants to use the portion of the building in their possession, subject to the final trial court order. [Para 8]

Principle of Main Relief in Interim Orders – The courts below erred by restraining the defendants from using the building through an interim application, effectively granting the main relief sought in the suit. Held, it is a settled legal principle that the main relief cannot be granted as interim relief. The courts can compensate for unauthorized use if proven at trial. [Paras 8-9]

Decision: Revision petition allowed. The impugned orders were modified to permit the petitioners-defendants to use the portion of the building in their possession, subject to the final trial court decision on authorization and potential compensation. [Para 10]

Constitutional Law – Right to Privacy – Whether the right to privacy is absolute - Apex Court has held that the right to privacy, as enshrined under Article 21 of the Constitution of India, is not an absolute right and is subject to reasonable restrictions when legitimate public interest is involved - K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1, followed.

Hindu Marriage Act, 1955 – Section 13(1)(i-a) – Adultery – Production of records – Whether a wife has a right to seek call records and details of the room where her husband was staying during a specific period - Held, the right to privacy is not an absolute right and in case of a conflict between fundamental rights of two parties, the right which would advance the public morality or public interest, would alone be enforced through the process of court - Hospital Z v. State of Gujarat, (2004) 4 SCC 158, followed - In this case, the respondent has raised a specific plea of adultery against the petitioner and has sought only specific information regarding the details of the room where her husband was staying during a specific period as also his call records alone - Therefore, the right of the respondent to seek production of records prevails over the right to privacy of the petitioner - Held further, the decision in Surjit Singh v. Santosh Kumari, AIR 2005 P&H 34, Vishwas Shetty v. State of Karnataka, (2018) 5 SCC 1 and Sangeeta v. Kishore, 2007 SCC OnLine Bom 1165, distinguished - Petition dismissed - Para 39, 41-43.

Family Courts Act, 1984 – Section 14 – Adultery – Production of records – Whether a wife has a right to seek call records and details of the room where her husband was staying during a specific period - Held, Section 14 of the Family Courts Act empowers the Family Court to lay down its own procedure - In this case, the learned Family Court by way of the impugned orders has sought records which pertain only to the respondent’s husband and not to his friend or her daughter - Therefore, there is no question of their right of privacy being violated in any manner - Para 41.

Adultery – Production of records – Whether a wife has a right to seek call records and details of the room where her husband was staying during a specific period - Held, the stage to determine the sufficiency of evidence is yet to arrive - Sangeeta v. Kishore, 2007 SCC OnLine Bom 1165, distinguished - Para 43.

Constitutional Law – Right to Privacy – Freedom to have a consensual sexual relationship outside marriage – Whether the freedom to have a consensual sexual relationship outside marriage by a married person warrants protection under Article 21 of the Constitution of India – Held, the freedom to have a consensual sexual relationship outside marriage by a married person does not warrant protection under Article 21 of the Constitution of India - Joseph Shine v. Union of India, (2018) 10 SCC 1, followed - Para 38.

Bail application - Rejection - Charges under Sections 376AB of IPC and Section 5m/6 of POCSO Act - Allegation of rape on a 7-year-old victim - Applicant falsely implicated - Medical examination report does not support prosecution's allegations - Intact hymen and no injuries found on victim's body - Court cites medical jurisprudence to establish that complete penetration, ejaculation, or hymen rupture not necessary for rape - Previous judgments emphasize reliability of victim's testimony and discourage requirement of corroboration in sexual assault cases - Seriousness of sexual crimes against women and children - Need for stern and severe punishment - Chargesheet carries minimum sentence of 20 years - Presumption under POCSO Act applicable - Bail application rejected. (Para 16-17)

1. Criminal Law - Revision - Concurrent finding of conviction - Petitioner convicted under Sections 304-A IPC - Appeal dismissed - Revision against the concurrent finding of conviction - Petitioner acquitted based on the defense's version being highly probable - Benefit of doubt given to the accused. [Para 13]

2. Criminal Law - Evidence - Eyewitness testimony - Analysis of statements - Site plan - Inconsistencies in prosecution witnesses' version - Highly improbable accident scenario presented by prosecution witnesses - Defense version supported by independent witnesses - Defense's version considered highly probable - Testimony of defense witnesses found reliable - Acquittal of accused warranted. [Para 9, 10, 12]

3. Criminal Law - Duty of Court - Analyzing prosecution and defense witnesses - Equality in assessing testimonies - Benefit of doubt - Court duty-bound to analyze statements of both sides on equal parameters to judge their truthfulness - Benefit of doubt to be given to accused when defense's version is highly probable and supported by independent witnesses. [Para 11]