Rape – Conviction and Sentence – Section 376 IPC – Appellant convicted and sentenced to 7 years R.I. – Conviction Upheld – Sentence Reduced – The prosecutrix’s testimony was consistent and supported by other witnesses – Minor discrepancies in the statements did not discredit the prosecution’s case – The absence of injuries on the prosecutrix did not negate the occurrence of rape – Considering the age of the appellant, passage of time (27 years since the incident), and lack of criminal antecedents, the sentence was reduced from 7 years to 4 years R.I. [Paras 10-28].

Evidence of Prosecutrix – No Corroboration Required – Held: The testimony of the prosecutrix in rape cases is sufficient to sustain a conviction, even in the absence of corroboration, if it inspires confidence – The prosecutrix had no motive to falsely implicate the appellant – The minor contradictions in her statement did not affect the reliability of her testimony [Paras 19-23].

Enmity – Double-Edged Sword – The appellant’s plea of false implication due to enmity was rejected – The Court observed that enmity provides both motive for the crime and the possibility of false implication, but the evidence supported the prosecution’s case [Paras 14-15].

Sentencing – Reduction of Sentence – Adequate and Special Reasons – The Court exercised its discretion under the proviso to Section 376(1) of IPC to reduce the sentence, considering the long passage of time, age of the appellant, and lack of prior criminal record – Sentence reduced from 7 years to 4 years R.I. with an enhanced fine of Rs.50,000/- [Paras 26-28].

Decision: The conviction of the appellant under Section 376 IPC was upheld. However, the sentence was reduced from 7 years to 4 years R.I., with an enhanced fine of Rs.50,000/-. In case of default in payment of the fine, the appellant would undergo an additional 3 months of Simple Imprisonment.

Condonation of Delay – Criminal Appeal – Section 21 of NIA Act – Appellant sought condonation of a delay of 186 days in filing the appeal against the rejection of bail – The delay was attributed to the appellant's financial inability to engage counsel in time – Held: Relying on judicial precedents, the right to appeal is fundamental to personal liberty under Article 21 of the Constitution, and the delay was not deliberate – Delay condoned [Paras 1, 2].

Criminal Law – Bail under UAPA – Section 439 Cr.P.C. – Appellant was charged under the UAPA and other related laws for allegedly aiding the transport of arms and ammunition – The charges were based solely on the statement of a co-accused, with no recovery or independent evidence linking the appellant to the crime – Held: The stringent provisions of the UAPA require prima facie evidence of the appellant's involvement, which was absent in this case – Bail granted due to lack of material evidence and the appellant’s prolonged incarceration for over 1 year and 11 months [Paras 7, 9].

Judicial Review – No Recovery or Independent Evidence – The State opposed bail, citing the co-accused’s statement – However, there was no recovery from the appellant, and no call records or other evidence supported his involvement – Held: In the absence of corroborating evidence, the appellant cannot be denied bail under UAPA, and his continued detention was unjustified [Paras 5-7].

Decision: Appeal allowed – The impugned order dated 20.06.2023 passed by the Additional Sessions Judge, Moga, is set aside – Appellant granted regular bail upon furnishing bonds to the satisfaction of the trial court – Observations are confined to the bail proceedings and will not affect the merits of the case [Paras 9-10].

Guardianship and Custody – Jurisdiction Based on Minor's Ordinary Residence – Application Returned - The appellant sought custody of her minor daughters, invoking Muslim Personal Law, where the mother has deemed custody of a minor girl until she attains puberty. The Family Court dismissed the petition for lack of jurisdiction, holding that the minors were residing with their father in Poonch, and not with the mother in Jammu. The High Court upheld this ruling, reiterating that under Section 9 of the Guardian and Wards Act, the jurisdiction lies with the court where the minors ordinarily reside, regardless of the mother's custody under personal law. [Paras 1-10].

Residence of Minor vs. Natural Guardian – Determination of Jurisdiction - The court emphasized that the minor’s ordinary residence is distinct from the residence of the natural guardian, and temporary residence elsewhere does not affect the jurisdiction. The appellant's argument that the minors should be deemed to reside with her under Muslim law was rejected as it did not align with the statutory framework of the Guardian and Wards Act. [Paras 7-9].

Decision: The appeal was dismissed, and the Family Court’s decision to return the application for presentation before the proper court was upheld. [Para 10].

Cheque Dishonour – Section 138 of the NI Act – Quashing of Proceedings – Petition Dismissed – Petitioner sought quashing of criminal proceedings for cheque dishonour under Section 138 of the NI Act, contending that the cheque was issued as part of a housing loan agreement, and unauthorized amounts were withdrawn from his account by the respondent. The petitioner argued that the cheque was dishonoured due to a breach of trust and collusion by the bank manager. Held: The petitioner's arguments based on statements recorded under Section 161 CrPC had no merit, as such statements hold limited evidentiary value. The jurisdiction under Section 482 CrPC cannot be invoked to quash proceedings under a special statute like the NI Act without compelling evidence of misuse of process [Paras 9, 10, 11].

Statements under Section 161 CrPC – Limited Evidentiary Value – No Ground for Quashing – The petitioner relied on statements recorded under Section 161 CrPC during police inquiry to claim that no offence under Section 138 NI Act was made out. Held: Statements under Section 161 CrPC are not substantive evidence and cannot be the sole basis for quashing proceedings under Section 138 of the NI Act. The Court reiterated that these statements can be used only for contradiction purposes during trial [Paras 7, 9].

Special Code – NI Act Provisions Override CrPC – The High Court affirmed that the Negotiable Instruments Act, being a special statute, overrides provisions of the CrPC. The special code for cheque dishonour cases under Sections 142 to 147 of the NI Act aims to expedite trials and prevent delay, thereby limiting the scope of Section 482 CrPC in such matters [Paras 8, 10].

Decision: The petition under Section 482 CrPC was dismissed, and the proceedings under Section 138 of the NI Act were upheld. The Court found no grounds for interference, as the petitioner failed to present any compelling evidence of abuse of process. The trial was directed to continue in the JMFC, Aron District Guna, without further delay [Paras 10-11].

Criminal Law – Murder – Conviction Upheld - Dying Declaration – Admissibility and Evidentiary Value – The conviction was primarily based on the dying declaration of the deceased, Munish Kumar, implicating the appellant for stabbing him. The appellant questioned the reliability of the dying declaration on the grounds that the doctor who declared the deceased fit to make a statement was not examined – Held: The Investigating Officer's testimony and the circumstances surrounding the declaration confirmed its validity. The dying declaration was corroborated by other evidence and was held to be credible and admissible [Paras 15-19].

Recovery of Weapon – Corroboration of Guilt – The appellant's conviction was further supported by the recovery of the weapon (knife) used in the crime, which was recovered pursuant to the appellant’s disclosure statement – Held: The recovery was made in accordance with the law, and no evidence suggested that the recovery was planted or fabricated. The recovery of the weapon corroborated the dying declaration and medical evidence [Paras 20-24].

Medical Evidence – Consistency with Injuries – The post-mortem report and the medical examination of the deceased revealed injuries consistent with the use of a knife. The Court noted that the injuries matched those described in the dying declaration and confirmed by the recovered weapon – Held: The medical evidence strongly supported the prosecution's case and linked the appellant to the crime [Paras 40-43].

Appeal Dismissed – The appellant's contentions regarding false implication and misappreciation of evidence were rejected. The Court found no merit in the appeal and upheld the conviction and sentence imposed by the trial court – Held: The life sentence awarded under Section 302 IPC was affirmed, and the appeal was dismissed [Paras 47].

Decision: The appeal is dismissed. The conviction and life sentence awarded to the appellant by the trial court are upheld.

Section 138 N.I. Act - Forensic Examination – Application for Further Examination Denied - The petitioner, accused under Section 138 of the NI Act, sought to send the disputed cheques for a second forensic examination by the Central Forensic Science Laboratory after receiving an unfavorable report from the State Forensic Science Laboratory. The Court upheld the Magistrate's decision, rejecting the request as an attempt to delay the trial. It was held that repeated requests for expert examination without justification could not be entertained [Paras 9-12].

Summoning Private Expert – Application Dismissed – Evidence Not Substantive - The petitioner also sought to summon a private handwriting expert to testify regarding the signature on the cheques. The Court ruled that the opinion of a private expert, especially when obtained without court intervention, is not substantive evidence and thus the Magistrate was justified in declining to issue summons to the private expert [Paras 13-14].

Request for Document Production – Dismissed Due to Irrelevance - The petitioner requested the production of certain documents related to chit transactions. The Court held that the documents were irrelevant to the defense of discharge since the petitioner had already admitted to receiving the chit amount. The Magistrate's decision to deny the production request was upheld [Paras 15-16].

Final Decision – Petition Dismissed – Delay Tactics Not Permitted - The High Court dismissed the petitions, noting that the petitioner’s actions were aimed at delaying the trial. The trial court was directed to expedite the disposal of the case without further delays [Paras 17-19].
 

SARFAESI Act – Priority of Secured Creditor – Section 26E of SARFAESI Act – Charge Overridden – The petitioner bank, as a secured creditor, sold the mortgaged property of respondent no.3 through a public auction under the SARFAESI Act – The auction purchaser faced difficulties in registering the conveyance deed due to a charge recorded by the State of Gujarat for outstanding VAT dues – Held: Under Section 26E of the SARFAESI Act, the petitioner bank’s secured charge has priority over the State’s tax dues recorded under Section 48 of the VAT Act – The State’s charge is subordinate to the bank’s secured charge [Paras 6-9].

Non-Obstante Clause of Section 26E – Overriding Effect – Section 26E of the SARFAESI Act provides that debts due to secured creditors take precedence over all other debts, including taxes due to the State – The High Court emphasized that this section has an overriding effect, thereby nullifying any charge created by the State after the registration of the secured interest [Para 7].

Relief Granted – Attachment Quashed – The Court held that the attachment order and charge recorded in the revenue records by the State under the VAT Act are quashed and set aside – The bank’s right to recover its secured debts prevails over the State’s VAT dues – The State is granted liberty to initiate recovery of its dues following the proper legal process [Paras 9-10].

Decision:

The petition is allowed – The attachment order and charge recorded by the State under Entry No.1749 in the revenue records is quashed – The petitioner bank has priority over the secured property under Section 26E of the SARFAESI Act – Rule made absolute [Paras 10-11].

Service Law – Recovery Orders – Quashing Sought – Petitioner, a retired Sub Divisional Officer, challenged recovery orders of ₹3,174/- and ₹25,850/-, imposed via departmental inquiries for alleged omissions and negligence – Petitioner contended that inquiries were conducted improperly, and the punishment orders were non-speaking – Held: Departmental inquiries were held according to law, and no procedural errors or violations of natural justice were found – Recovery orders upheld [Paras 10-13].

Service Law – Conveyance Allowance – Denial on Grounds of Delay – Petitioner, claiming 70% orthopedic disability, sought conveyance allowance as per Government instructions dated 10.09.1982 – Petitioner's application was delayed, and the department rejected the claim on procedural and time-barred grounds – Held: Petitioner's failure to follow the required procedure and the delay in applying for allowance justified the denial – Conveyance allowance claim rejected [Paras 16-19].

Retirement Benefits – Delayed GPF Payment – Interest Awarded – Petitioner's GPF payments were delayed, and he sought interest on the delayed amounts – Held: The delay was attributable to the respondents and not the petitioner – Petitioner entitled to interest on the delayed payments as per court precedents, including interest on installments released in 1998, 2000, and 2001 – Interest granted on delayed GPF payments [Paras 20-23].

Decision: Petition is partly allowed – Recovery orders dated 30.08.2001 and 06.09.2001 are upheld – Petitioner's claim for conveyance allowance is rejected – However, petitioner is entitled to interest on the delayed payment of GPF from 01.06.1997 till the actual payment dates, after adjusting any interest already paid – Respondents directed to calculate and release interest accordingly [Paras 23].

Criminal Law – Murder and Rape Conviction – Acquittal – Appellant was convicted for murder, rape, and robbery of the deceased under Sections 302, 376A, and 392 IPC by the trial court – Prosecution relied on circumstantial evidence, including witness testimonies placing the appellant near the crime scene, recovery of stolen gold, and mud-stained clothes – Appellant challenged the conviction on grounds of unreliable witness testimony, lack of forensic evidence, and failure to prove the chain of circumstances beyond doubt – High Court found inconsistencies in witness statements, failure of DNA analysis, and discrepancies in the recovery of material objects – Held: Prosecution failed to establish guilt beyond reasonable doubt – Conviction and sentence set aside [Paras 1, 8, 9, 16, 24, 43].

Circumstantial Evidence – Break in Chain of Circumstances – The conviction was based on circumstantial evidence including testimonies of PWs 9, 10, and 11, who claimed to have seen the appellant near the crime scene with muddy clothes – Court noted that these witnesses were not credible due to contradictions and embellishments in their statements – Forensic evidence, such as soil analysis, did not link the appellant to the crime scene – Held: Mere presence of the appellant near the crime scene and recovery of ornaments are insufficient to establish guilt in the absence of a complete chain of evidence [Paras 16-21, 24].

Forensic Evidence – DNA and Soil Analysis – Failure to Link Accused – Prosecution claimed that semen found on the deceased’s body and appellant's underwear linked him to the crime – However, DNA analysis was inconclusive due to insufficient material – Soil analysis of the appellant's clothes did not match the soil from the crime scene – Court held that the absence of conclusive DNA and soil evidence significantly weakened the prosecution's case – Prosecution failed to use scientific evidence effectively to establish guilt [Paras 24-25, 29-31].

Recovery of Ornaments – Inadmissibility under Section 27 of Evidence Act – Gold ornaments were recovered based on the appellant's alleged disclosure statement – Court found that the exact words of the appellant's disclosure were not properly recorded, and independent witnesses were not present during the recovery – Held: The recovery was not in accordance with law and could not be used to infer guilt – Recovery evidence was deemed inadmissible and insufficient to link the appellant to the crime [Paras 33-39].

Failure to Explain Injuries – Non-linkage to Crime – Minor injuries were found on the appellant's body during a medical examination – However, the prosecution failed to establish the age of the injuries or link them to the crime – No injuries were noted in the deceased's genitalia, contradicting the prosecution's claim of rape – Held: Injuries on the appellant were insufficient to connect him to the murder or sexual assault [Paras 42].

Decision: Appeal allowed – Conviction and sentence under Sections 302, 376A, and 392 IPC set aside – Appellant acquitted – Appellant to be released immediately if not required in any other case [Paras 43].