Citation-5

ORISSA CRIMINAL REPORTS AUGUST 2022

1.   Section 167(2) r/w 36-A (4) of NDPS Act-Granting extension of time for completion of investigation-Against the principle of law enumerated in Section 167(2) Cr.P.C. – Granting extension of time for completion of investigation beyond 180 days without granting any opportunity of hearing to the petitioner and even without intimating him of his right for release on bail upon completion of 180 days gross violation of law- Order of the learned Sessions Judge-cum-Special Judge and subsequent remand of the petitioner into custody is illegal and liable to be set aside.

2.   Ss. 15 and 45- Cause of death- Homicidal or suicidal- Proof of- Evidence of doctor who had carried out post-mortem mentioned presence of ante-mortem knot mark on necks- Cause of death appeared to be Asphyxia due to hanging and nature of death could be suicidal-Neither any fracture was found, nor any blood clots or injuries noticed- As dead bodies were decomposed. Doctor could not express any conclusive opinion about nature of death- Evidence of prosecution fell short to prove homicidal death of deceased-Possibility of suicidal death could not be ruled out.

3.   Section 25- Narcotic Drugs and Psychotropic Substances Act, Section 67- Confession before an Excise Officer conducting search, seizure and investigating into the case, is hit by Section 25 of Evidence Act and not admissible in evidence- Conviction set aside.

4.   Section 118- Child witness- Whether a child witness is competent enough to understand the questions and answers them rationally depends on fact of each case- Stated.

5.   Section 20(b)(ii)(c) and Section 32-B- Minimum sentence prescribed for punishment u/s 20(b)(ii)(c)  is ten years; but in the present case, the learned Trial Court imposed sentence of imprisonment for 12 years, which is beyond the minimum sentence of imprisonment of 10 years, and the reasoning given by the Trial Court does not fall within the factors stated u/s 32-B NDPS Act, which is not sustainable- Punishment reduced from 12 years to 10 years.     

6.   Section 32-B- Where in a given case, under NDPS Act, the learned Trial Court wants to impose higher punishment than the minimum prescribed punishment, then the factors prescribed u/s 32-B of NDPS Act are to be taken into account.

7.   Sections 147, 148 and 302/149- Murderous assault- Vicarious liability- Prosecution case that on 8.6.2010, at night, outside a hotel bar, there was a scuffle and accused persons were seen surrounding ‘GS’ and ‘NG’ having altercations with them and then accused ‘V’with their friends  started pushing ‘GS’ and ‘NG’- At that time accused ‘MA’, who was standing near, said that the people could not kill him, therefore, asked for a pistol and he will kill them- Saying so he snatched pistol from the hand of accused ‘J’ and caused a gunshot injury on the face of ‘GS’, as a result of which he fell on the ground- Thereafter, accused ‘J’ snatched that pistol from the hand of ‘MA’ and caused two gunshot injury on chest of ‘NG’,- ‘J’ then putting his leg on chest of ‘GS’ caused a gunshot injury on his chest and killed ‘GS’ and ‘NG’- Seven accused were prosecuted for this murderous assault- Trial Court convicted accused persons for offences u/s 147, 148, 302, 302/149 IPC- On appeal, the High Court affirmed their convictions- Presence of appellants at place of incident stands established- Appellants were taking part in the initial scuffle and two deceased ‘GS’ and ‘NG’ were being pushed by all the accused- Eye-witness account showed full and effective participation of all the appellants-Held, the appellants could not escape the vicarious liability for the offence- Held, conviction of appellants as recorded by Courts below was sustainable.

8.   Ss. 300 and 201/34- Evidence Act, S. 24- Murder- Extra judicial confessional- Reliability- In absence of any substantive evidence against accused, extra-judicial confession allegedly made by co-accused loses its significance- There cannot be any conviction based on such extra-judicial confession of co-accused- Case laws stated.

9.   Ss. 302 and 201- Evidence Act, S. 106- Murder- Circumstantial evidence- Burden of proof- Deceased was allegedly strangulated to death by accused persons and an attempt was further made to conceal his identity, by pouring acid over body-Statements made by all sets of witnesses and fatal injuries sustained by deceased at relevant place and time proves that death of deceased was caused by accused persons- Prosecution succeeded in establishing intention of accused persons for commission of offence- Accused persons failed to discharge onus of proving cause of death of deceased- Entire chain of events point towards guilt of accused persons- Conviction, proper.

10. S. 302, 304-II, 201 and 34- Evidence Act, 1872- S 106- Murderous assault- Circumstantial evidence- Deceased was strangulated to death and an attempt was made to conceal his identity, by pouring acid over the body- Motive for crime.

11. S. 408-Entrust- Petitioner collaborated with the Managing Director of the Society, brought his signature in plain papers, also IRDP money was found to be deposited in the petitioner’s account-Held, petitioner had dominion over the money-Held, no justification to interfere in the order of framing charge.  

12. S.4- Offence u/s 408 IPC- Amount of misappropriation is small; petitioner is at present aged about 65 years- No criminal antecedent is reported against the petitioner-Petitioner directed to be released as per provisions of S 4 of Probation of Offender’s Act.

13. Further considering the materials available on record, this court is convinced that the legal requirements having been complied with and since the CARA has already issued No Objection Certificate, the adoption should have been allowed by the learned District Judge, Gajapati to provide poor helpless and abandoned child in question a better future fill with love and care of family and parents. Reported in Nissan Shalom Children Home (SAA) vs. Xx xxx xxx (2022) 87 OCR-368.

14. Copyright Act, 1957- Sections 63 and 65- Cr.P.C.- Section 482; First Schedule, Part-II- Offence of infringement of copyright-Offence u/s63 of the Copyright Act is cognizable and non-bailable offence. In Knit Pro International vs. State of NCT of Delhi & Anr. (2022) 87 OCR (SC)-537.