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The Delhi High Court has recently reiterated that the presumption of innocence must be maintained until the accused is found guilty.

The single judge bench of Justice Vibhu Bakhru while setting aside the impugned judgment where the appellant was convicted for offence punishable under s 307 of IPC observed, “even though the appellant may be involved in other cases, the same could not be considered as a factor to award a harsher sentence because the appellant had not been convicted in any of the cases at the material time.”

The appellant had filed the present appeal impugning a judgment dated November 30, 2011, whereby the appellant, Chhotu Kumar @ Chote Fauji, was convicted of the offences punishable under Sections 186, 353 and 307 of the Indian Penal Code and Sections 25 and 27 of the Arms Act, 1959 (Arms Act).

The appellant stated that he had already served more than five years of his prison sentence and thus, had served the sentence awarded to him in respect of all offences other than the offence punishable under Section 307 of the IPC. He contended that insofar as the offence punishable under Section 307 of the IPC is concerned, there was a serious doubt as to the case set up by the prosecution.

The learned counsel for the appellant further contended that the sentence awarded to the appellant was harsh and onerous.

The impugned order on sentencing indicates that the Trial Court had awarded a higher sentence on the ground that the appellant was involved in other cases, he argued, adding that the appellant had not been convicted in any case and therefore, taking an adverse view against him on the ground that he was being prosecuted was not permissible. He further stated that the CrPC only permits taking previous convictions into account and not merely FIRs, which are in the nature of mere allegations

Taking into consideration the factual matrix of the case, the court relied on Dharampal & Anr. v State on 28 July, 2011 Delhi High Court. Court noted,

"It is true that in view of Section 293 of the Criminal Procedure Code, the report in question need not have been proved by summoning the author thereof, but that does not mean, that during trial nobody had to tender the same in evidence and have the same exhibited by deposing that either he himself went to the FSL Laboratory and collected the report in question or deposing that during investigation he obtained the report in question and that the same pertains to the investigation conducted in the case which was being tried. It must be deposed that the report in question pertains to the case at hand."

The Court stated that it is unable to accept that the prosecution has established its case that the appellant had committed an offence punishable under Section 307 of the IPC beyond any reasonable doubt.

“It is settled law that the presumption of innocence must be maintained until the accused is found guilty. Therefore, even though the appellant may be involved in other cases, the same could not be considered as a factor to award a harsher sentence because the appellant had not been convicted in any of the cases at the material time. This Court is of the view that the Trial Court erred in considering that the appellant was also involved in other cases, while considering the quantum of sentence.” - noted the court.

Therefore the court, acquitted the appellant of committing an offence punishable under Section 307 of the IPC. The appeal was allowed and the appellant was directed to be released.

Advocates For the Appellant : Mr. Akshay Bhandari and Mr. Digvijay Singh, Advocates For the Respondent : Mr. Amit Gupta, APP for State.

Case Title: Chhotu Kumar @ Chote Fauji Vs. State (Govt. of NCT Delhi)
Statute, Point of Law Involved: IPC, CRPC, Arms Act

Access Judgment Copy Here

[Revisit to Statutory Provisions by the Author]

Criminal Procedure Code:

 Section 276 : Record in trial before Court of Session

1. In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court or under his direction and superintendence, by an officer of the Court appointed by him in this behalf.
2. Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding Judge may, in his discretion take down or cause to be taken down, any part of such evidence in the form of question and answer.
3. The evidence so taken down shall be signed by the presiding Judge and shall form part of the record.

Section 293 : Reports of certain Government scientific experts

1. Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
2. The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
3. Where any such expert is summoned by a Court and he is unable to attend personally, he may unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
4. This section applies to the following Government scientific experts, namely:-
   1. any Chemical Examiner or Assistant Chemical Examiner to Government;
   2. the Chief Inspector of Explosives;
   3. the Director of the Finger Print Bureau;
   4. the Director, Haffkeine Institute, Bombay;
   5. the Director 1 [Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State forensic Science Laboratory;
   6. the Serologist to the Government.
   7. any other Government scientific Expert specified by notification by the Central Government for this purpose.

Section 307 IPC: Attempt to Murder

Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.