Criminal Law

6
Feb

How to prove and investigate murder in the case of death by poisoning ?

Please note before reading this article that this article was written in good faith to convict the guilty person. Please don’t use it on innocent accused. As collecting evidence in the case of death by poisoning is to some extent easy by medical practitioner but to corroborate it in such a way to prove conviction is near impossible.

In case of Criminal poisoning, the law in India does not insist on the precise definition of a poison, since the sections of Indian Penal Code dealing with offences relating to the administration of as poison make use of such self-explanatory terms as ‘any poison or any stupefying, intoxicating, or any wholesome drug, or other thing’, or ‘any corrosive substance or any substance which is deleterious to the human body to inhale, to swallow or to receive into blood’. With regard to any poisonous substance used in section 284 of the Indian Penal Code, all that the law requires is that the substance is such as, if taken, is likely to endanger human life, or will cause hurt or injury to any person.  Again, the law takes cognisance of the malicious intention of the individual who administer a drug or other substances, with a view to cause injury or death, irrespective of the quantity or quality of the substance.

In the case of murder by poison the prosecution must prove beyond reasonable doubt that;

  • The deceased died of a particular poison;
  • The accused was in possession of the same;
  • He had opportunity to administer the same to the deceased.[1]

In case of death by poisoning when motive as circumstances is put forward, it must be fully established like any other incriminating circumstances. In a poisoning case there is two possibilities, the accused will be given benefit of doubt as any infirmity or lacuna in prosecution cannot be cured by false evidence or plea.

Read: How to investigate a murder case?

In the case of death by poisoning benefit of doubt always stands with the accused. In one case the young lady was strangulated in her-laws house within few months of her marriage. She was not suffering from any disease but medical report was not sure as to cause of death and possibility of partial hanging could not be ruled out. The accused was acquitted by giving him benefit of doubt.[2]

In another case the accused administered mercuric chloride mixed with tamarind into vagina of his wife who immediately thereafter started feeling severe burning sensation in her genitals. Initially doctors admitted administration of poison but subsequently turned hostile and victim died after 44 days due to renal failure. The accused being a scientist knew the use and misuse of the chemical substance and general effect of such poison is renal failure and such poison is not traceable3 after 4 or 5 days of its administration. The conviction of the accused for murder was upheld.[3] The allegation was that the death of the deceased was caused by administrating celphos, a poisonous substance but as per medical evidence the congestion of organs of deceased was due to some other reasons i.e, due to food poisoning but police omitted to protect the place where samples of vomits could be found. Motive was not discovered and conviction of accused was held liable to be set aside.[4]

Diagnosis of Poisoning –

The diagnosis of poisoning has to be made in the living as well as in the dead.

In the Living; In order to avoid police investigation most people are unwilling to supply true information and correct history of the case. However, it can be done in below mentioned case;

  • Where the person is healthy, the onset is usually sudden and it can be deducted on sudden change in the symptoms of the victim except in chronic poisoning where the symptoms develop gradually and may easily be mistaken for a diseases. In addition it should be suspected if similar repeated attack of vomiting or diarrhoea occur in a person after a meal. Drink or medicine. In chronic poisoning the victim’s working and daily condition must be investigated.
  • The symptoms usually commence within about an hour after the poison has been taken in a particular kind of food, drink, or medicine if it is not administered orally, but by some other channel, in which case, the effect may be immediate. Moreover, the symptoms of some diseases such as cholera, acute pancreatitis and rupture of the stomach may appear all of sudden, soon after taking a meal or drink. In condition it may be mentioned that a criminal may take the advantage of some epidemic diseases occurring at the time and may administer a poison producing the symptoms almost similar to those of the epidemic, so that death may be attributed to it. According to Modi Medical Jurisprudence and Toxicology circumstances may be witnessed where arsenic was administered and death was attributed to cholera present as an epidemic at the time. However, the post-mortem examination revealed the sign of irritant poisoning and the Chemical Examiner detected arsenic in the viscera.
  • The symptoms of uniform in character, and rapidly increase in severity followed either by death or early recovery. Sometimes remission may occur in the opium poisoning and certain poison may leave sequelae inn a long duration, should be taken into consideration by intelligent advocate to bring out the mishandling of evidence.
  • The detection of poison in the food, medicine, vomit, urine or faeces is a strong proof of poisoning. The learned advocate shall not forget to look over all the parameter of evidences. Ignorance of one can question veracity of the total evidence.

In the Dead—Diagnosis in the dead which is beneficial for advocate to proof the case and convict the guilt minded person is to be taken in moral and circumstantial evidence.

Read: How to proof common intention in criminal cases?

In the case of poisoning the fact whether the accused was the person who administered the poison can be proved only from moral and circumstantial evidence. This is furnished by common witness who testify to the recent purchase of the poison by the accused. The medical evidence cannot overthrow circumstantial evidence if proved beyond reasonable doubt.

[1] Budhwari Bari v. State of M.P. 1991 CrLJ 3054 (3058) relying on Mohon v. State of U.P. AIR 1960 SC 659 CrLJ 1011

[2] Babu v. State, 2003 CrLJ 1011 (Ori) : 2002 (4) Crimes 24 : 2002 (94) Cut LT 76

[3] Marepalli Ventaka Sree Nagesh v. State (2002) CrLJ 3625 (AP) : 2002 (2) Andh LT (cri) Ap 52

[4] Jaipal v. State of Haryana, (2002) CrLJ 4703 (SC) : AIR 2002 SC 3447

1
Feb

Consent in deception of benefit is no consent for sexual gratification

Section 88 IPC sanctions the infliction of any harm if it is for the benefit of the person to whom it is caused. If a person gives his free and intelligent consent to take the risk so speculated or the risk so occurred out of the act for which the consent was given the person with whom, or with the help of whom the act is being committed will not be liable for its consequences.

However, to invoke s 88 good faith is essential on the part of the accused. In an English case, Queen v Emperor. AIR 1949, the accused F was charged for rape. The prosecutrix a girl of 19 was suffering from frequent fits. She was taken by her mother to the accused F who professed to render medical cure for monetary consideration. F took the daughter and mother to a suspicious place where many question were asked by the mother and then he replied, “it was nature’s string wanted breaking” and asked if he might break it. The mother replied that she did not know what he meant, but that she did not mind if it would do her daughter any good. On this F said to the mother, “You stay, I’ll try”. Eventually the girl was taken to an adjoining room where the she was laid on the floor, her clothes were removed, and the accused F committed sexual intercourse on her. The accused was convicted for rape. It was urged that there was consent on the part of the girl’s mother, who was being guardian of the prosecutrix was capable enough to give consent in good faith, and therefore no rape is being committed. When the girl and the accused went in the room alone, it is clearly found in the case that the only thing contemplated either by the girl or her mother was the operation which had been advised; sexual connection was never thought of either of them. And after she was in room alone with the prisoner what transpired was that the girl made feeble resistance, believing that she was being treated medically, and what was taking place was surgical operation. There was complete lack of bona fide on the part of accused. So based on mela fide intention of the accused, the accused F was convicted of rape.

In another case, where a medical man had connection with a girl of 14 years of age, under the presence that he was thereby treating her medically for the complaint for which he was attending her, and she made no resistance, owing solely to the bona fide belief that such was the case, this was held to be certainly an assault, and, it was suggested a rape.

29
Jan

The Police cannot refuse to register FIR

When anyone who has seen the occurrence of criminal activity or has even slight knowledge of it, the police on receiving the complaint has no option but to register it and thereafter start investigation.[1] It has no discretion or authority to enquire about credibility of information before registering the case.[2] Where the police refused to register FIR on the basic of a written report on the ground of false allegations as concluded in an ex parte preliminary enquiry, the High Court directed the registration of the FIR and fresh investigation treating the ex parte preliminary enquiry as non est[3]. It has been held that information disclosing cognizable offence is sine qua non for recording FIR and the police cannot refuse to register the case on the ground that it is either not reliable or credible[4].

The registration of FIR for the offence you know is your duty and that of the police to not to refuse to register the FIR. Refusal to record the FIR on the ground that the place of crime does not fall within the territorial jurisdiction of the police-station amounts to dereliction of the duty. The police shall register the information as ‘Zero FIR’ and then pass it to the police station that has jurisdiction over it. ‘Zero FIR’ is a FIR that can be lodged in any police station irrespective of its jurisdiction and later it can be forwarded to the respective police station. Mere delay in logging FIR is no ground of its refusal. However, the court can question the credibility of information but the police has no discretion to reject the same on the ground of delay[5].

No duration of time can be fixed as reasonable for giving information to the police. In one case of rape, the brother of the victim submitted that after his return from the field he was informed that his sister had not returned home, he was informed by two co-villagers that she was seen with the accused, but did not lodged the report as honour of the family involved. The Court held that the delay in lodging FIR was reasonably explained and it cannot be said that FIR was lodged after consultation and deliberation. Section 154 of CrPC lefts no discretion on the police to decide whether or not to register the FIR. It is mandatory in nature and the concerned officer is duty bound to register the case on the basis of the information disclosing a cognizable offence.

[1] Munna Lal v. State of H.P. 1992Cr LJ 1558 (HP)

[2] Naurata Ram v. State of Haryana, 1995 Cr LJ 1568 (P&H)

[3] Tulsi Ram v. State of M.P., 1993 Cr LJ 1165 (MP)

[4] Gurmito v. State of Punjab, 1996 Cr LJ 1254 (P&H)

[5] Ram Singh v. State of M.P. 1989 Cr LJ NOC 206 (MP)

24
Jan

Women related law:- All compiled

The constitutional law is the parental law of all other in the India. The basic law provided under constitution of India for Women are under Article 14, 15, and 16;

Article 14; Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) Access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Article 16. Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Further, the state is under moral obligation to make policy in favour of women under article 39 (a) and 42 of the constitution of India.

Article 39. Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing

(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Article 42. Provision for just and humane conditions of work and maternity relief:

The State shall make provision for securing just and humane conditions of work and for maternity relief.

The constitution of India provides protection in general which is applicable in all other act passed, or will be passed in future by the parliament. Any law in violation of those principles enshrined in constitution are null and void. But constitution alone cannot protect all other specific rights of women therefore several statutes are enacted to provide specific protection of women rights and dignity such as;

  1. The Indian Penal Code,1860
  2. The Indian Evidence Act, 1872
  3. The Indian Christian Marriage Act, 1872 (15 of 1872)
  4. The Married Women’s Property Act, 1874 (3 of 1874)
  5. The Guardians and Wards Act,1890
  6. The Workmen’s Compensation Act, 1923
  7. The Trade Unions Act 1926
  8. The Child Marriage Restraint Act, 1929 (19 of 1929)
  9. The Payments of Wages Act, 1936
  10. The Payments of Wages (Procedure) Act, 1937
  11. The Muslim Personal Law (Shariat) Application Act, 1937
  12. Employers Liabilities Act 1938
  13. The Minimum Wages Act, 1948
  14. The Employees’ State Insurance Act,1948
  15. The Factories Act, 1948
  16. The Minimum Wages Act, 1950
  17. The Plantation Labour Act, 1951 (amended by Acts Nos. 42 of 1953, 34 of 1960, 53 of1961, 58 of 1981 and 61 of 1986)
  18. The Cinematograph Act, 1952
  19. The Mines Act 1952
  20. The Special Marriage Act, 1954
  21. The Protection of Civil Rights Act 1955
  22. The Hindu Marriage Act, 1955 (28 of 1989)
  23. The Hindu Adoptions & Maintenance Act, 1956
  24. The Hindu Minority & Guardianship Act, 1956
  25. The Hindu Succession Act, 1956
  26. The Maternity Benefit Act, 1961 (53 of 1961)
  27. The Beedi & Cigar Workers (Conditions of Employment) Act, 1966
  28. The Foreign Marriage Act, 1969 (33 of 1969)
  29. The Indian Divorce Act, 1969 (4 of 1969)
  30. The Contract Labour (Regulation & Abolition) Act, 1970
  31. The Medical Termination of Pregnancy Act, 1971 (34 of 1971)
  32. Code of Criminal Procedure, 1973
  33. The Equal Remuneration Act, 1976
  34. The Bonded Labour System (Abolition) Act, 1979
  35. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
  36. The Family Courts Act, 1984
  37. The Muslim women (Protection of Rights on Divorce) Act, 1986
  38. Mental Health Act, 1987
  39. National Commission for Women Act, 1990 (20 of 1990)
  40. The Protection of Human Rights Act, 1993 [As amended by the Protection of Human Rights (Amendment) Act, 2006 – No. 43 of 2006]
  41. Juvenile Justice (Care and Protection of Children) Act, 2000
  42. The Child Labour (Prohibition & Regulation) Act
  43. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
  44. The Prohibition of Child Marriage Act, 2006
  45. The Immoral Traffic (Prevention) Act, 1956
  46. The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986)
  47. The Indecent Representation of Women (Prohibition) Act, 1986
  48. The Commission of Sati (Prevention) Act, 1987 (3 of 1988)
  49. Protection of Women from Domestic Violence Act, 2005
  50. The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act, 2013
  51. केंद्र सरकार द्वारा महिलाओं का कार्यस्थल पर लैंगिक उत्पीड़न (निवारण, प्रतिषेध एवं प्रतितोष) अधिनियम, २०१३ की धारा २९ के अंतर्गत बनाये गये नियम

But the sad thing is that none of them except sati prevention Act, 1987 have been successful. The aim and objective of all of the said Act/s are yet to accomplish and none other than us will be a helping hand in accomplishing these objectives.

The specific provision for protection of women rights are discussed here under;

  • Adultery :- Adultery is a very serious crime against women in India and affects married women by and large. In simple words adultery means having voluntary sexual relationship with a married person other than the spouse. The offence of adultery is dealt with by section 497 of the Indian penal Code, 1860, which says adultery means sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. However we may find different meaning of adultery in different laws in different countries. Initially only men were punished under the law of adultery in India but now men and women both are equally responsible for committing the crime of adultery. As per section 497, the offender shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as a partner in crime.
  • Child marriage :-Child marriage is a very awful offence against child as it does not only harms the future of child but also damage social values. Further the doctors have also revealed that child marriage is a very big reason for bad health condition for girl child. Child marriage restricts the social development along with reduction in the educational and employment opportunities in the global market. It was like a burden on society to practice this unwritten custom. The major step was taken by the Law Commission of India by fixing the minimum age for marriage which is 18 years for girls and 21 years for boys. Another major step was mandatory primary education and moreover for girls provision for free education provided by the Government of India.
  • Female feticides:Female feticide means identifying and killing of female fetus before they take birth. This is the most brutal way of killing women. The custom of female feticide is practiced by the society form ancient times and it is really shameful to note that even today, when we considers ourselves educated and civilized, this custom is practiced in a big manner. Government has taken so many steps to spread awareness among people about the consequences of this crime. Many awareness programs are conducted by the Government to spread the awareness about the physical, mental and social effect of this practice. Punishment of 3 years imprisonment and Rs. 10,000 fine has been prescribed by Pre conception and Pre Natal Diagnostic Techniques (Prohibition of Sex selection) Act, 1994, for the offence of Female feticides.

In a recently development Maharashtra government has recommend to the center that the crime of female feticide should be treated as murder. To ensure this amendment in Pre conception and Pre Natal Diagnostic Techniques (Prohibition of Sex selection) Act, 1994, (PCPNDT Act, 1994) would become necessary. This provision will bring this crime within the category of murder under section 302 of the Indian Penal Code (IPC).

  • Trafficking and Prostitution :-Trafficking means import and export of humans for sex business. It is indeed very sad to learn that in India, where women are recognized as Devi and prayed by all Indian’s as Devi Shakti, they are also treated as a source of earning by unethical means. Prostitution is one of the biggest problems in this world which is damaging the women in many ways. In general, the term prostitution means offer of sexual services for earning money. Prostitution is a problem which exists across the world. There are quite a few laws in India in order to prevent the crime of prostitution like Suppression of Immoral Traffic in Women and Girl Act 1956 and Immoral Traffic (Prevention) Act 1956. There are few commissions are made by state Government to save women and specially girls to protect them from this practice.
  • Domestic Violence:- Domestic violence has become a very serious problem for women. In general the term Domestic violence means mental, physical, emotional and economical harassment of a woman by family members. For the purpose of domestic violence family includes spouse, his mother, father, brother, sister, his relatives and sometimes even friends. We call ourselves educated and talk too much about morality, ethics and civilization and expect others to be good to create a dream world but forget that without giving due respect to the women, a nation’s growth is impossible. Now in India domestic violence is recognized as a criminal offence under section 498A of Indian Penal Code, 1860. Domestic violence means cruelty by husband towards women. Cruelty can be done by physically, mentally, economically or emotionally.

An act called Domestic violence Act, 2005 was introduced to handle the cases of Domestic violence in India. This act is a very noteworthy attempt in India to recognize domestic violence as a punishable offence. Before the introduction of this act two kinds of remedies were available to a women affected by Domestic violence. These two remedies were divorce through civil courts and application of section 498A through criminal courts.

  • Eve teasing: – It is a general perception that eve teasing is not a big crime like rape or murder and may be because of that we don’t take it seriously. But from a women’s point of view eve teasing is also a very big crime as this activity does make her feel uncomfortable most of the times. Eve teasing usually involves teasing women, passing comments on women and making vulgar signs (eshare). A woman has to face this kind of irritating behavior and deal with this on daily basis. She can’t even fight back due to fear of disrespect by others as everyone will blame her and say that you must have done something to invite them. In case of eve teasing girl should not remain silent and raise her voice. She should inform her family members and simultaneously file a complaint in the nearest police station. In this case family should also support the women instead of locking her at home.
  • Acid Throwing:- Recently the issue of acid throwing on girls has also become a big issue. There are few types of acids and all are very dangerous for human flash and burn. This acid attack sometimes is so dangerous that even bones and eyes are also got damaged due to acid. Few victims are forced to leave their education or occupation due to the results of acid throwing. Now a days this has become very easy for people to get these acids and the cases of acid throwing has become very regular in daily life.

It is quite sad that despite of so many cases of acid attacks on women, we do not have a dedicated and specific law to deal with such cases. The National Commission for Women (NCW) is asked for a well defined law to deal with such casualties. The NCW has introduced a draft of the Prevention of Offences (by Acids) Act, 2008, which is with now with the Union Ministry of Women and Child Development for the purpose of vetting and final recommendations. Once the Union Ministry of Women and Child Development approved the Bill, it will be sent to the law ministry to be tabled in Parliament. After the approval in Parliament it will become applicable as law.

  • Fraudulent Marriage:- Before going into the details of Fraudulent Marriage let me explain the general meaning of fraud in relation to crime against women. Fraud means hiding something or giving false impression about something which a person knows that knowing the fact may harm his prospective marriage. The scope of fraudulent marriage has increased in the recent past as in India parents of a girl are very fond of NRI son in law. Parents want to settle their daughter with any rich NRI. Parents of brides don’t inquire too much about the NRI groom as they are happy that their daughter is going to marry a rich person who will fulfill her all demands and she will live a luxurious life in abroad. There blind faith on NRI’s may invite problems like false commitments, false details, second marriage and infertility. This is not necessary that fraudulent marriages only took place in case of NRI’s even Indian grooms also do the same for money or for boy child or for any other reason.
  • Exploitation at work place:- Though we all accept the truth that in today’s world women has come out of her image of house wife and proved herself as a better administrator then a man. In all sectors women are working hard and getting awards and rewards for that. She has crossed all the boundaries and shut the mouth of all those peoples who has ever questioned her working caliber.But she has to pay a very heavy price of her success as she has to face exploitation at work place do we ever think what boundaries she has crossed and how. What she had paid go get this position and power? How much pain she has felt to become this person.

Such act/s are prevented and punishable under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

  • Rape, murder: – Rape is another very serious crime against women and this crime is increasing day by day like anything. Reporting of rape and abduction cases has become very common in print and electronic media which is indeed a very sad affair for all of us. Increasing rape cases are enough to prove that our moral values are still very low and we still to learn how to respect the dignity of women at large.

In simple terms the word ‘Rape’ means sexual intercourse or sexual penetration, by another person without the consent of the other person or victim. Provisions related to rape are given in section 375 and 376 of the Indian Penal Code, 1860. Section 375 explains the pre-condition which are necessary to prove the offence of rape whereas section 376 provides punishment for the offence of rape. As per section 376, whoever commits the offence of rape shall be punished with imprisonment of either for a term which shall not be less than seven years (7) but which may be for life or for a term which may extend to ten years and shall also be liable to fine.

  • Dowry:- The system of dowry is another social evil which dragging women back from 100 of years as this evil has a very long history especially in India. Various dowry based domestic violence cases has been reported by media. There are ample legal provisions in India to provide relief to women in case of dowry based domestic violence cases. Civil law of India has prohibited the payment of dowry in the year 1961. Further Indian Penal Code, 1860 has introduced Sections 304B and 498A, which allows women to file complaint and seek restoration of her rights from serious harassment by the husband’s family.

    Dowry is one of the strong and biggest reasons of increasing domestic violence. Every year thousands of dowry deaths along with mental trauma cases reported and registered in India. In case of inadequate dowry, incidents like burning, suicides, physical and mental torture of women is very common by husband and his family. Keeping in view the increasing cases of dowry deaths another legislative provision called “Protection of Women from Domestic Violence Act 2005”, was introduced in order to reduce domestic violence cases and to protect women’s rights.

Women have always been seen as a victim from the time immemorial. They are subjected to discrimination, criminality, harassment, and inhumane treatment. Such a prospective of society fabricates yet another discrimination. My attempt is to show women as an evolution and the face of development of the society. The criminality against women is not only the death of her dignity but the human race as well.

23
Jan

High Court cannot make unreasonable interference in the order of trial Court

The Supreme Court in State of Maharastra v Jagmohan Singh AIR 2004 has explained the revisional jurisdiction of High Court that it would be unreasonable to interfere with the order of the acquittal in exercise of its revisional jurisdiction at the instance of the informant. Though High Court can differ from trial court based on the admissibility of evidence but it cannot be only reason for exercise of revisional jurisdiction u/s 401 against the judgment of acquittal. In the absence of any legal infirmity either in procedure or in conduct of the trial court, there is no justification for the High Court to interfere in the exercise of its revisional jurisdiction. It has been held in several judgments that the High Court should not re-appreciate the evidence to reach the finding different from the trial court.

The revisional jurisdiction of High Court is only appreciated when there is manifest illegality in the finding of trial court resulting in grave miscarriage of justice. it is therefore established that the High Court could not convert the finding of acquittal into conviction directly u/s 401 (3) CrPC, it could not do so indirectly by the method of ordering of retrial. The High Court shall not interfere in the revision of an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The apex court, for this purpose, has not made an exhaustive list of circumstances in which the exercise of revisional jurisdiction may be justified but the decisions of apex court have laid down the parameters for the exercise of revisional jurisdiction of High Court u/s 401 in an appeal against acquittal by the private party. The High Court while acting as a revisional court cannot exercise the power of a second appellate court.

In P.V. Narasimha Rao v State, 2000, where the trial court appreciated the evidence and there was no evidence which had been wrongly or not considered or, if admitted, not considered and/or any other defect or illegality which could necessitate an interference, it would not be open to the High Court act aside the order of the trial Court merely because another opinion was possible on the same evidence.

In Tutul Kumari Sen v State of Jharkhand AIR 2009 a revision petition was filed against the discharge given to the accused merely on the ground that the FIR did not disclose the commission of any offence. No reasons were given for arriving at such a conclusion. The order of the discharge was held to be not sustainable.

22
Jan

Construction of evidence in rape case

Rape is a crime and not a medical diagnosis to be made by the medical officer treating the victim. It is a charge made by the investigating officer on a complaint by the victim. The only statement that can be made by the medical officer is whether there is evidence of recent sexual activity.

References of the construction of evidence has been made through various case listed in the article.

Mathura Rape case 1979

This case raised certain important issues in the law of evidence.

Mathura, a 16 years young girl, was raped at the police station where she had been called in the night for interrogation along with her husband, Ashok, on a complaint lodged by her brother against Ashok, herself and some others.

After interrogating for several hours, the police constable, Ganpath, took Mathura into a latrine situated near the police station and raped her. Mathura complained her brother soon after getting consciousness and consequently the complained was lodged in the police station. The medical examination of Mathura made 20 hours after the incident revealed that she had no injury on her person and that her hymen revealed old ruptures. However, the presence of semen was detected on the girl’s clothes and on the accused. The Supreme Court examined and concluded that the sexual intercourse in the question has not proved to the amount of rape which resulted in raising an unprecedented amount of protest amongst the social worker and soon developed in country which led to change in the law of rape and recognising that the custodial rape by a person in authority including the policeman considered to be rape.

Another development took in Sakshi v Union of India with Sudesh Jakhu v Narendra verma AIR 2004 where a public interest litigation was filed by Sakshi a woman organisation to issue a writ declaring ‘inter alia’ that ‘sexual intercourse’ as contained in s 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration and for  issue of a direction for registration of all such cases to be filing under s 375, 376, and 376A- 376D, IPC.

In Madan Gopal Kakkad v Naval Dubey & another 1992 in Supreme Court in an alleged case of rape of a minor aged eight years on the examination of the victim after five days, the medical officer found an abrasion on the medical side of labia majora and redness around labia minora with white discharge but the hymen was intact and was admitting the tip of the little finger and in view of the absence of the signs of full penetration, the medical officer opined that there was an attempt to rape and accordingly the trial court convicted the accused and the conviction was further approved by Supreme Court in subsequent appeal. This judgment further codified into law in Criminal Amendment Act, 2013.

In Kumari Narayanamma v State of Karnataka & ors 1995 the Supreme Court held that the ruptured hymen and admission of two fingers cannot be viewed as if the victim was habitual to sexual intercourse and also the presence of spermatozoa in vaginal smear is not a must in all acts of rape as the absence may be due to various factors.

In State of Haryana v Jung Bahadur 1999, the lady doctor who conducted the medical examination of the victim found the hymen torn but could not give any definite opinion whether the rape had been committed or not. The chemical analysis of the undergarment of the accused, salwar of victim and chaddar on which the accused committed rape showed presence of semen of the same group. The trial court convicted the accused but the conviction was set aside by Punjab and Haryana Court and the accused was acquitted on the grounds that the case of rape was not established from the medical evidence and the evidence of the victim suffered from improbabilities. However, the Supreme Court set aside the order of the High Court and convicted the accused on the ground that the report of the chemical analysis and the medical evidence supported the case of the prosecution.

The Supreme Court in State of U.P. v Munshi 2009 pronounced a landmark judgment against the hypocrite society wherein it was held that even assuming that the victim was previously accustomed to sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was, did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has right to refuse to submit herself to sexual intercourse to anyone and everyone because, she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.

18
Jan

Arrest of police officer in unlawful detention under s 498A

Due to phenomenal increase in matrimonial dispute the Supreme Court in Arnesh Kumar vs State of Bihar & Anr 2014 have passed an order sentencing arrest of police officer for every unlawful detention under section 498A of Indian Penal Code (IPC). The prime objective of s 498A IPC was to combat the menace of the harassment of wife at the hand of her husband or her relative. S 498A was a means to an end of inhumane treatment against woman and therefore sensing the gravity of the offence s 498A constructed cognizable and non-bailable but unfortunately the cause in the course of  time has lost it purpose and it has been used more as a weapon than as a shield by disgruntle wives and constantly for one purpose or another husband and his relatives were harassed under this provision. In a report published by National Crime Record Bureau ‘Crimes in India 2012 statistics’ in year 2012, 1,97,762 person all over the India have been arrested u/s 498A of which more than quarter of them were women. It accounts for more than 4.5% of the total crime committed under different sections of Indian Penal Code.

The offence u/s 498A provides for a maximum imprisonment for a term which may be extended up to seven years, with or without fine. However, from the plain reading of s 41(1)(b) CrPC it may be incurred that the person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by police officer only on its satisfaction that such person had committed the offence punishable as mentioned in the code. The police officer before arrest of the accused must satisfy that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from altering the evidence; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such police officer is arrested his presence in the court cannot be produced. The main purpose such a restriction on the power of arrest of police officer is that, the police officer before making the arrest must put the question to himself, why arrest? Is it really required? What purpose will it serve? What object will it achieve? Only after satisfaction of such a question the police officer shall exercise its power of arrest.

In Anwar Kumar vs State of Bihar 2014 the apex court ensured that police officer do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically and thus directed the state govt to instruct its police officer not to automatically arrest when a case u/s 498A IPC is registered but to satisfy themselves about the arrest under the parameters laid down in s 41 CrPC. Notice of appearance shall be served within two week from the date of registration of the case and only after failure of such terms the accused shall be arrested.

15
Jan

Contempt of Court and Defamation of Judge

The bench of Supreme Court in Bathina Ramakrishna Reddy vs The State of Madras 1952 observed that the language of section 499 of the IPC is wide enough to cover a case of contempt of Court. What is said is, that if a libel is punished against a judge in respect of his judicial function, that also is defamation within the meaning of section 499 of the IPC and as such libel constitute a contempt of court, it may said with perfect propriety that libel on a judge is punishable as contempt under the Indian Penal Code. Any statement that is libellous in nature may bring the adversity of section 499 of the IPC and it is on judge whether or not to take proper action against the libeller.

The privy council observed in Surendra Nath Banerjee v. The Chief Justice and the Judges of High Court that although contempt may include defamation, yet an offense of contempt is something more than mere defamation and is different in nature. Where when the act of defamation is calculated to obstruct or interfere with the due process of law, it would in all the probabilities amount to contempt. The contempt of court and defamation is different in nature. The offense of contempt is a wrong done by public weakening the authority and influence of the court of law which exist for their good. Argument was placed on the statement of Willmot. CJ. That attack upon the judge excite in the minds of the people a general dissatisfaction with all judicial determinations and whenever man’s allegiance to the law is so fundamentally shaken it is the most fetal and dangerous obstruction of justice.

What is punishable in the Indian Penal Code is the offense defamation and not the contempt of the court. However, if any statement or actions are contempt in nature the proceedings under section 2 of the Contempt of Court Act can be initiated.