Tag: investigation

8
Jun

Learn more about the investigation process, fight for justice

Domestic violence, or family violence, is violent, abusive or intimidating behaviour in a relationship. There are many types of domestic violence, including social, physical, sexual and emotional. If you’re being subjected to domestic violence, there are a number of organisations that can offer you help and support.

aged couple of pensioners talking with employee at office

This can help if:

  • you’re in an abusive relationship
  • you don’t know what to do about your abusive relationship
  • you don’t know where to go to get help
  • you don’t know what your rights are.

What is domestic violence?

For violence to be ‘domestic’, it doesn’t have to occur within your home, only within a relationship (with family or an intimate partner). It occurs when someone close to you has power and control over you. This control or abuse can be expressed in different ways.

Physical abuse

If someone is hurting you physically, or is threatening to hurt you, a loved one or a pet, then you will need to take action. Read more about physical abuse and learn where to get support.

Emotional abuse

Emotional abuse often goes unrecognised and can be very hurtful. Someone who is emotionally abusive towards you wants to chip away at your feelings of self-worth and independence. Read more about what constitutes emotional abuse.

Social abuse

Social domestic violence occurs when someone insults or humiliates you in front of other people, keeps you isolated from family and friends, or controls what you do and where you go.

Spiritual abuse

Spiritual domestic violence involves preventing you from having your own opinions about religion, cultural beliefs and values. It may also involve manipulating your thoughts on spirituality in order to make you feel powerless.

Where to go

Recognising that there’s a problem is the first step in getting help. The second is to know that you’re not alone. If you need to get out fast, you have a number of options.

A shelter or refuge is a place where you can seek temporary accommodation while you sort out your next steps. There are also usually other services available in refuges, including legal advice, emotional support, practical help (such as food and clothing), and good security.

You can, get in contact with a trusted family member or friend and ask if you can stay with them while you work out what to do next.

How can you keep yourself safe?

An abuser may exert control by downplaying the seriousness of what they’re doing to you. As a result, it’s easy to underestimate the amount of danger you’re in. It’s vital to protect yourself from harm if you feel that you’re being abused.

How likely is it that someone will hurt you? Sometimes it’s hard to work out the danger or risks yourself. If you’re unsure about your safety, it’s important to talk to someone. If you feel uncomfortable, you may have to move to somewhere safe.

If you feel unsafe, talk to the police. They’re there to protect you. You can also call state and territory support lines to talk about the risks you face.
Check out your legal rights at the Lawstuff website. Every state has laws designed to protect against all forms of domestic violence.

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22
Jul

Certain issues with evaluation of evidence a lawyer must know

  1. Decided cases are not of much use in evaluating evidence. Each case depends on its own facts. A close similarity between one case and another is not enough to warrant like treatment because a significant details may alter the entire picture. One should avoid the temptation to decide cases by matching the colour of one case against the colour of another. The board resemblance between two cases is not at all decisive.[1] A judgment is not to be read as a statute. It must be read reasonably in its entirely. The effect of the judgment must be found out from the language used and the attendant circumstances in which they had been used.[2]
  2. Observation of courts are to be read neither as Euclid’s Theorems nor as provisions of statutes and that too taken out of their context. They must be read in the context in which they appear to have been made. Disposal of cases by blindly relying on a decision is not proper because an additional fact or a different fact may make a world of difference between conclusion inn two cases. Courts should not place reliance on decisions without discussion fact situation of the case on which reliance is placed.[3]
  3. There is no hard and fast rule regarding evaluation of evidence.[4] A witness can be disbelieved regarding some accused and believed regarding the other accused.[5] Where there are large number of accused and injured, witness can get confused and evidence cannot be rejected on the mere basis of contradiction.[6] In such case, conviction of any one could be sustained only if two or more witness support the case against that person; else, benefit of doubt must go to the particular accused.[7]
  4. Victims may act differently. Reaction and resistance would depend upon a variety of circumstances.[8] If eyewitness are not courageous enough to inform police or to go to the help of the injured, who was not a relative, it cannot be inferred that they had not witnessed the occurrence or that they are giving false evidence.[9]
  5. In a given case, instinct of self-preservation can be the dominant instinct.[10]
  6. No evidence should be adjudged adversely, making any other evidence including medical evidence as the sole touchstone for the test of credibility. Evidence must be tested for its own inherent consistency and inherent probability of that version, consistency with version of other witness held to be creditworthy, consistency with undisputed facts, credit-worthiness, their performance in the witness box, their power of observation, etc. then probative value of such evidence becomes eligible to be put into scale.[11]
  7. Culpability of each accused (in case and counter case) must be determined with reference to their individual overt acts.[12]
  8. When witnesses are rustic persons, their behavioural patterns, perceptions and habits must be taken into consideration and appreciated. Approaches that are too sophisticated, based on assumptions about human conduct cannot be applied to people accustomed to ways of village, as they may not have keen sense of time.[13]
  9. Fringe variations, discrepancies in details, contradictions in narration, and embellishments in non-essential part cannot militate against veracity of the core of testimony, if there is an impress of truth and conformity to probability in substantial fabric of prosecution story.[14]
  10. Exaggeration in the prosecution’s case about the commencement of the incident may not detract from the incident that was proved by eyewitness.[15]

[1] Parasa raja Manikyala Rao v. State of Andhra Pradesh, AIR 2004 SC 132

[2] Prem Singh v. State of Haryana, AIR 2009 SC 2573

[3] Union of India v. Arulmozhi Iniarasu, AIR 2011 SC 2731

[4] Dalbir Singh v. State of Punjab, AIR 1979 SC 1384

[5] Ahmed Suleman Bhorat v. State of Gujarat, AIR 1971 SC 991

[6] Har Prasad v. State of Madhya Pradesh, AIR 1971 SC 1450

[7] Masalti v. State of UP, AIR 1965 SC 202

[8] State of UP v. Samman Dass, AIR 1972 SC 677

[9] Apren Joseph alias Current Kunjunju v. State of Kerala, AIR 1973 SC 1

[10] Sucha Singh v. State of Punjab, AIR 2003 SC 3617

[11] State of UP v. Krishna Gopal, AIR 1988 SC 2154

[12] Kewal Singh v. State of Punjab, AIR 2004 SC 72

[13] Shivaji Sahebrao Bobade v. State of Maharastra, AIR 1973 SC 2622

[14] Shivaji Sahebrao Bobade v. State of Maharastra, AIR 1973 SC 2622

[15] Parsuram Pandey v. State of Bihar, AIR 2004 SC 5068

18
Jul

Legal Shorts; SC:Omission of Investigation Officer can’t be of benefit to the accused.

S. 304-B and 498-A, IPC – Omission on part of investigating officer – Effect of – Held, should not be taken in favour of accused – In present case of dowry death, investigating officer omitted to do investigation regarding documents produced by accused in court allegedly exculpating them – Effect, if any –

Held, investigating officer is not obliged to anticipate all possible defences and investigate in that angle – In any event, any omission on part of investigating officer cannot go against prosecution – Interest of justice demands, that such acts or omission of investigating officer, should not be taken in favour of accused, or otherwise it would amount to placing a premium upon such omissions – If investigating officer had omitted to do investigation regarding documents produced by accused in court, accused could have taken steps to prove documents to substantiate their defence – Having not done so, accused cannot turn round and contend that there were lapses on part of investigation which vitally affected prosecution case – Dowry Prohibition Act, 1961, Ss. 3 and 4 – Evidence Act, 1872, S. 114 Ill. (g)(Paras 33 to 38).

Case:
V. K. Mishra  Vs. State of Uttarakhand.

Citation:
(2015) 9 SCC 588: AIR 2015 SC 3043.

Bench Strength – 3.
Coram: T. S. Thakur, R. K. Agrawal and R. Banumathi, JJ.
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Shared by:
ADV. MAHESH VASWANI,
MUMBAI.
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3
Jul

Legal Shorts; SC: Inquiry into fairness of investigation (being conducted by CBI) – Assistance sought by court.

Assistance sought particularly for determining the methodology for conducting inquiry (in Coal Block Allocation Scam) – Notice issued to Central Vigilance Commission – Delhi Special Police Establishment Act, 1946.

Case:
Common Cause v. Union of India.

Citation:
(2015) 6 SCC 332: (2015) 4 SCC (Cri) 182.

Bench Stenghth – 3.
Coram: *Madan B. Lokur, Kurian Joseph & Dr. A.K. Sikri, JJ.

Date of decision: 14-05-2015
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Shared by:
ADV. MAHESH VASWANI,
MUMBAI.
***************************

22
Jun

Legal Shorts; Deficiencies in Investigation- Effect- CrPC, 157

It was held that merely deficiencies in investigation cannot be ground to discard the prosecution version which is authentic, credible and cogent. (Para 12)

 

Case: State of M.P. v. Mansingh

 

Citation:

(2003) 10 SCC 414

 

Bench: 2

Doraiswamy and Arjit Parayat. JJ.

 

____________________________________

Adv Nisha Singh, Delhi

_____________________________________

 

22
Feb

Legal right of the person at the time of arrest

It is sad to mention that very few of us actually know our legal right that too at the time of arrest. One shall, whether or not, a legal practitioner shall know her/his legal right to protect himself from unjust circumstances.

To protect the legal rights of the person emphasised in D.K. Basu v. State of Bengal [AIR 1997 SC 610] that custodial torture is a naked violation of human dignity and degradation which destroys to a very large extent the individual personality.

Further, section 41-B, 50-A, and 54 was introduced through CrPC (Amendment) Act, 2005 lay down the procedure of arrest of a person and duties of the officer making the arrest.

Read: The Police cannot refuse to register FIR

Section 41-B lays down the procedure of arrest of a person and duties of the officer making the arrest. Apart from preparing a memorandum of arrest, which shall be attested either by a member of the family of the arrested person or a respectable member of the locality, it is the duty of the police officer to inform the arrested person that he has a right to have a relative or a friend named by him to be informed of his arrest.

Section 50 further confers the right to the arrested to have full particulars of the offence and other grounds of arrest.

Section 50-A casts an obligation on the person making the arrest to inform about the arrest, the place where the arrested person is being held and the right of the arrested person to be brought to police station. To the person so nominated by the arrested person.

Section 54 makes an obligation on the arresting authority to ensure that the arrested person is examined by a government doctor or a registered medical practitioner.

Section 51 lay down the procedure before making the personal search of the accused. The searching officer and other assisting him should give their personal search to the accused before searching the person of the accused. This rule is meant to avoid the possibility of implanting an object to be shown in the search. The ground of such arrest must be given to the accused. Where no such grounds are given, the search becomes illegal and thus it could lead to acquittal of the accused, or amount to compensation to the accused in case of the accused have to suffer harassment.

Read: When police refuses to register an FIR?

Section 53 further protects the person from illegal investigation or from illegal process to conduct legal investigation. It lays down the condition that medical examination will have to be done at the instance of a police officer not below the rank of sub-inspector. The person shall not be subjected, voluntarily or involuntarily, to polygraph and brain fingerprinting tests as these types of test is barred by Article 21 (3) of the Constitution of India. In Selvi v. State of Kernataka [AIR 2010 SC 1974] the Supreme Court mentioned that subjecting a person to polygraph and brain fingerprinting tests involuntarily has been held as amounting to forcible interference with his mental process. It is clear violation of right of privacy.

Section 53-A provides for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape by the registered medical practitioner employed in Government Hospital or in absence by local authority. It is necessary for the woman who was raped to go through DNA test. Denial or obstruction by, whomever, is penal.

Section 55-A lay down that it shall be duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. The constitution of India, under Article 22 (2) also provides for producing the arrested person before magistrate within 24 hours.

Section 57 mentioned that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place to the Magistrate’s court.