Robbery with Air Gun

Section 392 of the Penal Code which provides for robbery is as under:

“Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.”

As per Section 397, the sentence of imprisonment to be awarded under Section 392 cannot be less than 7 years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person.

Meaning of ‘uses’

A difficulty arose in several High Courts as to the meaning of the word “uses” in Section 397. The term ‘offender’ in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon- The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment no another offender who had not used any deadly weapon. Continue reading “Robbery with Air Gun”

Proof of recovery of contraband under NDPS Act

In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused.

The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act. Continue reading “Proof of recovery of contraband under NDPS Act”

Willful Contempt and Mens Rea

Even if mens rea or guilty mind is not required to punish for contempt of court, the act alleged must be willful before a person is convicted for contempt.

Contempt of court by disobedience:

Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms. In civil proceedings one obvious form is a wilful failure by a party to the proceedings to comply with a court order made against him. By such a breach a party may frustrate, to greater or lesser extent, the purpose the court sought to achieve in making the order against him.

Sometimes the purpose a court seeks to achieve in making an order against a party to proceedings may be deliberately impeded or prejudiced by the conduct of a third party. This may take more than one form. The third party may be assisting, that is, aiding and abetting, a breach of the order by the person against whom the order was made. Then he is an accessory to the breach of the order. Continue reading “Willful Contempt and Mens Rea”

Recovery of fine for dishonour of cheque.

Recovery of fine.

Whether when compensation is ordered as payable for an offence committed under Section 138 of the Negotiable Instruments Act, and in default thereof, a jail sentence is prescribed and undergone, is compensation still recoverable?

The facts were that the complainant approached the Magistrate under Section 138 of the Negotiable Instruments Act in a transaction where the accused had borrowed a sum of Rs.2.75 lakh from the complainant. When the complainant demanded the amount, the accused issued a cheque for the said amount which was returned as dishonoured due to insufficiency of funds. The requisite demand notice was sent by the complainant to the accused followed by the complaint. Ultimately, the accused was found guilty of the offence under Section 138, and was convicted

Will undergoing imprisonment due to default in payment of fine will wipe out liability?

Continue reading “Recovery of fine for dishonour of cheque.”

Identification of accused in Court: Procedure.

If the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence.

Evidence Act; Section 8 and 9:

“Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.”

It was further held:

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.

It was further held that “the photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath”.

[Source: Manu Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1]

“In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time”

[Source: Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC 2562]

“Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.

[Source: Jana Yadav vs. State of Bihar, (2002) 7 SCC 295]

It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible.

[Source: Rabindra Kumar Pal @ Dara Singh v. Republic Of India, Sup. Ct. on 11 Jan. 2011]

 

Sanction for prosecution of Govt Servant in India

Sanction NOT required to Prosecute Police / Govt. or Public Servants for Criminal Offences:

(See Code of Criminal Procedure, 1973; Section 197)

The principles for granting sanction for prosecution of Government Servants are summarized hereunder :

I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.

III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.

IV. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.

Continue reading “Sanction for prosecution of Govt Servant in India”

Medical examination of rape victim

DNA Test in Rape cases

Police directed to invariably resort to DNA test which is most important investigative tool to prove the offence or innocence

It has been seen that in number of cases relating to rape, the most powerful investigative tool which is available to the police is the DNA test which is seldom being resorted to.

The DNA report can either confirm or exclude the involvement of the accused. The police is directed that in every case under Section 376 of I.P.C.:-

(a) under which the doctor preparing the MLC of the prosecutrix prepares vaginal slides and clothing of the prosecutrix, which upon test by the FSL confirms the presence of human sperm then such slides must then be sent for DNA verification with the blood sample of the suspect.
(b) where the prosecutrix is rendered pregnant on account of the rape and if birth takes place, then a DNA verification be sought to ascertain paternity of the child which will again either confirm or exclude the suspect. If the foetus is aborted, then the tissue sample of the foetus be tested along with the sample of the suspect to see if they match, and
(c) in the event of the death of the prosecutrix during pregnancy, then also procedure enunciated in (b) to be followed.

[Source: Raja Burman @ Rahu vs The State Of Madhya Pradesh, MP High Court on 4 May, 2016]

Women criminals not entitled to special mercy.

Women if exempt from imprisonment?

Facts:

The prosecution succeeded in proving, beyond reasonable doubt, that respondent in furtherance of common intention with her co-accused had administered stupefying intoxicating substance to the complainant with intent to commission of offence, that is, theft of currency notes of the complainant and in the process attempted to kill the complainant as well. Continue reading “Women criminals not entitled to special mercy.”

Power of High Court to quash criminal proceedings:

Inherent powers of High Courts:

Criminal Procedure Code, 1973, Section 482 saves inherent powers of High Courts in India.

More than 65 years back, in Emperor v. Khwaja Nazir Ahmed[6], it was observed by the Privy Council that Section 561A (corresponding to Section 482 of the Code) had not given increased powers to the Court which it did not possess before that section was enacted. It was observed, `The section gives no new powers, it only provides that those which the court already inherently possess shall be preserved and is inserted lest, as their Lordships think, it should be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of the Code’.

Power to compound the offence:

Continue reading “Power of High Court to quash criminal proceedings:”

Bail in a Rape case

Rape case is generally presumed to be the case in which bail can not be granted at all. Matter gets worse when Courts make general observations about conditions and plight of women and proceed to refuse bail without referring to the facts of the case.

Conduct of complainant:

In one such case FIR was recorded in 2001, in which no allegation of rape was made and a case of misbehaviour u/s 506(2) was registered. No action was taken by complainant for a nearly a decade when she applied the court to add the charge of rape which was finally allowed in 2013.

Delay in addition of charge of rape:

Continue reading “Bail in a Rape case”