Right of privacy of consenting adult:
i. The offence of “carnal intercourse against the order of nature” has not been defined in Section 377. It is too wide, and open-ended, and would take within its sweep, and criminalise even sexual acts of consenting adults in private.
A distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature. Furthermore, consensual relationships between adults cannot be classified along with offences of bestiality, sodomy and non-consensual relationships. Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination.
Section 377 insofar as it criminalises voluntary sexual relations between LGBT persons of the same sex in private, discriminates against them on the basis of their “sexual orientation” which is violative of their fundamental rights guaranteed by Articles 14, 19, and 21 of the Constitution. Continue reading “Section 377 of Penal Code not applicable to LGBT community.”
Distinction between Murder and Homicide not amounting to murder:
It is important to have a look at the evidence of PW 5-Dr. Arvind Kanwar who has conducted Post mortem and according to him there was an incised wound on the right parietal region of size 4” and 10” above right ear and another incised wound of 1” in size on the right index finger. He has deposed that “the brain was found congested, yet no fracture was seen on the scalp”. Though in the cross examination he has stated at one place that the injury No 2 on the scalp might be ‘grievous’ that caused brain hemorrhage. This particular fact is not noted in the postmortem report. Regarding the cause of such injury, PW5 stated that it can be caused by striking with sharp edged object and the depth of the scalp injury depends upon the force and speed. He maintains the stand that it was a ‘scalp injury’ and not ‘skull injury’. Moreover, he did not measure the depth of the head injury which was necessary for classification of injury. Continue reading “Death due to brain hemorrhage”
Mandatory Jail Term
Section 325 of IPC is as under:
“325. Punishment for voluntarily causing grievous hurt.-Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Section 428 of Cr.PC is as under:
“428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.-Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him:
Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section.”
So far as Section 325 IPC is concerned, its reading would show that once the accused is held guilty of commission of offence punishable under Section 325 IPC, then imposition of jail sentence and fine on the accused is mandatory. In other words, the award of punishment would include both, i.e., jail sentence and fine. So far as jail sentence is concerned, it may extend upto 7 years as per Court’s discretion whereas so far as fine amount is concerned, its quantum would also depend upon the Court’s discretion. Continue reading “When imposition of jail sentence and fine on the accused is mandatory.”
Sexual intercourse with a bride below 18 years if a rape.
Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?
Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.
Continue reading “Marital rape with a girl below 18 years”
Definition of Conspiracy
Section 120A of IPC defines criminal conspiracy which reads thus:
“120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,-
1) an illegal act, or
2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Continue reading “Criminal Conspiracy: Meaning and proof.”
Probation of Offenders Act, 1958:
Objectives of the Act:
The Probation of Offenders Act, 1958 is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that. having regard to the circumstances of the case, including the nature of the offence and the character of the offenders. it is not desirable to deal with them under ss, 3 and 4 of the Act. Continue reading “Release of Convicts on Probation of Good Behaviour”
Sniffer dog trails if evidence?
Services of a sniffer dog may be taken for the purpose of investigation but its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused.
Objection against sniffer dog trail:
There are three objections which are usually advanced against reception of the evidence of dog tracking. First since it is manifest that the dog cannot go into the box and give his evidence on oath and consequently submit himself to cross-examination, the dog’s human companion must go into the box and the report the dog’s evidence and this is clearly herersay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inference.
[Abdul Rajak Murtaja Dafedar v. State of Maharashtra, (1969 (2) SCC 234)]
In another case the objection pertaining to sniffer dog was that the life and liberty of human being should not be made to depend on animals sensibilities and that the possibility of a dog misjudging the smell or mistaking the track cannot be ruled out, for many a time such mistakes have happened. In the said case, Court relying decision in Abdul Rajak Murtaja Dafedar (supra) case held: “We are of the view that criminal courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties adumbrated above, although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals.”
[Source Gade Lakshmi Mangaraju alias Ramesh v. State of A.P., (2001) 6 SCC 205]
It was followed with another case and it was held that “the law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused.
[Source: Dinesh Borthakur v. State of Assam, (2008) 5 SCC 697]
Conclusion about sniffer dog in evidence:
Thus the services of a sniffer dog was taken for investigation. The said dog traced the accused and he was formally arrested in the evening of the next day. The Investigating Officer, Ashok Kumar Yadav (PW-10) corroborated the evidence of Abdul Lais Khan (PW-4) to the effect that â€˜Rajaâ€™ sniffer dog after picking up scent from the place of occurrence tracked down the house of the accused. What is relevant to note is that the accused has not been convicted on the ground that the sniffer dog tracked down the house of the accused and barked at him. The evidence of dog tracking only shows how the accused was arrested.
[Source: Lalit Kumar Yadav @ Kuri vs State Of U.P (Supreme Court of India)]
Scope of liability of Criminal Omission:
Failure to act when required by law, is an act of criminal omission. It is a strict liability if specifically punishable by a law. However no omission can be presumed as criminal omission, especially if the relevant statute did not provide for the consequences of such criminal omission.
Indian Penal code 1860 vide Sections 32 and 35 provide for criminal liability in respect of certain Omissions:
The section 32 and 35 of Penal Code are as under:
32. Words referring to acts include illegal omissions.: In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.
35. When such an act is criminal by reason of its being done with a criminal knowledge or intention.: Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.
Legal compulsion required to constitute criminal omission:
The law in India as regards illegal omissions has been explained in Ambika Prasad v. Emperor and Anna v. State of Hyderabad AIR 1956 Hyd 99. There must be a legal compulsion to do an act and the failure to perform such an act would result in illegal omission. Not any and every omission to perform an act would result in a criminal liability. A reference may be made to the decisions in Queen v. Anthony Udyan (1883) ILR 6 Mad 280 and Basharat v. Emperor AIR 1934 Lahore 813. These provisions will have to be strictly construed. Otherwise each and every omission can attract criminal liability.
[Source: Delhi High Court speaking through S Muralidhar, J. in on 29 May, 2008 in Avnish Bajaj v State.]
Thus every omission to act is not criminal omission.