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CRIMINAL LAW AMENDMENT ORDINANCE PASSED TO PROTECT WOMEN WITH SEVERAL MEASURES 2013

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EXAMPLE OF IPC :- (NEW SECTION ADDED) Public servant disobeying direction under law. "166A. Whoever, being a public servants-. a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or b) knowingly disobeys, to the prejudice or any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or c) fails to record any information given to him under subsection (1) of section 154 of the Code of Crimina! Procedure, 1973 and in particular in relation to cognizable offence punishable under section 354, section 354A, section 354B; section 354C, sub-section (2) of section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E, (2 of 1974). shall be punished with imprisonment for a term which may extend to one year or with fine or with both.".

DELAY IN LODGING FIR IS NOT FATAL – EPLANATION FOR DELAY TO BE TAKEN INTO ACCOUNT 2013 SC

DELAY IN LODGING FIR IS NOT FATAL – EPLANATION FOR DELAY TO BE TAKEN INTO ACCOUNT 2013 SC

The Honble Justice K. S. Radhakrishnan and The Honble Justice Dipak Misra of Supreme court of India, in the case of Kanhaiya Lal & Ors. Vs State of Rajasthan Decided on 22-04-2013 It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of H.P. v. Gian Chand , (2001) 6 SCC 71 wherein a three-Judge Bench of this Court has expressed thus: - “Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.”

In Ramdas and others v. State of Maharashtra (2007) 2 SCC 170, Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation, there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them.

In Meharaj Singh v. State of U.P. (1994) 5 SCC 188, a two-Judge Bench of this Court has observed that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of
appreciating the evidence led at the trial and the object of insisting
upon prompt lodging of the FIR is to obtain the earliest information
regarding the circumstance in which the crime was committed, including
the names of the actual culprits and the parts played by them, the
weapons, if any, used, as also the names of the eyewitnesses, if any,
for delay in lodgment of the FIR results in embellishment which is a
creation of afterthought. Emphasis was laid on the fact that on
account of delay, the FIR not only gets bereft of the advantage of
spontaneity but also danger of introduction of a coloured version or
exaggerated story. Thus, whether the delay creates a dent in the prosecution story and ushers in suspicion has to be gathered by scrutinizing the explanation offered for the delay in the light of the totality of the facts and circumstances. Greater degree of care and caution is required on the part of the court to appreciate the evidence to satisfy itself relating to the explanation of the factum of delay. In Kilakkatha
Parambath Sasi and others v. State of Kerala AIR 2011 SC 1064, it has been observed that when an FIR has been lodged belatedly, an inference can rightly follow that the prosecution story may not be true but equally on the other side, if it is found that there is no delay in the recording of
the FIR, it does not mean that the prosecution story stands
immeasurably strengthened.


PRINCIPLES GOVERNING CIRCUMSTANTIAL EVIDENCE

Justice K.S. Radhakrishnan, and Justice Dipak Misra in the case of Jagroop Singh vs State Of Punjab Decided on 20 July, 2012 AIR 2012 SC 2600 QUOTED FOLLOWING CASE LAWS
In Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, a three-Judge Bench has laid down five golden principles which constitute the “panchsheel” in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra AIR 1973 SC 2622 = (1973) 2 SCC 793 , it was opined that it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between `may be’ and `must be’ is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
In Padala Veera Reddy v. State of Andhra Pradesh and others 1989 Supp (2) SCC 706 : 1991 SCC (CRI) 407, this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (SCC pp. 710-11, para 10)
“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”
The similar view has been reiterated in Ramreddy Rajesh Khanna Reddy and another v. State of A.P. (2006) 10 SCC 172.

In Balwinder Singh v. State of Punjab AIR 1996 SC 607 , it has been laid down that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.
In Harishchandra Ladaku Thange v. State of Maharashtra AIR 2007 SC 2957, while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasised that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
In State of U.P. v. Ashok Kumar Srivastava AIR 1992 SCW 640 = AIR 1992 SC 840 emphasis has been laid that it is the duty of the Court to take care while evaluating circumstantial evidence. If the evidence adduced by the prosecution is reasonably capable of two inferences, the one in favour of the accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to a singular hypothesis that the accused is guilty.
In Ram Singh v. Sonia and Ors. AIR 2007 SC 1218 , while referring to the settled proof pertaining to circumstantial evidence, this Court reiterated the principles about the caution to be kept in mind by Court. It has been stated therein that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.
In Ujagar Singh v. State of Punjab (2007) 13 SCC 90, after referring to the aforesaid principles pertaining to the evaluation of circumstantial evidence, this Court stated that it must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.

INSENSITIVITY SHOWN BY LEARNED SESSIONS JUDGE TO A SERIOUS CRIME COMMITTED AGAINST A HAPLESS WOMAN – JUDGMENT CHARACTERISED AS PERVERSE

JUSTICE Aftab Alam, and JUSTICE Ranjana Prakash Desai in the case of Vajresh Venkatray Anvekar vs State Of Karnataka on 3 January, 2013

Learned Sessions Judge has refused to rely upon the evidence of the parents, brother and brothers-in-law of Girija primarily on the ground that they are interested witnesses. We find this approach to be very unfortunate. When a woman is subjected to ill-treatment within the four walls of her matrimonial house, ill-treatment is witnessed only by the perpetrators of the crime. They would certainly not depose about it. It is common knowledge that independent witnesses like servants or neighbours do not want to get involved. In fact, in this case, a maid employed in the house of the appellant who was examined by the prosecution turned hostile. It is true that chances of exaggeration by the interested witnesses cannot be ruled out. Witnesses are prone to exaggeration. It is for the trained judicial mind to find out the truth. If the exaggeration is of such nature as to make the witness wholly unreliable, the court would obviously not rely on him. If attendant circumstances and evidence on record clearly support and corroborate the witness, then merely because he is interested witness he cannot be disbelieved because of some exaggeration, if his evidence is otherwise reliable. In this case, we do not find any such exaggeration qua the appellant. The witnesses have stood the test of cross- examination very well. There are telltale circumstances which speak volumes. Injuries suffered by Girija prior to the suicide cannot be ignored. The pathetic story of Girija’s woes disclosed by her parents, her brother and her brothers-in-law deserves to be accepted and has rightly been accepted by the High Court. A1 and A3 have been acquitted by the Sessions Court. That acquittal has been confirmed by the High Court. The State has not appealed against that order. We do not want to therefore go into that aspect. But, we must record that we are not happy with the manner in which learned Sessions Judge has ignored vital evidence.

Learned Sessions Judge’s observation need to be quoted: “… … …When the death of the deceased had come to the knowledge of P.W.1, it was around 2.30 p.m. and that house of the accused in which deceased committed suicide was hardly 2 K.Ms. away from the P.S. I feel that P.W.1, reaching the police station as late at 22.15 hours., is a delay and this delay is not explained. The possibility of P.W.1Suresh discussing with his relatives also to net in the in-laws as A-1 and 3 with oblique motive cannot be ruled out. Therefore this delay of 5 to 6 hours which is un-explained is a fatal to the case of prosecution. … … …”
We are amazed at this observation. When a man looses his daughter due to cyanide poisoning, he is bound to break down. He would take time to recover from the shock. Six hours delay cannot make his case untrue. It is also not proper to expect him to give all minute details at that stage. The F.I.R. contains sufficient details. It is not expected to be a treatise. We feel that the comments on alleged delay in lodging the F.I.R. and its contents are totally unwarranted.

We are wary of passing comments against the subordinate courts because such comments tend to demoralize them. But, in this case, we will be failing in our duty if we ignore the insensitivity shown by learned Sessions Judge to a serious crime committed against a hapless woman. We need to quote certain extracts from learned Sessions Judge’s judgment which will show why we are so anguished.
“The other allegations in Ex-P1 complaint is that the deceased was asked to get up at 5.00 a.m. early in the morning and she was asked to attend to house-hold work. Even the accused had asked the deceased to attend to house hold chorus, that is not the act of cruelty, so as to drive the deceased to commit suicide………………………………… …………………………Conduct of the accused in reprimanding the deceased for her lethargic habits, strongly advising her to be more compatible with members of the family and to evince interest in the domestic shores cannot be considered as acts of cruelty.”

Learned Sessions Judge further observes as under: “In 1995, Cri. L.J. Page -2472, (Neelakanth Patil vs. State of Orissa), it is held that; mere statement that the deceased wife was not happy with the husband-accused, is not sufficient. Particularly in the absence of any direct evidence, oral or documentary about ill treatment one or two incident of assault by the accused-husband is not likely to drive the wife to commit suicide. Therefore, the Hon’ble High Court held the conviction of the husband was not proper.” (emphasis supplied)
Reproduction of Orissa High Court’s judgment does not appear to be accurate. Learned Sessions Judge further observes as under: “PW-11 has not stated the particular day of the noticing face of the deceased turning brownish and right eye upper portion blackening. He has not stated particular day on which he found deceased to be panic. He has not stated particular day on which he found the deceased physically weak. Therefore, again these imputations are all general allegations. As I said earlier even if upper eye portion or face of Girija had changed their colour because of A-2 giving beatings, that alone as I said earlier is not the act of cruelty driving the deceased to commit suicide.”
“As I said earlier A-1 and 3 are the ordinary residents of Karwar. In between the date of the marriage and the death of the deceased on 13.6.2002 she was very much staying with her husband A-2 in Bombay. Therefore, giving one or two beating is not cruelty to drive the deceased to commit suicide.”

The tenor of the judgment suggests that wife beating is a normal facet of married life. Does that mean giving one or two slaps to a wife by a husband just does not matter? We do not think that that can be a right approach. It is one thing to say that every wear and tear of married life need not lead to suicide and it is another thing to put it so crudely and suggest that one or two assaults on a woman is an accepted social norm. Judges have to be sensitive to women’s problems. Perhaps learned Sessions Judge wanted to convey that the circumstances on record were not strong enough to drive Girija to commit suicide. But to make light of slaps given to Girija which resulted in loss of her eyesight is to show extreme insensitivity. Assault on a woman offends her dignity. What effect it will have on a woman depends on facts and circumstances of each case. There cannot be any generalization on this issue. Our observation, however, must not be understood to mean that in all cases of assault suicide must follow. Our objection is to the tenor of learned Sessions Judge’s observations. We do not suggest that where there is no evidence the court should go out of its way, ferret out evidence and convict the accused in such cases. It is of course the duty of the court to see that an innocent person is not convicted. But it is equally the duty of the court to see that perpetrators of heinous crimes are brought to book. The above quoted extracts add to the reasons why learned Sessions Judge’s judgment can be characterized as perverse. They show a mindset which needs to change. There is a phenomenal rise in crime against women and protection granted to women by the Constitution of India and other laws can be meaningful only if those who are entrusted with the job of doing justice are sensitized towards women’s problems.



INSENSITIVITY SHOWN BY LEARNED SESSIONS JUDGE TO A SERIOUS CRIME COMMITTED AGAINST A HAPLESS WOMAN – JUDGME... by

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