Chandan Panalal Jaiswal vs State Of Gujarat 2004 CriLJ 2992

it should be conducted with utmost care and in a scientific manner. The other bone of submission is that the test is very sensitive and the test being a scientifictest, it should be conducted with utmost care and caution because some small/minor error may disturb the entire test and finding and that may result into serious prejudice to the accused.

the present petition should be dismissed observing important lacuna in the investigation and this lacuna has taken a disastrous shape on account of unfair attitude or because of any other reason, may be negligency or inefficiency on the part of Investigating Officer,
The second point of resistance placed by ld. PP Mr. Oza is that the averments made in the petition that the investigating agency has acted unfairly and there is no element of transparency, should be held to be baseless allegation made by the petitioners because the say of the petitioners as to their presence at the place other than the scene of offence The accused is not supposed to unfold his defence as per the law of our land, but when accused takes a specific stand from the beginning and opts to place a specific plea of defence, it becomes obligatory on the part of the investigating agency to investigate the stand taken by the accused objectively and thoroughly and to make detailed attempt to falsify the defence prosecuting agency and the Court are supposed to be sensitive when it comes under obligation to appreciate the facts leading to the commission of the crime and none of the parties directly or indirectly be permitted to put to advantageous position on sheer technicality. is nothing but unfairness and it reflects biased mind. The prosecution may not produce such evidence, if collected if prosecution does not want to rely upon such particular part of evidence, but when it is clear that investigation in this direction is not carried out at all, then atlest, it should be held that investigating agency has adopted one-way approach and reached to conclusion, in a slipshod manner. everything would rest on total evidence that may be led by the prosecution and only on the reports of scientific test carried out by the exports. In large number of cases, method, style and bonafide of investigating agency or some of the officers entrusted with the investigation or part of thereof, are now a days viewed with suspicion and, therefore, fairness and transparency is being insisted upon at each and every stage and, therefore, the prosecuting agency in our country is different then the investigating agency. TT Antony v. State of Kerala, AIR 2001 SC 2637.

Criminal Law Review Committee Eleventh Report, Cmnd 4991, Official records, London,UK

the Investigating Officer to deal with the plea of alibi sincerely and efficiently.

In one of the recent decisions in the case of State of M.P. v. Munna Choubey and Anr., 2005(2) SCC P.710, The Apex Court has observed thus; "Rape is violation with violence of a private person of that woman and outraged by all means. By the very nature of the offence, it is obnoxious act of the highest order. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not a mere physical injury, but deep sense of some deathless shame". Ram Lal Narang v. State (Delhi Administration), AIR 1979 SC 1791. However, the ratio laid down by the Apex Court in the said decision is that; " notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There was no provision in the Code of Criminal Procedure (1898) which, expressly or by necessary implication barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither S. 173 nor S. 190 lead to day that the power of the police to further investigate was exhausted by Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permits repeated investigations on discovery of fresh facts."
Gudalure M.J. Cherian and Ors. v. Union of India and Ors., (1992) 1 SCC 397, the Apex Court, without going into the various facts and circumstances mentioned by the petitioners in the writ petition in support of their apprehension that the investigation in the case by the police was not fair and victims are not likely to get justice from the authorities in the State of U.P State of Maharashtra and Ors. v. Sheela R. Kini and Ors., (1998)9 SCC 346 find that certain vital facts which emerge in the investigation have still remained unanswered. In this case supposedly, no steps were taken to find out if the rape was committed by someone else or who carried the body to the secluded place near the station. Kashmeri Devi v. Delhi Administration and Anr., 1988 (Supp) SCC 482The police has acted in partisan manner to shield the real culprits and the investigation of the case has not been done in a proper and objective manner.

Criminal Law Review Committee Eleventh Report, Cmnd 4991, Official records, London,UK

IDENTIFICATION PARADE The chance of misidentification is higtened when the poilice indicate to the witness that they have other evidence to implicate one of the persons who committed the crime. Simmons v. United states 390 U.S. 377, 1968

Neil v. biggers 1972 Mason v. Braithwaite 1977 laid down 5 criteria for for determining the reliability of the identification process Opportunity of the witness to view the offender at time of the crime Witnesss degree of attention Accuracy of the witness prior description The level of certainity displayed by the witness at the identification procedure with no indications of bias Length of time between crime and identification procedure In legal theory various safeguards are presumed to be operating within the justice system to prevent miscarriage of justice in the form of mistaken identification. Such could be done by laying down various standards and precautions to prevent the eye-witness memory.
"At least since United States v. Wade, 388 U. S. 218 (1967), the Court has recognized the inherently suspect qualities of eyewitness identification evidence, and described the evidence as "notoriously unreliable" "Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a [3] role in more than 75% of convictions overturned through DNA testing." In the United Kingdom, the Criminal Law Review Committee, writing in 1971, stated that cases of mistaken identification "constitute by far the greatest cause of actual or possible wrong convictions" "that an identification procedure enables suspects to put the reliability of an eye-witnesss identification to the test, that the suspect has lost the benefit of that safeguard, and that they should take account of that fact in their assessment of the whole case, giving it such weight as they think fit" R v. Z, Crim LR 174 (Court of
Appeal (Criminal Division), Potter LJ 2003) EXPERT WITNESS- A

qualified expert may testify "in the form of an opinion or otherwise" so long as: "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed. R. Evd. 2011,#702

SECTION 300

Criminal Law Review Committee Eleventh Report, Cmnd 4991, Official records, London,UK

Khuman Singh & Ors vs State Of M.P2005 AIR 1281

Section 300 "thirdly" IPC is not attracted, and it cannot be said that the appellants intended to cause any injury to the liver which perhaps proved fatal. This is always a question of fact as to whether accused shared a particular knowledge or intent. One must look for the requisite ingredient that the injuries which were intended to be caused were sufficient to cause death in the ordinary course of nature, and whether the accused possessed the knowledge that the injuries they were intending to cause were sufficient in the ordinary course of nature to cause death.

State Of Maharashtra vs Arun Savalaram Pagare1990 (1) BomCR 39

Laxman vs The State Of Rajasthan 1975 (8) WLN 243 The court were not able
to hold it proved that it was the intention of the appellant to inflict this particular injury on this particular injury on this particular place and consequently, it was not possible to apply Clause 3 of Section 300 IPC to the act of the accused. the only anxiety of the accused appellant in the present case was to get himself released from the woman so that be could escape and it was only for the purpose of securing his escape that be used the knife as the means without intending to cause any injury on the abdomen or the particular injury which proved fatal for that matter. That is the first part and in the second place, it will have to be seen that there was intention to inflict that very injury and nm some other injury and that it was not accidental or unintentional.

Narayanan Nair Raghavan Nair vs The State Of TravancoreCochinAIR 1956 SC 99

Where the defendant know that there is a serious rish that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse, the intention to expose a potential victim to that risk as the result of those acts. Without an intention of one of these three types the mere fact that the defendant's conduct is done in the knowledge that grievous bodily harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder. Hyam v. Director of Public Prosecutions (1974) 2 All. E.L.R. 41

In Virsa Singh Versus State of Punjab, AIR ...9/-91958 SC 465, this Court considered the facts and held that the prosecution must prove the following facts before it could bring the case under Section 300 "thirdly". "First, it must establish, quite objectively that a bodily injury is present;

Criminal Law Review Committee Eleventh Report, Cmnd 4991, Official records, London,UK

Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
'Emperor v. Damullya Molla', AIR 1931 Cal 261 (SB), is very often quoted in support of the view that it must be proved that the accused had knowledge that the injury which he intended to cause was sufficient in the ordinary course of nature to cause death. The presumption is that man intends the natural consequences of his act. But this doctrine cannot be carried too far, for otherwise, it would eliminate from the law the distinction between intentional and negligent or accidental wrong doing. The true rule is that where the injury caused is not the result of accident or of negligence, a strong presumption arises that the injury caused was intended to be caused, though this presumption may be rebuttedBehari

And

Ors. vs StateAIR 1953 All 203 Jagan v. state (1962) 2 Cr Lj 641

Section 300 clause 3 has 2 parts. The first part is a subjective one which indicates that the injury must be an intentional one, and not an accidental one and the second part is objective in the sense that, looking at the injury intended to be caused, the court must be satisfied that it was sufficient, in the ordinary course of nature, to cause death. Nanku v. state AIR 1972 All Cr. R 293; Ram v. state 1973 Cr LJ 1443; Re Thangavelu (1971) 2 Mad Lj 403 these two parts are disjunctive and seprate. In using the objective test, the court should consider that the accused had no weapon in attacking the deceased. In virsa singh v. satte of Punjab AIR 1958 SC 465, Vivian Bose, J. explained that If in the totality of the circumstances such inference it could be drawn that he didnt intend to inflict the injury that is proved to be present, then, ofcourse, the intent that the section requires is not proved. The test of intention is always subjective to the accused and can be inferred from the act, conduct or other relevant circumstances of the case. Mukka singh v. state of rajasthan 1975 WLN 555.

Criminal Law Review Committee Eleventh Report, Cmnd 4991, Official records, London,UK

In another case the apex court held that, there can be circumstances to show the intention of the offender which was not to inflict bodily injury sufficient, in the ordinary course of nature, to cause death and it was only accidentally, in circumstances, which the offender could not himself forsee, that a fatal injury was caused and death took place. Kachera Mal v. state of Uttar Pradesh 1973 All CrC 391

Exception 4- to invoke this exception four requirements must be satisfied, namely, (a) (b) (c) (d) It was a sudden fight; There was no premeditation The act was done in heat of passion; and Assailant had not taken undue advantage or acted in any cruel manner.

Premeditation is the guilding factor to draw a line between murder and culpable homicide. Ramesh narayan v. State 1999 Cr Lj 3056 (Cal) such distinction cannot be ignored. Nga Chit Tin V. King AIR 1939 Rang 225 premeditation may be established by direct or positive evidence or by circumstantial evidence. FACT The cause of the quarrel is not relevant, nor is it relevant who offered the provocation or started the assault. The nature of wounds caused during the occurrence is not a decisive factor but what is important is that occurrence must have been sudden and unpremeditated and the offender must have acted in fit of anger. Surinder kumar v. Union territory, Chandigarh AIR 1989 SC 1094. This exception is meant to apply to the cases where,in whatever way, the quarrel may have originated, the subsequent conduct of both the parties puts them on equal footing. Karam singh v. emperor AIR 1926 Lah 219. This means that this exception may be of help to an accused who was first to strike or to create an apprehension of danger in the mind of the other and as such cannot rely on any right of private defence of person, or, in the circumstances was not entitiled to the right of private defence. Jumman v. state of punajb AIR 1957 SC 469 The proper test for the applicability of this exception is whether the accused shows, since the onus is on him, under s. 105 of the Indian Evidence Act 19872, theat he acted solely out of the provocation generated by the heat of a sudden quarrel followed by a sudden fight. Bati Kunjami v. state 1996 Cr Lj 1431 (ori) (DB) The presumptive evidence of the charge of murder is permitted to be drawn under s. 114 of the evidence act has to be read along with the Important time factor Baijur v. state of Madhya Pradesh AIR 1978 SC 522 While drawing the presumption under section 114 of the Indian evidence act,1872 in robberycum-murder cases on the basis of recent possession of the belongings of the victim with the
Criminal Law Review Committee Eleventh Report, Cmnd 4991, Official records, London,UK

accused, the court must adopt a cautious approach and have assurances from all the angles that the accused not merely committed theft or robbery but also killed the victim. George v. state of kerala 2002 Cr. Lj 2031 (sc)

Blood stained Articles: the fact there was human blood on the clothes of the accused when he was arrested, may be taken ito consideration in determining his guilt in a murder case, but it cannot be regarded as a conclusive piece of evidence. Namdeo dualata dhavagude v. state of Maharashtra (1977) Cr Lj 238; Phoolsie v. state of Madhya Pradesh 1998 Cr Lj 3931 (MP); sandeep v. state of Haryana (2001) Cr LJ 1456 (sc) FACTS Medical evidence : Medical evidence plays an important role in a murder case. It corroborates the same unless it suffers from some inherent improbabilities or intrinsic infirmities. Shankar shridhar kavale v. state of Maharashtra 1998 Cr Lj 4491 (bom) FACTS

Witnesses as bentham said, are the eyes and ears of justice. Such evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the established facts the credit of the witnesses, consistency with the account of the other witnesses held to be creditworthy etc. then the probative value of such evidence becomes eligible to be put into the scales for a cumilative evaluation. RAmkant Rai v. madan rai 2004 Cr L 36 (SC) In Birpal singh V. state of Uttar Pradesh AIR 1977 SC 2083, the court held in appreciation od evidence, the court should see wether the prosecution case and its evidence suffers from such infirmities that the accused cannot be justifiably convicted. When there is enough material to support the inference that it might have happened in the manner alleged by the defence, the prosecution evidence has to be scanned and sifted in the light of the defence contention. Antony v. state of kerala (1960) Ker Lj 73 The court should not miss that failure on the part of the prosecution to produce an important eyewitness which would give the accused the benefit of optional presumption under s. 114 of the Indian evidence act, 1872, and to infer that if such witness had been produced, it would have defeated the prosecution case. Sawal Das v. state of bihar AIR 1974 SC 778 Two important considerations for evaluating evidence of eye witness have been evolved by the courts: a. Whether, in circumstances of the case, it was possible for the eyewitness to be present at the scene or their explanation for their presence at the scene can be accepted; b. Whether there is anything inherently improbable or unreliable in their evidence.

Criminal Law Review Committee Eleventh Report, Cmnd 4991, Official records, London,UK