INDIAN PENAL CODE, 1860:

IPC, 1860 came into force on 6^th October 1860. IPC is drafted by Lord Macaulay.

Jurisdiction and its Kinds: Jurisdiction:  Under IPC the term Jurisdiction means the power of a criminal court to try a person for an offence. Under IPC we have 03 kinds Jurisdiction They are: 1) Personal 2) Extra Territorial 3) Admiralty.

The Expression computer resource shall have same meaning assigned to it in s.2(1)(k) of Information Technology Act,2000

Mensrea under IPC and other laws: The four essentials to constitute offence are:

i) A Human Being        ii) Guilty intention      (iii) Actus reus, illegal act or omission and      (iv) injury to another human being.

Actus non facit reum nisi mens sit rea’.The meaning of the term is that intent and act must both concur to constitute the crime. Physical element and mental elements are the two tests of criminality.  No act of the person was punishable unless the same is done with evil intent. Though the word mensrea is not expressly mentioned anywhere in the IPC, it is implied through various words. They are fraudulently, dishonestly, voluntarily, rashly, negligently, intentionally and knowingly.

Which stage of an offense is punishable under IPC?

Ans: For every crime there are four stages.

They are:    1) Intention       2) Preparation       3) Attempt      4) Actual commission.

Stage- I: Intention: This Stage alone is not punishable.

Stage-II: Preparation: This stage is punishable only in three circumstances.

The 03 offences provide punishments for the preparation are:

1) Preparation to wage war against the Government of India (s.122)

2) Preparations to commit depredations on territories which are in alliance with the government of India (s.126)

3) Preparation to commit Dacoity (s.399).

Stage-III: Attempt: The third stage or attempt is always punishable. The offences dealing with attempt are divided into three groups:

        i) Offences in which the commission & attempt to commit an offence are dealt with in the same section. Ex: Waging war (s.121), Sedition (s124-A) Dacoity (s.391) etc.

       ii) Offences in which separate specific punishments are prescribed.

Ex: Attempt to commit murder (s.307) Attempt to commit culpable homicide(s.308).

Attempt to commit to suicide (s.309)

     iii) All attempts which are not coming under the above two classes are made punishable as per section 511.

Important Explanations but not defined under IPC: 

Fear: an Unpleasant emotion caused by the threat of danger or pain.

Insult: Abuse in words or action.                  Annoy: Make slight angry.

Intimidate: Frighten into doing something.   Harm: Deliberate Injury.

Reputation: The opinion generally held about someone or something.

Modesty: Not showing off the body.   Motive: A person’s reason for doing something.

Deception:   The act of deceiving.

Deceive: Cause to believe something false or giving misleading impression.

Important Explanations – defined under IPC: 

Hurt: Causing bodily pain, disease or infirmity to any person is said to cause hurt (S.319).

Injury: Any harm whatever caused illegally to any person in body, mind reputation or property (S.44).  Intention:  The operation of motive into reality.

Knowledge: Possession information about anything.

Voluntarily: Intentionally or knowingly (S.39)

Dishonestly: Causing wrongful loss or gain (S.24)

Fraudulently: Deception + Injury (S.25).

Negligently: Not taking proper care and caution or precaution required by law.

Rashly: Doing an Act over hastily.

Good Faith: An act done with due care and caution (S.52).

Reason to believe: Sufficient cause to believe (S.26).

S.6: Every offence Under IPC must be read along exceptions mentioned under Chapter IV of IPC. It talks about general exceptions. Thus whenever we study an offence, if offence is committed under the conditions or situations mentioned under this chapter, such accused is exempted from criminal liability.   This rule applies not only every offence but also to every penal provision and every illustration.

S: 10: (i) Man: the word “man” denotes a male human being of any age.

(ii) Woman: The word “woman” denotes a female human being of any age.

 S: 11: Person: The word “person” includes any company or association or body of persons, whether incorporated or not.

 S: 14: Servant of Government: Any officer or servant continued, appointed or employed in India by or under the authority of Government.

 S: 17: Government: Central Government or the Government of a state.

 S: 18: India: India means the territory of India excluding the State of Jammu & Kashmir.

 S: 19: Judge:  The following any one can be called as Judge:

Any person who is officially designated as a judge   or

Any person, who is empowered by law to give, in any legal proceeding , civil or criminal,

a definitive judgement  or If such judgement which, if not appealed against, would be definitive or a judgement which, if confirmed by some other authority, would be definitive.

Ex: A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal is a judge.

A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another court is not a judge.

S: 20: “Court of Justice”: A judge or body of Judges who is empowered by law to act judicially alone.

 S: 21: Public servant: The term public servant is defined in section 21. The following are public servants:-                          1.  Commissioned Officers in Military, Naval or Air force, Every Judge.                                                                                    2. Officer of a Court of justice.                                                                                                                                                              3. Arbitrator.                            4. People empowered to place or keep any person in confinement.                                        5. Peace officers.                     6. Miscellaneous Officers of Govt.                                      7. Officers of local bodies.             8. Persons connected with elections.             9. Persons in the service or pay of the Govt or local authority or corporation or govt companies

 S.22: Moveable Property: The words moveable property is intended to include corporeal property of every description, except land &things attached to the earth or permanently fastened to anything which is attached to the earth.

S: 29: Document: The substance used for expressing or describing anything by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

S: 30: Valuable security: A document, in which any legal right is created, extended, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal disability or has not a certain legal right.

 S: 31: “A Will”: The words ‘a will’ denote any testamentary document.

Joint liability or constructive liability: This is discussed in S.34 to 38 IPC. In order to fix criminal liability of person connected with an offence, law basing on their physical or mental act or omission certain principles explained under these sections.   Under IPC the term Act includes illegal omission also.

 S.34 says: All persons are criminally liable even if the offence is committed by any one of them provided there is a prior meeting of mind. Thus, physical presence of all accused is not necessary to fix up criminal liability on all. Barender Kumar Gosh v. King Emperor

S.35 fix criminal liability on all persons equally though there can be no prior meeting of minds. However, it is necessary that all persons must present at the time of offence and does their act with same or similar criminal knowledge or intention.

S: 36: If certain effect is caused by an act or by omission, is an offence. It is also an offence if the effect is caused partly by act or partly by omission.

S.38 says if there is no such same or similar intention or knowledge each of the offender can be prosecuted to the extent of their criminal liability.

S.37 says if the offence is occurred due to co-operation and they also participated in the commission of the offence both are equally liable for the offence.

 S: 40: Offence: denotes a thing punishable by this code.

 S: 41: Special law: A special law is a law applicable to particular subject.

S: 42: Local Law: A local law is a law applicable only to a particular part of India.

 S: 43: Illegal: 1) Offence or 2) An act or omission which is prohibited by law or 3) Anything which furnishes ground for civil action. The term “legally bound to do” includes illegal on part of the person to omit.

 S: 44: Injury: The word injury denotes any harm whatever illegally caused to any person in body, mind, reputation or property.

 S: 45: Life: The word life denotes the life of a human being, unless the contrary appears from the context.

S.46: Death: Death denotes death of a human being.

S: 47: Animal: The word ‘animal’ denotes any living creature other than a human being.

S: 48: Vessel: The word vessel denotes anything made for the conveyance by water of human beings or of property.

S: 49: “Year “Month”: whenever the word “year” or the word “month” is used, it is to be understood that the year or the month is to be reckoned according to the British Calendar.

 S: 51:Oath: Any solemn affirmation made before a public servant to be used for the purpose of proof, whether in a court of justice or not.

S: 52A Harbour: Except in S.157 & in S 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word “harbour” includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means, whether of the same kind as those enumerated in this section or not, to evade apprehension.

Write a note of General Exceptions? 

Write a note of Law of consent as ground for exemption from Criminal Liability?

Write a Note on Right of Private Defence?

Ans: It is dealt under S.96 to 106:

Write a short note on abetment?

Ans: It is dealt under S.107 to 120:

 Difference between Abetment by conspiracy and Criminal Conspiracy:

 Distinguish between Common object & Common Intention?

Ans: S.149 & 34 IPC:

Write difference between Rioting and Affray:

OFFENCES RELATING TO HUMAN BODY:

Culpable homicide means killing a human being by another human being. All murders are culpable homicide but all culpable homicides are not necessarily murders.

There are two classes of culpable homicides:

   a) Culpable homicide amounting to murder. It is known as Murder.

   b) Culpable homicide not amounting to murder. The difference between both (a & b) lies in the degree of criminality as manifested by the act. In murder, there is greater intention or knowledge than culpable homicide not amounting murder. Culpable homicide not amounting to murder is dealt under S.299 of the IPC and under S.304 of the IPC.

There is a third form of culpable homicide where death follows from rash or negligent act as such as crushing a man to death by rash or negligent driving.

The landmark cases which explained the distinction between Culpable homicide and murder are: Reg. v. Govinda. Virsa Singh v. State of Punjab

The criterion to inflict death penalty is laid down in Bachan Singh v State of Punjab.

Write a note on exceptions laid down under S.300IPC?

Ans: Culpable Homicide not amounting to murder provided u/s 300 IPC

Exception I: Grave and sudden provocation: Culpable homicide is not murder if the offendor, whilst deprived of the power self-control by grave & sudden provocation, cause death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:

First: that the provocation is not sought or voluntarily provoked by the offendor as an excuse for killing or doing harm to any person.

Secondly: That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of powers of such public servant.

Thirdly: That the provocation is not given by anything done in exercise the lawful exercise of the right of private defence.

Explanation: Whether the provocation was grave & sudden enough to present to prevent the offence from amounting to murder is a question of fact.

Exception II: Right of Private Defence: Culpable homicide is not murder if the offendor, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than necessary for the purpose of such defence.

Exception III: Culpable homicide is not murder if the offendor, being a public servant or aiding a public servant acting for the advancement of public justice exceeds the powers given to him by law, and causes death by doing an act which he in good faith, believes to be lawful and necessary for the due discharge of his duty such public servant and without ill-will towards the person whose death is caused.

Exception IV: Sudden Fight: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.

Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception V: Consent: Culpable Homicide is not murder when the person whose death is caused, being above the age of 18 years, suffers death or takes the risk of death with his own consent.

Transfer of malice: The offence is complete as soon as any person is killed. It is immaterial if the person whose death has been caused is not the person whom the accused intended to kill. It is clear from Illustration (a) to S.299 of IPC. This is called as transfer of malice.

What is S.304 IPC?

Ans: S.304 IPC: S.304 IPC provides the punishment for culpable homicide not amounting murder. There are two parts to S.304 of the IPC.

1. a) Where the act is done with intention of causing death or such bodily injury as is likely to cause death (Part-I); and
2. b) Where the act is done with the knowledge that is likely to cause death without any intention to causing death (Part-II).

Write a short note on Dowry death?

Ans: Dowry death S.304B: If the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’ and such husband or relative shall be deemed to have caused her death. This section is supplementary to S.498A.

Causing death by Rash or negligent Act: S.304A: Where the act is in its criminal nature the section has no application. Causing death of any person by doing any rash or negligently act, not amounting to culpable homicide is punishable with two years imprisonment or fine or both. S.304A punishes the cause of death by negligence. The provision of this section apply to cases where there is no intention to cause death and no knowledge that the act in all probability would cause death.

1. Rash means over hasty act done without due deliberation and caution
2. Negligently means party fails to comply with a legal obligation and breaks a positive duty and does not do an act which is his duty to do.

Write a note on Property offences?

When extortion is robbery? Difference between robbery based on theft and extortion:

Ans: In robbery based on extortion the entire menace (threat or danger) is precedes the delivery of property.  In robbery based on theft the use of violence may be before or after the delivery of property.

In sum: Robbery = Theft + violence or fear of instant violence.

Robbery: Extortion + Presence of offender + fear of instant violence + immediate delivery.

Violence: death, Instant (Sudden) Death or Wrongful restraint or hurt.

Difference between Robbery and Dacoity: Sections 390 and 391 IPC: All Dacoities are Robberies, but all Robberies are not Dacoties. When Robbery is committed or attempted to be committed by 05 or more persons then Robbery becomes Dacoity. Therefore Robbery can be committed even by single person, while for Dacoity at least 05 persons are required.

Stolen property: The property, the possession of which has been obtained by theft, extortion, robbery, dacoity or property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed is termed as stolen property, if it comes into the possession of the person, who is legally entitled to the identity of stolen property should not lost after coming into the possession of the accused. So long as the article remains the same in substance though, it is altered doesn’t cease to be stolen property.

Cheating: S: 415: Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person to consent that any person shall retain any property or intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived an d which act or omission could likely to cause damage or harm to that person in body, mind, reputation or property.

Explanation: A dishonest concealment facts is a deception within the meaning of this section.

Comment: There are two parts u/s.415. Part-I deals only property. Part-II deals injury. Thus it can be body, mind, reputation or property. In the first part, loss of property is either due to dishonest or fraudulent action. In the second part the injury is sustained due to intentional inducement by act of deception.

Part-I: Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person to consent that any person shall retain any property is called as an act of cheating.  It is punishable u/S.420 IPC.

Part-II: Whoever, intentionally induces another to do an act or omission and as a result of such deception, victim sustained damage, harm to mind, body or reputation or property is called cheating. It is punishable u/S.417 IPC.

Difference between Cheating & Extortion: S.415, 383 & 384 IPC: The primary object offence of cheating and extortion is wrongful gain of property. In both the cases property is removed with the consent of the owner. However in cheating the consent is obtained by fraud, whereas in extortion the consent is obtained by fear.

Mischief: S.425 IPC defines Mischief. It says  Whoever, with intent to cause, or knowing that he is likely to cause, wrongful  loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof and thereby destroys or diminishes its value or utility or affects it injuriously commits mischief.

Explanation-I: It is not essential to the offence of mischief that the offender should intent to cause loss or damage to the owner of the property injury or destroyed. It is sufficient if he intends to cause or knows, that he is likely to cause, wrongful loss or damage to any person or not.

Explanation 2.- Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.

Example: Aneel voluntarily throws into a river a ring belonging to Shekar, with the intention of thereby causing wrongful loss to Shekar. Aneel has committed mischief.

Forgery: S: 463: Whoever makes a false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed commits forgery.

Forgery= False Document (Full or Part): Fraudulent intention + Damage or injury (or support any title or claim or part with property of any person) + to any person or public.

Criminal trespass (S.441): Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby intimidate, insult or annoy any such person or with intent to commit an offence is said to commit C.T.

House trespass (S.442): Whoever commits C.T. by entering into or remaining in any building, tent or vessel used as a human dwelling, tent or any building used as a place of worship, or as a place for the custody of property, is said to commit H.T. The introduction of any part of the C.T’s body is sufficient to constitute H.T.  

Lurking House Trespass: S.443: If any person commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit “lurking house-trespass”. If such Lurking house-trespass is committed after sunset and before sunrise it is called “lurking house-trespass by night” (S.444).

House Breaking: Section 445 IPC: A person is said to commit house breaking who commits house trespass, if he effects into the house or any part of it in any of the six ways hereinafter described; or if being in the house or any part of it for the purpose of committing an offence; or having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say:

1. By entering and quitting through a passage made by himself
2. By entering or quitting by opening any lock
3. By entering and quitting by opening a passage by any means which the occupier has not intended.
4. By entering and quitting through a passage not intended by any person other than the offender for human entrance or through any passage through which he gains access by scaling or climbing over any wall or building.
5. By entering and quitting by using criminal force or committing an assault or threatening any person with assault.
6. By entering and quitting any passage by unfastening the passage.

Perjury (False evidence) (S.191): To constitute offence under this section following conditions are required to be fulfilled: A person must be legally bound by an oath or by an express provision of law to state the truth or to make any declaration upon any subject but he makes a false statement, knowing or believing it to be false or does not believe to be true and he is said to be giving false evidence. Ex: Aneel in support of just claim which Shekar has against for one Rs100/-, falsely swears on a trial that he heard Shekar admitting the justice of Shekar’s claim. Aneel has given false evidence.

Fabricating False evidence: S: 192: A person is said to be fabricating false evidence if he  (i) Causes any circumstances to exist  (ii) Makes any false entry in any book or record (iii) Makes any documents containing a false statement intending such circumstances false entry or false statement may:(a)appear in evidence (b) judicial proceeding or (c) a proceeding taken by law before public servant or an arbitrator and causes in  such proceeding is to form an opinion upon evidence to entertain an erroneous opinion touching any point material to the result of such proceeding.

 S.201 IPC: To establish charge it prosecution establish that accused knowing or having reason to believe that such an offence had been committed, and with the intent to screen the offender from legal punishment and caused the evidence thereof to disappear.

S.153: Wantonly giving provocation with intent to cause riot.

S.153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

 S.153AA: Punishment for knowingly carrying arms in any procession or organising or holding or raking pat in any mass drill or mass training with arms.

S.510 IPC:  Misconduct by a drunken person in public place. The punishment is one day.

S.303IPC: It is not declared unconstitutional. It is under eclipse: Mithu v. State of Punjab. This section says person who is under sentence of imprisonment for life, commits murder shall be punished with death.

S.511: Attempt to commit offence: The punishment is for a term which may extend to ½ of the imprisonment for life or ½ of the longest term of imprisonment provided for the offence or with such fine as it is provided for the offence, or with both.

Write a note on Offences relating to marriage?

Ans: Contract Act, 1872 applies and as a corollary non-compliance of the same makes the contract void, voidable or illegal. Apart from Contract law, other personal laws prescribe certain conditions for entering to contract of marriage and they must also be complied with.  In event of violating the same law prescribe remedies. Similarly, Indian penal code also offers certain penal remedies. They are dealt under S.493 to 498: They are as follows:

(1) Invalid Marriages S.493 & 496,        (2) Bigamy (S.494 and S.495)    (3) Adultery (S.497)

(4) Criminal elopement (S.498)              (5) Cruelty (S.498A)

Marriage is a result of contract between two parties. As such, the rules prescribed under

Criminal intimidation: S. 503 defines criminal intimidation. Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do or omit to do any act which that person is legally entitled to do, as the means of avoiding this execution of such threat, commits criminal intimidation. Ex: Aneel for the purpose of inducing Deepak to desist from prosecuting a civil suit threatens to burn Deepak’s house. Aneel is guilty of criminal intimidation.

Intimidate: Putting a man into fear with a view of inducing him to enter into a contract or to money or to do or to abstain from doing some act.

Defamation:

S.499 IPC defines Defamation and S.500 prescribes punishment.

S.499 has four explanations and ten exceptions.

S.499 says If a person imputes anything to another with intend to harm the reputation of such other person is said to be defamation. Such imputation can be done either spoken or intended to be read, or by signs or by visible representations, makes or publishes.

Explanations: The First explanation deals with defamation of a deceased man and the 2^nd one deal with defamation against company.

The 1^st explanation says imputing anything to deceased person is defamation in the following circumstances:

1. a) If imputation harms the reputation of that dead person, if living.
2. b) If it is intended to be hurtful to the feelings of his family or other relatives.

The 2^nd explanation says if an imputation is made against a company or an association or collection of persons it amounts defamation.

The 3^rd explanation says an imputation in the form of an alternative or expressed ironically, may amount to defamation. (Innuendo).

The 4^th explanation says in order to constitute defamation it must lower the reputation of alleged aggrieved in the eye of public or persons known to him.

Exceptions: There are ten exceptions to the section. These exceptions provide privileges available in case of defamatory statements and burden to prove them, lies on the person who claims the benefit.

Ex.1: Imputation of truth which public good required to be made or published.

Ex.2: Public conduct of public servant

Ex. 3: Conduct of any person touching any public question

Ex. 4: Publication of reports of proceedings of courts

Ex.5: Merits of cases decided in courts or conduct of witnesses or other concerned

Ex.6: Merits of public performance

Ex.7: Censure passed in good faith by the person having lawful authority over another

Ex.8: Accusation preferred in good faith by person for protecting of his others interests.

Ex.9: Imputation made in good faith by person for protection of his or others interests.

Ex.10: Caution intended for good of person to who conveyed or for public good.

Problems and Solutions:

PUNISHMENT:

 What is the difference between Conviction and Sentence?

Ans: The finding given by the court stating that accused committed the offence is called Conviction.  The punishment given by the court is called as Sentence.  Conviction is a technical process. Sentence is not technical affair and judge must act like a social and legal scientist. The sentence must be awarded basing on physical and mental social, economic, cultural status of the accused, nature of offence, mode and manner of committing offence.

What are the different kinds of Punishments provided under IPC?

Ans:S.53: The punishments to which offenders are liable under the provisions of this Code are:- 1) Death, 2) Imprisonment for life, 3) deleted 4) Imprisonment, which is of two descriptions, namely:- (1) Rigorous, that is, with hard labour; (2) Simple; 5) Forfeiture of property; 6) Fine.

What is the meaning of the term life under IPC?

Ans: As per S.45 IPC defines Life. The term life means complete life of the individual. Inflicting life imprisonment is one of the modes of punishment. Thus imprisonment of life would ordinarily mean imprisonment for the full or complete span of life. Premature released is governed by S.55 IPC &S.433 (b) Cr.P.C 1973.

According to S.55 the State Government has power to commute (convert) the sentence of imprisonment for life to punishment for imprisonment of either description for a term not exceeding 14 years without the consent of the prisoner.

Under S.57, though the term twenty is used it is only for the purpose of calculating fractions of terms of punishments i.e., Attempt to commit offence which is punishable with life imprisonment.  Unless the sentence is commuted or remitted by the appropriate authority u/s 55 of the code or u/s Cr.P.C. a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison.

What is the period of imprisonment that can be imposed in the event of non-payment of fine?

Ans:

If the convict fine any time, he can be released and fine would be reduced proportionately.

How Solitary confinement is awarded?

Ans: Generally, when court imposes sentence of imprisonment it is deemed that it is simple and without solitary confinement. However, if it is specified as rigours or solitary convict shall undergo such kind of punishment only.  The solitary confinement in no case shall exceed three months.

S: 74: Limit of Solitary Confinement: As per this section Solitary Confinement shall in no case exceed 14 days at a time. If imprisonment awarded more than three months solitary confinement shall not exceed seven days in any month.

Write note on Sentencing power of various criminal courts?

 What is quantum of punishment to be awarded in case offender is punished for the offences mentioned under C.XII or CXVII of IPC?

Ans: As per S.75 IPC, person who committed offence mentioned under these chapters for subsequent offence, he is liable to be punished with imprisonment for life, or to imprisonment of either description for a term which may extend to 10 years.

However, it is necessary that the punishment for the first offence and second offence prescribed under law shall be three years or more.

XII: Offences relating to coin and Government stamps

XVII: Offences against property.

S: 71: Consists of four paragraphs:

Para 1: It deals with all the acts of an offendor which constitute together only an offence although each of the individual acts also constitutes the same offence.

It refers to illustration (i) of 220Cr.P.C. In such cases, the offendor can be punished only for an offence.

Ex-I:   A number of blows on one person.

Ex-II: Accused stole property at night belonging to different persons from the same room of a house; it was held he could not be sentenced separately as for two offences of theft.

 Para:II: A single transaction may give rise to either

(a) Several offences of different character, each complete in itself and distinct from the other.

Ex: Criminal breach of trust and falsification of accounts; House breaking and adultery.

(b) Several offences of the same character but affecting different persons.

Ex: A single gunshot fired with it, injured two or more person, where different persons are injured, grievous hurt being caused in one case and simple hurt in others, it is competent for the court to impose separate and cumulative sentences. (a,f,&g illustrations of S.220)

Para:III: It corresponds to S.220(4) Cr.P.C. It deals with plurality of acts and applies to cases in which one or more of the acts of the accused in a transaction constitute one offence but all the acts together or combined give rise to different offence.

The same series of acts may constitute different offences. All may be charged, but only one offence can be regarded as committed for the purpose of inflicting punishment.

Ex: Where as persons set a fire to a ware house, here his act is an offence u/s 435 &also u/s 436, and though he may be charged for both, but he cannot be punished for more than one of these offences.    Similarly, for driving on a public road so rashly so as to endanger human life and causing hurt, accused cannot be punished for both the offences.

Whether court can impose sentence in default of payment of fine?

Ans: Yes, as per s.30 the court of a magistrate may award such term of imprisonment in default of payment of fine as is authorised by law:

Provided that the term: – It shall not be excess of the powers of the Magistrate u/s 29 of the code. Where imprisonment has been awarded as part of the substantive sentence, it shall not exceed 1/4^th of the term of imprisonment which the magistrate is competent to inflict as punishment for the offence. The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the magistrate u/s 29.

What is the mode of sentences in case of conviction of several offences at one trial?

Ans: S.31 talks about Sentence in cases of conviction of several offences at one trial: When one person is convicted at one trial of two or more offences, the court may, subject to the provisions of S.71of the IPC, sentence him for such offences, to the several punishments prescribed therefore which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court direct that such punishments shall run concurrently.

It is not necessary for the court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offendor for trial before a high court.  Provided that in (i) no case shall such person be sentenced to imprisonment for a longer period from 14yrs (ii) the aggregate punishment shall not exceed twice the amount of punishment which the court is competent to inflict for a single offence. Thus section 31 enhances the ordinary powers given to Magistrate u/s 29 Cr.P.C.  For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.

Explanation: At one single trial, accused is charged with more than one offence (like S.324 IPC). In such case he is permitted to impose six years imprisonment though he is competent to inflict punishment of imprisonment not more than three years as per S.29 Cr.P.C. In such case it is also not necessary for such magistrate to send the file to superior magistrate for inflicting more punishment.

However, magistrate is under an obligation to report the matter to superior magistrate if the magistrate has to impose imprisonment more than the twice the punishment, which he is authorised to inflict (i.e, more than six years).

Ex: If the Magistrate has to impose imprisonment for a period of more than six years, he has to send the file to Chief Judicial Magistrate.

INDIAN EVIDENCE ACT, 1872:
IEA is enacted in the year 1^st Sept-1872. It is drafted by Sir James Fitzjamen Stephen. IEA is not applicable to proceedings before tribunals and arbitrators and departmental inquiries. IEA is strictly applicable to judicial proceedings in courts. A proceeding is said to be Judicial if its object is to determine the legal relations between one person and group of persons. Further, to make it as judicial proceeding Judge must act in a judicial capacity.

IEA is applicable to both civil & criminal law. However, the quantum of proof in either case is different. In Civil cases it is preponderance of Probability and criminal it is beyond reasonable doubt. Apart from that S.52 and 55 dealing with character of parties and S.115 to 117 dealing with estoppel are exclusively applicable to Civil law only. The term evidence means to show clearly, to discover clearly, to ascertain, to prove. Evidence also means to make clear to the sight. Affidavit is not evidence under IEA unless it is permitted under some other law. They are treated as evidence if the deponent is subjected to cross-examination.

General Principles: IEA primarily talks about following five issues:

1) Relevancy     2) Admissibility      3)Competence

4)Burden of Proof    5)Credibility    6) Presumptions

1) Relevancy:          Facts that can be used to prove a case

2) Admissibility:     Persons with whose aid relevant facts can be placed before court.

3) Competence:       Mental capability of understanding questions and gives rational answers.

4) Burden of Proof: The obligation to prove a case.

5) Credibility:          The probability of relevant and admissible evidence being true.

6) Presumptions:    Basic values or presumptions about certain facts of life court shall have.

1) Relevancy: Facts that can be used to prove a case. The fact may be proved with the aid of evidence, admissions and judicial notices. The proof of facts before the court must be with the aid of facts listed under S.6 to 55 of Indian Evidence Act. It is also known as theory of Relevancy. No exceptions. The proof of facts before the court must be with the aid of facts listed under S.6 to 55 of Indian Evidence Act. Those facts are hereunder:

    2. Admissibility: Persons with whose aid relevant facts can be placed before court. The 2^nd qualification is that witness must be through direct evidence. Direct evidence refers to facts perceived by one’s own sense. It means to act as witness before court one must directly perceive them with his any of the five senses. However the following are the exceptions to this broad general rule. They are based are certain public policy considerations. They are: Resgestae; Admissions and confessions; Statements U/S32 and 33; Statements in Public documents; Opinion of experts.

Direct evidence can be given either orally or in documentary form. However if the law requires transaction to be in writing or oral terms are reduced to writing, oral evidence is not permitted (s.91, 92). Even this documentary evidence that can be produced must be through original (Primary evidence) unless law permits secondary evidence. Primary evidence means original document itself. Another important rule connected to this point is that contents of documents must be proved   with the aid the person who is author or executants or scribe or witness to the document or person acquainted with the facts of the document, Expert. In case of public document or document of thirty years old any person can produce and prove the facts contained in it.

3) Competence:  Persons though admitted to speak facts they shall qualify test laid down under S.118 to S.132. The first and foremost qualification to be a witness is mental capability.  In other words witness must be capable of understanding questions and give rational answers to those questions and not expressly prohibited by law not to give evidence.  Mental capability and not prohibited by law are alone can be witness before court.

 4) Burden of proof:  The person seeks judgment in his favour for a threatened invasion or invasion of his right, burden lies to prove the case through relevant facts, admissible and competent persons in a credible way.  The consequence of failing to prove the same is dismissal of the case.  There are certain exceptions to this rule. They are: presumptions, estoppel, admissions, judicial notice, Facts admitted. They are exceptions as they relieve the party’s burden to prove certain facts subject to certain qualifications.

 5) Credibility:  The term credibility refers to value of evidence. The plain reading of S.3 of the spells out that mere proof of essential elements of right & liability with the aid of relevant facts, admissible and competent persons wouldn’t result proof of fact.  The section emphasize that court shall upon seeing the matters before it believe the same to conclude that a fact is said to be proved.  Thus evidence before the court must meet another test is called credibility. In other words evidence must be convincing, logical, consistent, coherent, corroborative, no contradictions and free from doubts.  The last chapter of IEA offers various tools to enhance or diminish the credibility of the facts showing elements of right or liability.

  6) Presumptions: Demanding a party to adduce evidence on an every trivial fact or logical consequence of a proved fact and which is quite common to notions of civilized way of living, hardly have any rationality. Hence, Act directs court to possess certain values or perceptions or presumptions with respect to certain facts of life. They are listed under S.105 to 114 A IEA. In such factual scenario court shall not demand evidence.

 THEORY OF RELEVANCY:

“PROSECUTION FAILED TO PROVE THE GUILT OF   ACCUSED BEYOND REASONABLE DOUBT”.

This is the usually ending sentence we find in the judgments of Criminal Courts.

What is the inference we can draw from this Sentence?

Ans: They are as follows:

• There is no evidence on record                     2) Inadequate evidence
• I don’t know whether offence is committed   3)  Accused didn’t commit offence

4)  Accused committed the offence but didn’t meet Standard of Proof.

The above inferences suggest that to prove a case it is not enough to prove elements of offence, we have to prove something else also.  This is also evident from the word called ‘Proved’ defined under Evidence Act. Therefore, it is necessary for prosecution or plaintiff to make story credible, logical, consistent, and coherent, trust worthy, corroborative, truthful, and free from doubts, no contradictions and discrepancies

Proved: S.3 of IEA defines proved. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

A fact is proved: Matters + Belief.  Now the question is : what is Matters?

The term matters: Evidence and other facts.

Evidence (S.3): Oral or documentary statement made on oath before court or any public authority. All facts can be proved by oral evidence except the contents of a document.

Evidence means and includes—

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence : S.59, 60, 63(5), 91 Explanation, 92-Proviso 2 & 3, 119 and S.144 Explanation deal with oral evidence.

(2) All documents including electronic records produced for the inspection of the Court such documents are called documentary evidence: S.61, 62, 65, 91, 92 &145deal with documentary evidence.

The following are not evidence as they are not on oath:

        a) A confession or statement of the accused (S.239, 251, 313, 164 Cr.P.C)

       b) Demeanor of witness (S.280 Cr.P.C),

       c) Local investigation or inspection (S.310Cr.P.C)

      d) Facts judicially noticeably (S.56)              

      e) Material objects (Criminal rules of Practise).

Fact: S.3 says Fact means and includes:-

(1) Anything, state of things, or relation of things, capable of being perceived by senses.

(2) Any mental condition of which any person is conscious.

Ex: (a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) Any mental condition of which any person is conscious.

Fact in issue: S.3 of IEA defines fact in issue.

Fact in issue: Any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceedings, necessary follows. It means matter under controversy.

Document: S.3 of IEA defines document. A document means any matter expressed or recorded or any substance by means of letters, figures or marks. Documentary evidence means all documents including electronic records produced for the inspection of the court.

Ex: Caricature, Currency note, photograph, inscription on rocks, marking on trees, Tatoo mark on human body. White of paper is not a document.

Why we go to Court?  What essentials are required to be proved before court of law?

Ans: Party goes to court to establish his legal right or liability of another. Therefore, party approaching the court shall fundamentally prove essential elements of right or liability.

S.13, 14 & 15 of the IEA talks about essential elements of right or liability.

Consider Hypothetical situation:

Raju is a Hindu and he has one son by name Arjun. Raju used to work as a clerk in Jr.Civil Judge Court, Ranga Reddy and he took his last breath on 12/1/14. During his life time he used to save his earnings and at the time of his death he is having an amount of Rs.10,000/- in SBH Ranga reddy District Court branch. Upon his death Arjun claimed money lying in the bank by approaching Bank Manager. Arjun said to Manager that he being the CLASS-I legal heir entitled to property and demanded for payment of amount to him. He also showed WILL executed by his father in his favour. At that time one Ragini claiming she to be Second wife approached manager and demanded to give money to her. The Manager refused to act upon and demanded for Succession certificate. It is to be noted Arjun mother died long back.  Arjun filed case before Jr.CJ, R.R. Dist.

Relevant: Facts that can be used to prove a case.

Facts relating to right or custom in question (S.13) : If there is a question as to the existence of any right or custom S.13 makes admissible: (1) Transaction (2) particular instances.

S.13 (a) dealing with transactions says that where the question as to whether a certain right or custom exists, any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence , may be proved.

S.13 (b) dealing with particular instances says that where the question is as to whether a right or custom exists, particular instances in  which the right or custom in was claimed, recognized, exercised or in which its existence was disputed, asserted or departed from, may be proved.

Facts relating to state of mind, body or bodily feeling (S.14):

This section renders all facts showing state of mind, body or bodily feeling relevant only when the existence of any such fact is in issue or relevant facts.

This section is based on the principle that when the intention of the accused is a relevant fact, evidence of similar transactions both prior and subsequent to the alleged offence is admissible as evidence of intention.

The principle, on which evidence of similar acts is admissible, is not to show that, because the accused defendant has committed an offence, he would therefore be likely to commit another but to establish the animus of the act and rebut by anticipation the defenses of ignorance, accident, mistake, or some innocent motive or intention.

S.15 is merely an application of the general rule laid down in S.14.  It is plain that this section is of assistance where the existence of a state of mind such as intention, knowledge, good faith, negligence rashness, ill-will or goodwill towards a person or the existence of a state of body or bodily feeling in issue.

S.15 is merely an application of the general rule laid down I S.14.  S.15 says facts relating to show whether the fact was accidental or intentional are relevant. This section picks out only those cases where the question is whether a particular act is accidental or intentional. Example.1: A sues B for the damages done by a dog of B. B knew it to be ferocious. The facts that the dog had previously bite X, Y, Z and same was complained to B are relevant u/S.14.

What is the need and necessity of S.6 to 11 of IEA as S.13, 14 & 15 of the IEA proves the elements of right or liability?

Ans: It is true proving elements of right or liability is enough. However, to make the proof of the right beyond any amount of doubt especially in view of standard laid down under S.3of the Act, it is always ideal to give forward and backward linkages for occurrence of fact in issue or any other relevant fact. Thus by taking aid of forwards and backward linkages we are making either     prosecution or plaintiff version credible, logical, consistent, coherent, trust worthy, corroborative, truthful, free from doubts and also avoid contradictions and discrepancies.  Now, let us turn to S. 6 to 11 IEA which help parties to give forward and backward linkages for occurrence of fact in issue or any other relevant facts:

      a) If such fact form part of the same transaction (S.6)

      b) If it is the occasion, cause and effect of the fact in issue (S.7)

      c) Facts relating to motive, preparation and previous or subsequent conduct. However, conduct must be accompany and explain act (S.8).

     d) S.9: Introductory Or Explanatory Facts

    e) S.10 : Things said or done by conspirator w.r.t common design

    f) S.11 : Inconsistent facts In this connection it important to remember that S.3 mandates mere

Explain the use of S.17 to 54 when S.7 to 16 already covered the field to prove a case?

Ans: S.17 to 54 of IEA offer various other sources to prove relevant facts contained in S.7 -16.

Whether previous confession statement made by the accused before courts can be used to prove a case against him?

Ans: Yes, they can be used under certain conditions and they are dealt u/S.25 to 30.

Under What Circumstances a former statement made by third person can be taken as evidence in the court of law?

Ans: It can’t be used as evidence unless he personally come and deposes before the court. However, under certain conditions like: he is dead or incapable of giving evidence or not found or can’t be procured with unreasonable delay, any person can give evidence of his former statement subject to condition laid down under S.32 & 33 of the Act.

Whether facts contained in documents can be used to prove case?

Ans: Yes, they can be used under certain conditions and they are dealt under S.34 to 39.

Whether Courts Judgments are relevant?

Whether Third Persons evidence is relevant?

Ans: It is relevant even though it is hearsay evidence provided they meet conditions laid down under S.45 to 51.

Whether Character evidence is relevant?

Ans: It is irrelevant except under certain situation. They are expressly dealt under S. 51 to 54.

Admissibility (S.59 & 60): All facts can be proved by way of oral evidence except the contents of documents. Oral evidence shall be direct. It means evidence shall be given by those persons who perceived with their own senses. Unless these people give evidence court is prohibited to treat the same as evidence to be taken into consideration. This is called admissibility rule. However there are some exceptions to this rule.   Exceptions to hearsay rule of evidence: a) Resgestae(S.6) b) Admissions and confessions c) Statements U/S32  d) Evidence given in judicial proceeding or before any person authorized to take evidence by law e) Statements in Public documents f) Opinion’s of experts.

The sections exempted from Hearsay rule are:

S.21, 22, 27 to 30 b) S.32, 33, 34 to 38, 40 to 42, 45.c) S51,53 and 54.

Facts which are need not be proved: The following facts are need not be proved :(a) facts which the court will take judicial notice (S.57) (b) facts admitted by parties by their pleadings (S.58) However the court may in its discretion require the facts admitted to be proved otherwise then by such admission.

Facts which court can take judicial notice: S.57 enumerates 13 facts, which the court is bound to take judicial notice. They are:

1. All laws in force in the territory of India.
2. Articles of War for the Indian Army, navy or Air Force.

    3.The course of proceedings of parliament of the U.K, of the constituent Assembly of India, of parliament and of the legislatures established under any laws for the time being in force in the state or in India.

4. The division of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette.
5. The commencement continuance and termination of hostilities between the government of India and any other State or body of persons.
6. The names of the members and officers of the court and of their deputies and sub-ordinate officers and assistance, and also of all officers acting in execution of its process , and  all Advocates, pleaders and  other persons authorized by law to appear or act before it .
7. The rule of the road on land or at sea

DOCUMENTARY EVIDENCE AND CLASSIFICATION:

Whether secondary evidence can be produced in the absence of primary?

The general rule is that document must be proved by primary evidence only subject to certain exceptions specifically given. This rule is stated in S.64. And exceptions are provided in S.65.

(a) When the original is shown or appears to be in the possession or power of the person against whom document is sought to be proved or any person out of reach of or not subject to the process of court or of any person legally bound produce it, when after giving notice as mentioned in S.66 such person doesn’t produce it.

(b) When existence of original have been is admitted in writing

(c) When the original had been destroyed or loss or cannot be produced

(d) When the original is not moveable                                                                                                                                          

(e) When original is a public document

(f) When the original consists of numerous accounts.

According to S.66 party before resorting to secondary evidence u/s 65 (a) a notice to produce the original must be served on the person in whose possession the original is. The purpose of this rule is to give adequate opportunity to produce the original in whose possession it is and thereby to produce the best evidence to prove the contents.  However no notice is required to produce secondary evidence in the following six mentioned cases. The parties can straight way produce without notice:

When the document to be proved itself is notice- When from the nature of the case, the adverse party must know that he will be required to produce it- When it appears or is proved that the adverse party has obtained the possession of the original by fraud or force-when the adverse party or his agent admitted the loss of the document-When the person is in possession of the document is out of reach of or not subject to the process of court.

Whether evidence can be given varying the terms mentioned in the document?

Ans: No, Section 92 says No oral evidence to contradict, varies, and adds or to subtract the terms of a document can be allowed. The section recognized superiority of a written proof over the verbal. However there are seven exceptions to this rule:

      i) Any fact which would invalidate any document or entitle any person to any decree or order relating thereto may be proved i.e. fraud, intimidation, illegality, failure of consideration.

     ii) Any separate oral agreement has to any matter on which the document is silent and which is not inconsistent with terms may be proved.

    iii) Any separate oral agreement, imposing condition precedent to the attaching of any obligation under any such contract, grant or disposition of property may be proved.

    iv) The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant, disposition of property may be proved, except where such contract or grant is required to be in wiring are has been registered .

    v) Any usage or custom by incidents not expressly mentioned in any contract or usually annexed such contracts may be proved, if they are not inconsistent with it express terms.

    vi) Fact showing the manner the language of the document to the existing facts may be proved.

    vii) Persons who are not parties to a document or representatives interest may give evidence of facts tending to show a contemporaneous agreement varying the terms of the document.

Write note General rules of Burden of Proof?

Ans: The term burden of proof indicates obligation to prove a case. The first four sections under Burden of Proof Chapter laid down certain basic rules to law of burden of proof.

Rules relating to Burden of proof:

Presumption: Presumption is an inference drawn by the court based on certain proved facts. The following table clearly explains the same. May presumptions are indicated in S.86 to 88, 90 & 114. Shall presumptions are indicated in S.79 to 85, 89 & 105. Conclusive proof is contained in S.41, 112 & 113.  It’s a short cut to Proof.

It is evident from S.101 to 105 IEA burden to prove a fact lies on a person whoever avers the same and his failure to prove the same would result not believing such assertion or fact. Now, can you list out circumstances under which though facts are averred and asserted by one but burden to prove lies on different person?

Ans:  The general rule is burden lies on that person who avers the fact but in the following factual scenario burden lies some other person. They are dealt under S.106 to S.114.

Write a short note on S.114 IEA?

Ans: The court merely because parties on either side fail to place evidence, it shall not remain silent and S.114 offers various presumption court is entitled to draw and act accordingly and reach truth.  However, such presumption as to existence of or happening of any fact shall be based on following considerations:

     a) Common course of natural events          b) Human conduct         c) Public and private business.

It must be noted that such presumption must arise basing on their relation to the facts of the particular case.

Write a note on Esttopel?

Ans: The following table explains basic rules relating to Law of estooppel.  

COMPETENCY AND COMPELLABILITY:

Who is a competent Witness? 

Ans: S.118 says every person is a competent to be a witness provided he is capable of understanding questions put to him and give rational answers to them. Even child, old age persons, sick person, insane persons, dumb persons are competent witness if they are capable of understanding questions put to him and give rational answers to those questions.

As per S.119 Dumb and deaf person can be witness and give evidence by way of gestures and signs or writing in court and whatever he gives is deemed to be oral evidence.

As per S.120 even the wife and husband are competent witness against or for the suit filed by either of the spouse, though, in the eye of religion wife and husband are said to be one and same.

Who can’t be compelled to act Witness? 

Ans: S.121 to 131 of IEA list out persons who shall not be compelled by court to give evidence even though they possess relevant and admissible and clinching evidence w.r.t matter under controversy. These prohibitions are based sound policy considerations.

 Article 20 says Accused can’t compel to be a witness against himself. However, as per S.315 Cr.P.C he can be competent defence witness. He can be called as a witness only upon his request in writing. Therefore, as per S.161(2) Cr.P.C any person who is giving statement to police in the course of investigation need not disclose anything if it exposes him to penalty or forfeiture of property as it violates A.20 of Constitution.  However, Such person is a witness before the court as S.132 IEA he shall speak even though it expose him to penalty or forfeiture of property but shall not be used as evidence to prosecute on the basis of whatever he testified before court of law.

Comment: Right to Silence or Testimonial compulsion: It is one of the foundation principles of Criminal Justice System that ‘no man shall be compelled to be a witness against himself’. Thus every person has to remain silence if in the event of speaking or giving evidence would expose him to criminal charge, penalty or forfeiture of property. This can be made known from A.20 (3) of constitution, S.161 (2) Cr.P.C and S.132 Indian Evidence Act, 1872. (As per S.132 witness before court is not excused from speaking, however, he can’t be charged for the same).

This was also held by the Supreme Court in Nandini Satpathy vs. P.LDani AIR 1978 SC1025. However, the only exception to this rule is judicial Confession

 S.133 says accomplice is a competent witness against an accused person and conviction is not illegal merely it because it is uncorroborated.

S.134 says there is no requirement of number of witness for proving a case. It is the quality that matters but no quantity.

Mode of Recording Evidence:

S.135 regulates the law and procedure and practice and the order in which witness to be produced. If there is no provision court has discretion to adopt its own procedure. Chapter XVII, XIX, XXI, XXIX of the Cr.P.C deals with manner of examining the witness. Generally, on whom the burden of proof lies examine his witness first. In criminal cases prosecution has right to begin the examination of witness. The other non-examined listed witnesses are not allowed to sit in the court hall when the witness is examined. And this is not a ground to refuse to examine the witness, who sat in the court hall. However, a note must make in the court hall.

S.136 court has power to ask the party under what section evidence offered by him is relevant.  As per S.136 the court has power to control the sequence of the production of the evidence in case the proof of one fact is dependent on the proof of another fact. Ex: Evidence in D.D.

S137 deals with examination of witnesses.

Examination-in-Chief: means the evidence elicited by the person who calls the witness.

Cross-Examination: The questions put by and evidence elicited by the adverse party from the witness is called cross-examination.

Re-Examination: Subsequent to the cross examination any questions pot to and answers elicited by party who called the witness is known as re-examination.

The Purpose of Examination-in-chief is to take such testimony for which is called by a party.

The Purpose of Cross Examination is to test veracity of witness by impeaching his credit.

The Purpose is to re-examination inconsistency which may have arisen during examination in chief and cross examination.

As per S.138 order of the examination is follows:      (a) Chief examination       (b) Cross-examination                                                             (c) Re examination.

As per section 139 of the IEA, a person summoned to produce a document doesn’t become a witness. He can’t be cross-examined unless and until he is been called as witness.

According to S.140 witness to character may be cross-examined and re-examined.

According to S. 141 a leading question is one which suggests the answer to the witness or which the person putting it wishes or expects to receive. A question itself contains answer. EX: “Did you not see the accused running with a blood-stained knife from the scene of murder?”

 Section 142 prohibits a leading question being asked in the examination-in-chief or in re-examination except with the permission of the court. Leading questions are permissible if they are: introductory in nature, undisputed facts, regarding matter which is already proved.

 Section 143 permits leading questions to be put in cross-examination. The term viva-voce means examination-in –chief.

 As per S.144 if a witness giving w.r.t matter contained in the document he must not be allowed to testify the same unless same is produced.

As per S.156 a witness can be questions w.r.t any other surrounding circumstances or events which witness observed at or near the place at which such relevant fact occurred for the purpose of corroboration.

Corroboration: According to S.157 the testimony of witness is allowed to be corroborated with the help of any former statements made by him in respect of the fact in issue or statement made at or about the time when the fact in issue took place or made before any authority legally competent to investigate the facts.

S.146 tells about tools to test the credibility of the evidence. This can be tested with following tools they are: a) Questions that test the veracity of a witness, b) Questions that establish the identity of the witness and position he holds in the life, c) Questions connected to the character of the witness.

Section 155 enables the party to give independent evidence witness for the purpose of impeaching the credit of witness so as to convince the mind of the court that the evidence of the witness in question is not safe enough to be relied on.

1. By receiving evidence of persons who can testify that they, from their knowledge about the witness, believe him to be unworthy of credit.
2. Independent evidence can be adduced to impeach the credit of witness by showing that he is a professionally hired witness receiving a bribe or some other corrupt inducement.
3. By showing that the witness has made statements on previous occasion which are inconsistent with any party of his evidence, and which are liable to be contradicted. Proof of such contradictory statements can be given to the extent which S.153 permits such contradiction.

Comment on S.146 & 155: The following evidence can be placed before court to test the Credibility of the witness. It can be done either by cross-examination or producing independent evidence. S.146 says such activity can be done by way of cross-examination and whereas S.155 says it can be done by way of independent evidence also.  In either case the tools to test the credibility are one and the same. They are:

         a) Veracity a witness,   b) Identity of the witness and position he holds in the life,   c) Character of the witness.

 S.147 says when a question arises whether a witness is compelled to answer or not, S.132 applies.

S.148: In the cross examination any question that imputes anything to the witness is permitted provided it would seriously affect the opinion of the Court as to the credibility of the witness on the matter of which he testifies. However, if there is a great disproportion between the imputation made against the witness’s character and the importance of his evidence, court shall not allow the counsel to ask such questions. It is one of the principles that the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavorable.

S.149 says Court has power to direct the lawyer not to ask the question referred under S.148 if such imputation is not well founded or it has no reasonable grounds.

S.150 says If the advocate crosses the limits set out in the Act and he is ruthless in questioning the witness and thereby injuring the character of witness and same is not based on reasonable grounds, the court can report the actions of such advocate to the appropriate authority i.e., Bar Council or High Court.

S.151 authorizes the court to forbid indecent or scandalous questions being asked even though such questions or enquires may have some kind of bearing on the questions before the court.

S.152 authorises that court to forbid any question which appears to it  to be intended to insult or annoy, or which, though proper in itself appears to the court needlessly offensive  in form .

Comment: Imputation: It means an allegation. It is not wrong to make imputation to witness on oath. The following table discloses imputation that are permitted and imputation that are not permitted.

Section 153 says when the witness answers a question relating to the inquiry which is put to him to shake his credit by injuring his character no evidence shall be given to contradict the answer given by the witness.  Whatever be the answer the witness gives, it must be received without any contradiction. However if he answers falsely he may afterwards he can be charged with giving false evidence for this above rule there are two exceptions: (a) previous convections (b) impeaching his impartiality. In both two cases witness answers can be contradicted.

Hostile Witness: Section 154: When a party calls a witness he naturally expects the witness to be favourable to him. But in certain case the witness so called by a party may unexpectedly turn hostile towards the cause of the party or he may be unwilling to speak truth. Such a witness who is imbubed with prejudiced mind towards the party calling him is called as hostile witness. In such cases it is just reasonable that the party calling such witness must be given an opportunity to cross examine such hostile witness.

Value of hostile witness evidence: Court can rely upon the evidence of hostile witness evidence to the extent it is supported by other evidence on record.

According to S.158 statements U/S 32 or 33 are treated on par with the statements of witnesses, who, if they had been available as witnesses, for the purpose of contradiction or corroboration

Refreshing Memory: Section 159 to 161: On account of the long gap between the incident and commencement of legal proceedings before the court, their memory is likely o fade and it becomes necessary for such witnesses to refresh his memory. Section 159 -161 provide the rules to enable the witness to refresh their memory. Section 159 permits to refresh his memory by making reference to any writing made by him at the time of transaction or so soon afterwards that in the opinion of the court the transaction was fresh in memory. He can also refer any document written by a person provided if it is seen he saw it in above said time. He can refresh his memory with the aid of copy of the document also provided he gives proper explanation for the absence of original.

An expert may refresh his memory by reference of professional treatises. S.161 says the above said document through witness refreshed his memory must be shown to cross-examiner also, if he asks.

If a witness who is having valid objections to produce a document, when he is summoned to produce document doesn’t produce it, subsequently he can’t be allowed to produce the same.

As per S.162 A witness who wishes to take objection for production of document shall bring it court then only he can take objection.  This rule applies to S.123 of the Act.

As per S.163 If a party calls for the production of particular document by giving a notice to the adverse party and has inspected the document on its production, he is bound to make the document as a part of evidence.

S.164 says if a party who is in possession of a document refuses to produce it when a notice is served on him for its production, subsequently he can’t make the document as part of evidence.

Role of Judge under S.165: A court has unlimited power U/S 165 of IEA, to put any question to any witness or order him to produce any documents. Under this section court may examine or recall or re-examine any witness in the interests of justice. If the prosecutor omits facts, the court may act u/s 165 and may question the witness to elicit the matter.

Restrictions on the power of the Judge:

1. It must be only for obtain proper proof of relevant facts.
2. Judge can ask irrelevant questions, but judgment must be based upon relevant facts and duly proved.
3. It can’t violate rules of privilege mentioned u/s 121 to 131 both inclusive.
4. The judge shall not ask questions which are held to be improper u/s 148 and 149.
5. A judge shall not dispense with primary evidence of documents for the purpose of proving the contents of a document unless justification is shown for the admissibility of secondary evidence u/s 65 of the Act.

 As per S.167 IF there is a sufficient evidence to justify a decision – improper admission or rejection of evidence is not a ground for new trial. The object of this rule is that technical objections will not be allowed to prevail, where substantial justice has been done.

Comment: The court has to receive relevant and admissible evidence. However, if it receives irrelevant or inadmissible evidence or rejects relevant or admissible evidence.

  what is fate of such Judgment?

Ans: If excluding such evidence, there would be no variation in the judgment there is no need of  new trial, otherwise it is a ground for new trial.

THEORY OF RELEVANCY: IMPORTANT EXAMPLES: