Defence Management
PRACTICE DIRECTION BY SUPREME COURT REGARDING RECORDING OF EVIDENCE DURING TRIAL (IN SUO MOTU WRIT(CRL.) NO.1 OF 2017)
a. Every judgment must mandatorily have a preface showing the name of the parties and an appendix showing the list of Prosecution Witnesses, Prosecution Exhibits, Defence Witnesses, Defence Exhibits, Court witnesses, Court Exhibits and Material Objects.
b. Witnesses/documents/material objects be assigned specific nomenclature and numbers.
- The High Court would not be incorrect or acting out of jurisdiction if it exercises its power under Page 34 34 Art.226 to issue an appropriate writ or direction or order in exceptional cases at the behest of a person accused of an offence triable under the Act or offence jointly triable with the offences under the Act. wherever the High Court finds that in a given case, if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its power under Art. 226 of the Constitution.
CODE OF CRIMINAL PROCEDURE 1973 @ PROCEDURAL SAFE GUARDS
- Mansukhlal Vithaldas Chauhan v. State of Gujarat, it has been held by this Court as under: “. Since the validity of “sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.” Sanction is void on the ground of non-application of mind and is not a legal and valid sanction.
- X was a chargesheet witness although his statement under Section 161 CrPC was never recorded and thus, the accused persons had been naturally deprived of an opportunity to effectively cross-examine the witness and thereby they were very much prejudiced
- in the case of Ranjit Singh v. State of Punjab,which case is relied upon in the case of Ajit Singh(supra) this Court observed as under: “Before adverting to the facts to have been narrated by the accused as recorded in the two confessional statements, it deserves to be noticed that in case the recording officer of the confessional statement on administering the statutory warning to the accused forms a belief that the accused should be granted some time to think over the matter, it becomes obligatory on him to grant reasonable time for the purpose to the accused. In other words, the cooling time that is granted has to be reasonable. What time should be granted would of course depend upon the facts and circumstances of each case. At the same time, however, when the time to think over is granted that cannot be a mere farce for the sake of granting time.
THE INDIAN EVIDENCE ACT @ PROPAGATION OF DEFENCE EVIDENCE – DEMOLITION OF POLICE EVIDENCE
- Defence Witnesses to be given same weightage as prosecution witnesses. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.Munshi Prasad v. State of Bihar, I.C.D.S. Ltd. v. Beena Shabeer & Anr. and State of Uttar Pradesh v. Babu Ram
- Delay in recording statements of accomplices and confessional statements of the accused persons-the case of State of Andhra Pradesh v. S.Swarnalatha & Ors., wherein even 26 days delay in recording statements of prosecution witnesses was not allowed by this Court , Jagjit Singh @ Jagga v. State of Punjab.
- Suppression of material witness draws an adverse inference against the prosecution-Tulsiram Kanu v. The State, Ram Prasad & Ors. v. State of U.P. and State of U.P. v. Punni & Ors.
- Failure of the prosecution to establish a nexus between the accused persons and the crime
- Mohd. Husain Umar Kochra v. K.S. Dalipsinghji, wherein this(SC) Court had further stated with regard to the combined effect of Sections 133 and 114, Illustration (b) of the Indian Evidence Act, 1872 and held that corroboration must connect the accused persons with the crime.
- Sarwan Singh v. State of Pubjab, wherein this Court has laid down the legal principle that the courts are naturally reluctant to act on such tainted evidence unless it is corroborated and that independent corroboration should support the main story disclosed by the approver apart from a finding that the approver is a reliable witness. The accomplice evidence should satisfy a double test, i.e. he is a reliable witness and there is sufficient corroboration by other evidence to his statement. This test is special to the case of weak or tainted evidence like that of the approver. Ravinder Singh v. State of Haryana, Abdul Sattar v. U.T. Chandigarh, Narayan Chetanram Chaudhary v. State of Maharashtra, Sheshanna Bhumanna Yadav v. State of Maharashtra and Bhuboni Sahu v. R
- Alternative stories put forth by the prosecution-Even the prosecution was not certain as to which of the three versions was true. It was submitted that therefore, in the presence of these major discrepancies in the prosecution story, and the non reliability of the confessional statements of the accused persons, they were entitled to acquittal.
- Vijay Kumar Arora v. State(Govt. of NCT of Delhi) , wherein the Court held as under: “ In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicion do not take place of legal proof.In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle, a distinction must be made between facts called primary or basic on the one hand and inferences of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question of whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of the benefit of doubt applies.”
- The evidence of the accomplices cannot be used to corroborate the confessional statements of the accused persons in the absence of independent evidence and the delay of more than one year in recording their statements causes us to disregard their evidence.
- Aloke Nath Dutta & Ors. V. State of West Bengal, this Court held as under: “ A retracted confession of a co-accused cannot be relied upon for the purpose of finding corroboration for the retracted confession of an accused.
