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Amicus Curiae

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Rape of a child of 3 years & murder =WHEN INCRIMINATING CIRCUMSTANCE NOT PUT TO THE ACCUSED AT 313 EXAMINATION , IT CAN NOT BE CONSIDERED AS PROVED EVIDENCE , WITHOUT EXPLANATION FROM THE ACCUSED = convicting the appellant under Sections 376(2)(f) and 302 of the Indian Penal Code, 1860 (hereinafter referred to as `the IPC’), sentencing him to death. =The appellant’s conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. = Undoubtedly, the FIR lodged has disclosed the previous statement of the informant which can only be used to other corroborate or contradict the maker of such statement. However, in the event that the informant is a person who claims to know the facts, and is also closely related to the victim, it is expected that he would have certainly mentioned in the FIR, all such relevant facts. The omission of important facts affecting the probability of the case, is a relevant factor under Section 11 of the Evidence Act to judge the veracity of the case of the prosecution. (Vide: Ram Kumar Pandey v. The State of Madhya Pradesh, AIR 1975 SC 1026). = An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself. – The instant is one of circumstantial evidence, and only two circumstances have appeared against the appellant, namely, I. That he had been able to point out the place where Sima Khatoon was lying, after his demand for Rs.20/- had been accepted; and II. That subsequently, he had left the said place and boarded a bus immediately. The aforesaid circumstances in isolation, point out conclusively, that the appellant has in fact committed the said offence. Furthermore, the most material piece of evidence which could have been used against the appellant was that the blood stains found on his underwear matched the blood group of Sima Khatoon. However, the said circumstance was not put to the appellant while he was being examined under Section 313 Cr.P.C. by the trial court, and in view thereof, the same cannot be taken into consideration. Hence, even by a stretch of the imagination, it cannot be held that the aforementioned circumstances clearly point towards the guilt of the appellant, and in light of such a fact situation, the burden lies not only on the accused to prove his innocence, but also upon the prosecution, to prove its case beyond all reasonable doubt. In a case of circumstantial evidence, the aforementioned burden of proof on the prosecution is much greater. In view of the above, the appeal succeeds and is allowed. The judgments and orders passed by the courts below impugned before us, are set aside. The appellant has been in jail for the last six years, he must be released forthwith, unless wanted in some other case. Before parting with the case, we feel that it is our duty to appreciate the services rendered by Shri Ratnakar Dash, learned senior counsel, who acted as amicus curiae.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1323 of 2011 Sujit Biswas …Appellant Versus State of Assam …Respondent J U D G M E N T Dr. B.S. CHAUHAN, J. 1. This appeal has been preferred against the judgment and order dated 23.4.2010, passed by the High Court … Continue reading

PURPOSE AND SCOPE OF SEC.313 Cr.P.C. EXAMINATION = the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution’s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself.

‘ REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 931-932 of 2009 Raj Kumar Singh @ Raju @ Batya …Appellant Versus State of Rajasthan …Respondent J U D G M E N T Dr. B.S. CHAUHAN, J. 1. These appeals have been preferred against the impugned judgment and order dated … Continue reading

appointment on compassionate ground = The claim of the respondent was earlier rejected on the ground that, the family had adequate financial status and the amount of pension being given was actually over and above the limit fixed by the appellant issuing the guidelines. Subsequently, when the case was reconsidered upon the direction of the court, it was found that the respondent did not meet the requisite eligibility criteria i.e., 10th standard certificate. Admittedly, the respondent is 8th standard fail, and thus, he can be considered only as 7th standard pass and we must therefore consider, whether he could have been offered appointment to a Class IV post. 13. Clause 9 thereof, provides that no relaxation in educational qualification(s) for the purpose of giving compassionate appointment to the dependant(s) of a deceased employee, would be permissible. However, such relaxation can be granted if there exists some requirement of minimum qualification(s) with respect to the said post. Clause 11 thereof, provides that a dependant can, in fact, be given appointment on compassionate ground, on the basis of the pass marks obtained by him in the new Secondary School Certificate and in view thereof, as respondent No.1 is admittedly only 8th standard (fail), he is therefore, ineligible for the post. Even otherwise, if the direction of the High Court is complied with and the case is considered as per the un-amended provisions in existence prior to 2005, the financial limits fixed therein, would automatically be applicable. His application dated 11.5.1999 reveals that his date of birth is 1.3.1976, and further that he has studied only upto the 8th standard (fail). 14. In view of the above, we are of the considered opinion that since 1991, the eligibility criteria for a Class IV post was set as, the passing of the 10th standard, and as the said respondent had been unable to pass even the 8th standard, he was most certainly, not eligible to apply for the said post. In view of the law referred to hereinabove, it is neither desirable, nor permissible in law, for this court to issue direction to relax the said eligibility criteria and appoint respondent No.1 merely on humanitarian grounds. 15. Thus, the question framed by this Court with respect to whether the application for compassionate employment is to be considered as per existing rules, or under the rules as existing on the date of death of the employee, is not required to be considered. 16. In view of the above, the appeal succeeds and is allowed. The judgment and order impugned herein is set aside. No order as to costs.

Reportable   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6468 OF 2012   State of Gujarat & Ors. ..Appellants Versus Arvindkumar T. Tiwari & Anr. … Respondents       J U D G M E N T   Dr. B.S. CHAUHAN, J. 1. This appeal has been preferred against … Continue reading

The appellant lost her husband, a former Member of Parliament, in the calamitous events which took place on 28th February, 2002, in the surroundings of Gulberg Society, Ahmedabad, where the appellant resided along with her family. An FIR relating to the incident was registered by the Police with Meghaninagar Police Station, Ahmedabad. After investigation, on the filing of the charge-sheet, the 2

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1765 OF 2011 (ARISING OUT OF S.L.P. (CRL.) NO. 1088 OF 2008) JAKIA NASIM AHESAN & ANR. — APPELLANTS VERSUS STATE OF GUJARAT & ORS. — RESPONDENTS O R D E R 1. Leave granted. 2. This appeal by special leave, arises … Continue reading

In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel `Anna Karenina’, Gustave Flaubert’s novel `Madame Bovary’ and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him. 24. In USA the expression `palimony’ was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony’ on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 2028-2029__OF 2010 [Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010] D. Velusamy .. Appellant -versus- D. Patchaiammal .. Respondent JUDGMENT Markandey Katju, J. 1. Leave granted. 2. Heard learned counsel for the appellant. None has appeared for the respondent although she has … Continue reading

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