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Gopal Prasad

This tag is associated with 3 posts

Death penalty to imprisonment for life; circumstantial evidence; confession before police inadmissible but recovery part is admissible = We are, therefore, convinced that the ultimate conviction of the appellant under Section 302 of IPC and the sentence of life imprisonment imposed on him by commuting the death penalty imposed by the trial Court, was perfectly justified and we do not find any good grounds to interfere with the same. The appeal fails and the same is dismissed.; confessional statement= “16. A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of Sections 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with confessions. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression “accused of any offence” in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 CrPC a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial. 19. From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in-law PW 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.”

reported in http://judis.nic.in/supremecourt/imgst.aspx?filename=40591 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1575 OF 2009   ANUJ KUMAR GUPTA @ SETHI GUPTA …APPELLANT VERSUS STATE OF BIHAR …RESPONDENT J U D G M E N T FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. This appeal is directed against the judgment of the High Court … Continue reading

“1. Whether the use of beacons red-light and sirens by persons other than high constitutional functionaries is lawful and constitutional? 2. Whether the provision of security to persons other than the constitutional functionaries without corresponding increase in sanctioned strength and without a specific assessment of threat is lawful and constitutional? 3. Whether the closure of roads for facilitating movement of VIPs is lawful and constitutional?”

‘ ITEM NO.305 COURT NO.3 SECTION XI S U P R E M E C O U R T O F I N D I ARECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil) No(s).25237/2010 (From the judgement and order dated 21/08/2009 in CMWP No.15440/1998 of TheHIGH COURT OF JUDICATURE AT ALLAHABAD) ABHAY SINGH Petitioner(s)VERSUSSTATE … Continue reading

whether the competing goods are different and whether the Registrar was right in refusing the appellant’s opposition. In deciding on this point the well settled law is to consider the nature of goods; its characteristic; its origin; the purpose; whether it is produced usually by one and the same manufacturer or distributed by the same wholesale houses; whether they are sold in the same shop over the same counter; during the same season and to the same class or classes of customers; whether they are regarded as belonging to the same trade etc. The Act uses the expression ”Similarity of goods or services” [S.11(a)]. The essential requirement is that there should be such similarity resulting in the likelihood of confusion on the part of the public. The question whether or not two sets of goods are of the same description is a question of fact and in deciding that question “one has to look at the trade” and must look at it from a practical business and commercial point of view. It is recognized that classification of goods and services is only an enabling tool for seeking registration and we can find many goods of same description in different classes as also goods of different description in the same class. In the instant case the competing marks are identical i.e. SONA. The rival goods are used by the common man. The perception of the mark in the mind of average consumer plays a decisive role. Here the appellant coined, adopted and started using SONA from 1975. The respondent was born some ten years later. Here it is layperson – illiterate, semi-literate, housewives, servants who will be buying both goods. Confusion as to the trade source is therefore inevitable. When the rival goods are used through the same trade channel and sold in the same shop over the same counter, many customers will wonder whether it might not be the case that the two products come from the same source. There is a real tangible danger if the impugned trade mark is put on the Register. The respondent started the use of the impugned trade mark in 1985 with an annual turnover of Rs.36,000/-. Upto 1995 their annual turnover was always less than one lakh rupees. On the other hand even before the respondent’s trade mark was born in 1985, the appellant annual turnover had reached Rs.36.0 lakhs. No wonder the appellant are greatly exercised. He is expanding and diversifying his business. The appellant have thus established by evidence filed before the Registrar and beyond any reasonable doubt, the civil standard of proof required to show that potential customers for the appellant’s goods will be misled into purchasing the respondent’s goods. In determining the likelihood of confusion because of similarity of goods, we are concerned with ordinary practical business probabilities having regard to all the circumstances. There is great affinity between the competing goods here. Since the practice of Registry is not to permit registration for a broad range of goods in a class, it then becomes its duty to ensure correct application of law in respect of subsequent identical mark for cognate class of goods. The Deputy Registrar had erred in applying the wrong test and permitted the registration of the impugned trade mark. His ruling that the rival goods are totally dim-similar is misconceived as the class of customers has been ignored. Similarity and confusion as to origin both largely are matters of fact and impression. The appellant have built a reasonable reputation for their trade mark SONA ten years before the respondent. In deciding such cases one has to think like a common man. That is the only correct test that can be sustained. The supreme test is the likely public confusion bench marking the level of education, class of customers at ground zero. 7. Accordingly, we set aside the order of the Deputy Registrar permitting registration of the impugned trade mark. OA/54/2005/TM/KOL is consequently allowed and the impugned trade mark “SONA” in class 30 is refused registration. There is no order as to costs.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443 Anna Salai, Teynampet, Chennai-600018   (Circuit Bench Sitting at Kolkata)   OA/54/2005/TM/KOL FRIDAY, THIS THE 8th DAY OF JUNE, 2012     HON’BLE SMT. JUSTICE PRABHA SRIDEVAN          … CHAIRMAN HON’BLE SHRI V. RAVI                                                   … TECHNICAL MEMBER   M/s Sona Spices Pvt. Ltd., 746, Industrial Area, Phase-11, … Continue reading

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