Indian Evidence Law: Dying Declaration

Reading time : 12 minutes

INTRODUCTION

This dying declaration is mentioned in section 32-clause (1) of the Indian Evidence Act, 1872. The declaration of dying means a statement of the person in written or verbal form of relevant facts made by that person who has died. The dying declaration could be proved by a person who records it, and it is not accomplished unless the full name and address of the witnesses are recorded in it. A dying declaration is also called ‘leterm mortem’ which means “Words spoken before death.”  That person who is dying has told their death how he has died in which circumstances, what is the cause of death. This is all about the dying declaration by that person by his mouth at the time of dying.

PRINCIPLE OF DYING DECLARATION

The principle of dying declaration is based on a Latin maxim ‘Nemo moriturus praesumitur mentire.’ This means ‘A man will not meet his maker with a lie in his mouth.’

In easy words, when a person dies, then he would go to God in heaven here, god is the maker as per the maxim. And no one wants to die with falsehood in your mouth when he would meet next to god after death. That is why the person who is dying and who is about to die. He would never falsehood at the time of death. Therefore, the truth sits down on the lips of that person who would about to die.

TYPES OF DYING DECLARATION

There are some types of dying declaration: Written, Oral, and gesture dying declaration.

1. Written dying declaration

In writing the declaration of death, the dying person has to write about their death, which means how he died, under what circumstances he died, does anyone want to kill him, and any possible cause that he has described in his declaration before the death. This declaration may be admissible in the court of law of a deceased person when this declaration of death appears before the court in writing.

For example, a girl (A) who loves Sri (B). But after some time, girl (A) breaks up her relationship with Sri (B). Sri (B) did not like that. Therefore, Sri (B) seduces her online by chatting and blackmailing her for money, and if she does not agree to give him money then, he warns her he would viral her nude pictures in the public domain. Due to the defamation before her family and society, she wrote a letter in which she described all things with the name of Shri (B) then she commits suicide. Now, that letter plays the role of the dying declaration of girl (A) who has now died, and this letter would appear before the court. So, this is all about the dying declaration in written form.

2. Oral dying declaration:

In this, the deceased person told about their death by mouth, not in written form which, means how he died, under what circumstances he died, and Any possible reason he might have described when he was announcing his death. When the declaration mentioned the name of the accused in the presence of the doctor who gave him a preliminary statement.

For example, a terrible fight ensued between two people (A) and (B) as a result, (A) stabbed (B) and immediately fled from there. Afterward, (C) saw (B) will be died because of the stabbing he goes to (B) and (B) told everything about their death to (C) that who was cause my death and in which circumstances all these things (B) told to (C). Though (C) did not see anyone at the death place of (B) but still, if he appears before the court as a witness and tells the truth of (B)’s dying declaration then, the court admits this dying declaration which, is indirect.  Because it was being told by (C) so it is indirect if (B) had said it himself, it would have been a direct declaration of death but, (B) has died, so the court accepts the statement of (C) regarding dying declaration of (B).

3. Gestures Dying declaration

In this, the dying person told about his death by any kind of indication because he is incapable of told their death in verbal or written.

For example, there is a couple who were living in their house. The wife got such news from somewhere that her husband goes to meet another girl every evening by lying to her. So, she stabbed her husband with a knife at night because of just one news. He shouted, save me, his servant comes upstairs, and the owner has been stabbed by someone, and the dying owner indicates the servant by pointing his hand towards the picture of his wife. He did all this because he was not in a position to speak and write about their death. Meanwhile, also his wife runs away from there. Therefore, all in this situation if, the servant appears before the court, then his statement is admissible in court because the servant’s owner gave a dying declaration before the servant by indicating the picture of his wife.

4. Multiple Dying Declaration

In the cases of many dying declarations, the court should consider whether they are consistent with each other. If they are not consistent, then it would be must examine whether they are material or not. In cases where there is more than one dying declaration, it is the duty of the court to consider each declaration and satisfy itself based on its voluntariness and credibility. The mere fact of recording multiple dying declarations does not renounce the importance of each declaration. The court will have to examine the contents of the declaration of death keeping, in view the many facts and circumstances surrounding it when it could have multiple dying declarations.

WHO CAN RECORD AND WHAT IS THE PROCEDURE OF DYING DECLARATION?

First, we will discuss who is entitled to record the dying declaration. The person most relevant to recording the declaration of death is the judicial magistrate, who is the most reliable. Whenever an injured person is in critical condition, the investigating officer works to send him to the magistrate to record their dying declaration. The Magistrate being disinterested witness, no question of doubt would arise. So, the best person who records the dying declaration of a person is the judicial Magistrate, and he is the number one among who would record the dying declaration.

The second person after the Judicial Magistrate is entitled to record the dying declaration is the Police officer. When a person is seriously injured, the investigating officer uses himself to record the declaration of that person’s death. So, the Police officer is the second most relevant person who can record a dying declaration. The third person who is entitled to record the dying declaration is the Doctor and In the absence of the magistrate, police officer, and doctor. At last, any person could be entitled to record the dying declaration of the dying person. When no magistrate, doctor, and police officer are present, a declaration of dying may be recorded by any person as the victim could be seriously injured.

Now, we would discuss the procedure to record the dying declaration of a dying person. Though, there is no procedure to record the dying declaration mentioned in Indian evidence law. But we use some procedures: –     Magistrate plus doctor and two witnesses are the best methods to record a dying declaration. The doctor has certified that he is conscious his mental facilities are normal and he’s mentally sound it is compos mentis, and the doctor now could record the dying declaration. Secondly, no oath is administered because a dying person never lies, so he is considered true. Thirdly, the statement should be recorded in the person’s own words without any alteration in terms of facts or phrases.

Therefore, they should use their words and not the words of another person. Fourthly, the given statement should not contain undue influence or assistance. Fifth, the person recording the dying person must articulate that the question and answer are both recorded. Sixth, the statement requires one fact, not one opinion. Seventh, the dying person should write his declaration of death if possible. Also, anyone should read his / her declaration of death, and the dying person must sign or thumb the declaration of his / her death. The dying person could give an oral statement because he is unable to write his dying declaration. Ninth, when the doctor records the statement of the dying declaration of the dying person after that statement will be sent by the doctor to the magistrate in a sealed cover. At last, the evidence would appear before the court.

ANALYSIS OF IMPORTANT CASES.

There are some important laws in the dying declaration: – There are some important laws in dying declaration: – In the case of Sant Gopal v State of Uttar Pradesh[1], the declaration of death can be in the form of question and answer or in the form of a narration. The dying declaration is not complete until the relevant facts, the name of the convict, and the circumstances of the victim’s death are evident in their dying declaration. Another case is Queen-Empress v Abdullah[2], in which if any person who is so injured is unable to write or speak a declaration of his death. Then he can indicate his dying declaration by any gesture or signal. In the case of Najm Farazi Nizam Farooqui v State of West Bengal[3], if any person who is dying can give their dying declaration in his own language which would be considered as the most relevant in the court.

Now, a question arises that when the dying person is giving his dying declaration does, he would have any apprehension about his own death? In English law, it is necessary that a dying person apprehension his death when he is announcing his death. But, in Indian law, it is not necessary that a dying person apprehension his death.

In the case of Sharad Birdichand Sarda v The State of Maharashtra[4] the girl who has married. But her husband and her in-laws used to treat that girl like a laborer. Also, her husband used to commit domestic violence against her. Frustrated with this, he wrote a letter to his sister, in which he told this sadness. Also, the girl wrote not to tell this to the parents or else they would be upset. However, she had been married for only 4 months, and her body was found in his room. In this case, that letter will be admissible by the court because the girl is not required to have any apprehension about her death in advance. Nevertheless, as written in that letter, it is known that his life was very tragic, and it could be assumed that letter was a dying declaration of sorts. There is another case Pakala Narayana Swamy v Emperor[5] in which the husband speaks to his wife that he will be going to borrow a loan from the house of the wife of the accused, and after saying so, he goes away. Later, that man’s body is found, then that man did not know that he will die by going there, then in such a situation, the last thing he would have said to his wife would become an announcement of his death. The court will also admissible: what the last words of the dead man said in front of his wife. With corroborating evidence. With corroborating evidence. In the case of U.P v Hum Sagar Sagar[6], in which if the court is satisfied with the declaration of dying because it is true and voluntary, the court can convict the accused without any corroborating evidence on that basis. In the case of Rasheed Begum v State of Madhya Pradesh[7], in which if the dying declaration of the dying person is suspicious then the accused could not be convicted without corroborating evidence. Therefore, the dying declaration of the dying person must be supported by corroborating evidence.

CONCLUSION

After all the discussion on the declaration of death, we can conclude that the final words of the person who died before dying are called the declaration of death. Because it is believed that a dying man never lies. Therefore, whatever questions and answers are asked to the man who is dying at the last minute, he has to tell how he died (when he is badly injured), under which circumstances, and who did it all. He can tell all this by written, oral, and any indication. This death declaration can also be recorded by the magistrate, police officer, doctor, and other people. Wherever the court feels that there is something untrue in the declaration of death, there is a need to confirm the evidence along with the declaration. This often happens when multiple death declarations are made. We have seen many legal cases above, where there is no need to doubt before declaring to die in India, whereas in English law it is essential. Thus, we have concluded that the declaration of death is important to ensure the justice of the deceased


[1] Sant Gopal v State of Uttar Pradesh (1995) Cr LJ312(all)

[2] Queen Empress v Abdullah, I.L.R 7 All. 3385 (F.B.) 1885

[3] Najm Farazi Nizam Farooqui v State of West Bengal, 1992 Cr LJ 2574

[4] Sharad Birdichand Sarda v State of Maharashtra, AIR 1984 SC 1622

[5] Pakala Narayana Swamy v Emperor (1939) 41 BOMLR 428

[6] U.P v. Hum Sagar Sagar, (1985)

[7] Rasheed Begum v State of Madhya Pradesh AIR 1974 SC 332

Authors: Aditya Kohli, Dharmashastra National Iaw University, Jabalpur, M.P.

Editor: Kanishka Vaish, Editor, LexLife India.

IEA, 1872 : Doctrine of Res-Gestae

Reading time : 10 minutes

Introduction

Res Gestae is a Latin word meaning “action complete”. Res Gestae is used to refer to an event statement proving that an event occurred because it was spoken when it was observed.

For example, when people notice that there was a fire in a crowded cinema, and someone shouts “FIRE”, res gestae is displayed. This statement can be interpreted as evidence that a fire has occurred.

Res Gestae was once considered to be an exception to Hearsay’s law. This is because it refers to a phrase that is pronounced too close to the case so that it can be used to show that the event has taken place. Statements according to the Res Gestae doctrine are made naturally and naturally, so anyone listening to them has no space for confusion or misunderstanding. The argument will then be used as evidence if a witness testifies and repeats such a statement in court. The court therefore finds such claims to be completely reliable.

The claims of the Res Gestae doctrine can be divided into three categories.

    • A word or phrase that fully or partially describes a bodily action.

    • Intervention voluntarily enough to succeed in preventing someone from telling the lie against them.

    • A statement confirming the individual’s state of mind.

In some jurisdictions, the word res gestae was also used in connection with receiving images of suspects photographed by police. The tool for proving what proof has been raised in court is the most demanding field of criminal law. This is Res Gestae, one of the test’s values. The Res Gestae doctrine is founded on the premise that proof of irrelevant considerations cannot be rejected by the courts, taking into account all relevant aspects of the chain of cases before a final decision is made within the criminal justice system. Even if any form is distinct from the circumstance.

This is because, in criminal law, the concept of restitution is adopted to prove certain basic evidence. Without the aid of missing evidence, it is difficult to prove the whole argument. Another research study known as the doctrine of Res Gestae may support this. Res Gestae is a Latin term meaning that the same transaction is part of it. This applies to the portion of the event that is related directly or indirectly to the transaction of the main event.

The importance of the Res Gestae doctrine is unclear and inconclusive. It’s a confusing term that makes it impossible to say exactly what is considered the doctrine of Res Gestae. This was not explicitly stated as courts are free to consider the relevant evidence based on all facts in the case.

Res Gestae’s History

Res Gestae rules are based on Thompson v. Trevanion, has been deemed to be able to take a statement of compliance with the law for explanation. In 1736, Ambrose v. Clendon, if the statement was true, it was issued recognizably. The use of the Res Gestae doctrine became a brief discussion of the evidence of Home Took’s betrayal case.

However, the development of this doctrine began in 1805 and was freely used in connection with the term after Aveson’s fall against Lord Kinnard. And it can be said that this exception has been established since the middle of the 19th century. The famous Cockburn CJ decision was discussed in principle. Exception to Bedingfield Res Gestae and rumors. Sir Cockburn thought it was unacceptable because it was made by her after this statement was over. He said he wasn’t part of the transaction, he said it was when the transaction was completed and the transaction was split. This decision was virtually invalid, but it correctly explains the previous principles used to define the Res Gestae exception, which often resulted in unfair consequences.

Bedingfield’s decision was actually too strict. However, this decision was made by Ratten v. The doctrine of R, Res Gestae was defined by common law in free and broad terms. In another example of the queen to the queen, Sir Wilber said: “The testimony would have been accepted as part of Gestae Row, as well as the tight connection of space and time between the statement and the statement. The shooting, but how the statement was made when the police called. And the tone of the voice clearly showed that this statement was made by a woman who is under the overwhelming pressure of modern events. “

Gestae Travel under the Indian Evidence Act

Section 6 of the Indian Evidence Act describes the principles of res gestae. Evidence based on rumors will not be admitted in court. However, res gestae is an exception to rumors. This is due to the spontaneity and immediacy of such statements with little time to invent. Therefore, such statements must be followed simultaneously or at least immediately with the steps that constitute the offense.

Res gestae contains facts that are part of the same deal. So it is important to study what a transaction is, when it starts and when it ends. If the fact cannot be linked to the underlying transaction it is not valid as it cannot be the result. If a statement is made pursuant to the terms of the preamble, that statement is part of the same transaction and is permitted in court. The strengths of section 6 are ambiguous. Each criminal case must be judged on its merits. If the evidence relates to the same transaction, it is allowed in section 6, but reliability is the judge’s assessment.

Res Gestae test

1.If the first test has a causal relationship or, conversely, a causal relationship with the fact that the facts in question are intended to be presented as evidence, then we can say that this fact is part of the following: ‘The same deal with the facts in question. However, this test is not important because all events are a combined effect of numerous effects. Assuming that all these causes and effects are considered relevant and evidence of all such facts is permitted, the exact purpose of limiting evidence to relevant facts in court is entirely possible. Valuable trial time is wasted hearing evidence of distant cases and distant outcomes.

2. The second test assumes that facts about proximity to time and location are present in the segment. The facts which are obviously taking place concurrently and in the same place are closely linked and can therefore be considered important to this section. This is not necessary, however, since the section itself takes account of the possibility that the facts that occur at various times and in different locations which relate to the facts at issue, which are part of the same transaction.

3. The third test implies that the fact that you are finding the facts and evidence in question must be a consistency of action and intent. It is argued that it  is not worth replacing one passage with another.

Case Analysis of Res Gestae Doctrine

The Indian Res Gestae judiciary interpreted the production only as a statement immediately after or immediately after the event, but not “at the time” where the production was permitted.

1. Andhra Pradesh Province v Panna Satia Narayana

The accused killed his wife and daughter. Statement from the deceased’s father that the defendant’s father said over the phone that his son had killed the deceased. Transactions of the absence of conclusions about whether the information provided by the defendant to the father of the deceased killed the deceased. This statement cannot be construed as referring to a section.

  2. Jagser v. Hariana Province

The confirmation of the death claim in this case came from the testimony of Mangat Ram, brother of the deceased father Ruldus, who provided evidence confirming the material aspects of the prosecution. They don’t claim that the accused set fire on Yasin Khan, but they said he ran after a while because they both sued Yasin Khan and his wife Pinky to the house to settle the dispute. At home. Yasin Khan on fire. By applying the principles of res gestae, the two defendants apparently appear to be involved in the crime. The medical certificate duly confirms the ocular medical certificate.

Exception from Res Gestae

An exception to the theory that professional proof is not evidence is Res Gestae. The acceptance of Res Gestae as an exception to the professional rule can be defined as a professional statement relating to relevant facts or comments made during the stress and impact of the incident by the witness. Or with authorization. The rationale of this argument is that in such a striking statement, since the case is so surprising and can only say the facts, the witness is unable to focus on the case. From Suhar v. W.P. Will this issue bear witness to what the victim said to him? As an exception to the general rule, Article 6 was determined that rumors were not accepted as facts.  However  It should be remembered that “the statement is about the same time as the fact of the matter and there should be no production disruption to be part of the same transaction.” In this situation, proof is allowed. As witnesses arrived at the scene, they discovered the body of the deceased and wounded the unconscious survivor.

Criticism

Even when Res Gestae’s concept was in its infancy, there were always signs that it was not well received. It gained popularity due to its comfortable ambiguity. Wigmore sharply criticized the use of the phrase Res Gestae. He wrote that it was “not only completely useless, but also positive damage.” “All test rules applied exist as part of other established principles, and this term is useless because that principle can be explained. This term is detrimental because it confuses one rule with another because of its ambiguity, creating ambiguity for both constraints. Thus, Wigmore concluded that “Res Gestae” would not be mentioned.

Conclusion

In accordance with Res Gestae, proof is usually addressed where it can not be given under part of the Humanitarian Evidence Act. When the case was dismissed because of a lack of facts, lawmakers sought to prevent discrimination. The courts have always acknowledged that it is not necessary to extend this doctrine indefinitely. It is important to judge each criminal case on its merits. This is permitted by the sect if the proof is part of the same transaction. How accurate this is, however, is up to the discretion of the court. This is a more nuanced and ambiguous doctrine, and this is the difference.

There is sharp criticism of the ambiguity of this doctrine. But we can see that only the measures taken to form Res Gestae meant what initially began. Now all acts or comments made to commit a crime at the same time or in a single scene of the crime. Or at varying moments at different times. The position is considered part of the same transaction, so it is permitted in compliance with the concept of Res Gestae. Dean Wigmore said: “The term Res Gestae is not only totally useless, but also positively harmful under current law.” Never should this be discussed.

Authors: Alan John Abraham

Editor: Kanishka Vaish, Editor, LexLife India.

Cyber security infrastructure in India

Reading time: 8-10 minutes.

Recently on 12th April 2020, the Ministry of Home Affairs advised that the video conferencing application i.e. Zoom is not a safe platform. Due to the pandemic, the country is undergoing a lockdown since 24th March 2020 and all the movements have been stopped except for the delivery of essential commodities. So due to this everyone is working from home through the help of internet. Some are working with the help of conference call, on the other hand, some are working on a video conference platform such as Zoom. Also, the courts are tackling the disputes with the help of video conferencing platform Zoom. In the advisory, the Home Ministry has asked people to take certain precautionary measures such as:

  • One should create a new User ID and password for each individual meeting.
  • The host should create a waiting room so that people can join the meeting only when the host prescribes permission to join.
  • Screen sharing feature should be only accessed by the host.
  • The host should disable the feature of “allowing the removed participants to rejoin”.

Significance of this development

India has a detailed and well-defined legal system in place. Many laws have been enacted and implemented like the Indian Penal Code 1860, the Indian Evidence Act 1872, the Code of Civil Procedure 1908, the Companies Act, and so on. However, the arrival of the internet has given rise to new and complex legal issues. It may be appropriate to say that the existing laws in India were enacted while keeping in mind the relevant political, social, economic, and cultural scenario of that relevant time. Nobody then could really visualize about the Internet. Despite the brilliant knowledge of our master draftsmen, the requirements of cyberspace could hardly ever be identified. As such, the coming of the Internet led to the emergence of numerous tricky legal issues and glitches which required the enactment of cyber laws.

In the present profoundly digitalized world, nearly everybody is influenced by digital law. For instance:

.

  • Practically all organizations widely rely on their PC systems and keep their important information in electronic structure.
  • Government structures including personal expense forms, organization law structures and so on are presently filled in electronic structure.
  • Customers are progressively utilizing credit/check cards for shopping.
  • The vast majority are utilizing email, telephones and SMS messages for correspondence.
  • Digital signatures and e-contracts are quick replacing regular strategy for executing business.

Cyber Security Laws in India

Provisions under Information Technology Act, 2000

Section 66 of IT Act, 2000 deals with the offences relating to computers and section 66A states the punishment for sending any kind of messages which are offensive in nature, and which, the wrongdoer knows to be false but he did it to cause annoyance, injury, or insult to the victim shall be sentenced for a term which may extend to three years with fine.

Section 66B of IT Act, 2000 says that a person shall be held liable for three years or with a fine which may extend up to one lakh rupees if the offender dishonestly receives or keeps a device which he knows to be stolen.

Section 66C of IT Act, 2000  defines the punishment for identity theft, such as electronic signature, shall be punished with the term of up to three years and shall also with the fine of one lakh rupees.

Section 67A of IT Act, 2000 says that any material which contains sexually explicit acts, when

transmitted or regulated on the internet by a person, will attract the liability under this section and the person would be punished for a term of up to five years with a fine of up to ten lakh rupees. And the punishment shall be exceeded to seven years and a fine of ten lakh rupees in case of a subsequent conviction.

Section 72 of IT Act, 2000 deals with the breach of confidentiality and privacy, it states that any person who has access to any document, information or other material, discloses that material shall be punished with a term of two years and also with a fine of the sum of one lakh rupees.

Provisions under Indian Penal Code, 1860

Section 354D of Indian Penal Code, 1860 defines stalking as any man who monitors the use of the internet by a woman shall be punished for a term of up to three years and with fine. The duration will be extended for five years with a fine on the subsequent conviction.

Section 416 of Indian Penal Code, 1860 defines cheating by personation as if a person pretends to be some other person other than who he actually is. The punishment of cheating is given under Section 417 which states that a person can be booked for a term of up to one year with fine or both. 

Institutions for protection against Cyber-crime

Cybercrime Prevention against Women and Children (CCPWC)

This scheme was launched by the Ministry of Home Affairs and deals with providing an effective mechanism that will help the victims of cybercrime to fight against it. This scheme allows the person to file an online complaint of such wrong content such as child pornography, child sexual abuse, and any other wrong content. Ministry has announced that a sum of Rs. 2,30,00,000 has been granted to NCT of Delhi for the setup of Cyber Forensic Lab Cum Training Center.

National Crime Records Bureau will identify objectionable content on receiving complainants and take action for its immediate removal. For this, NCRB has already been notified as Central Government nodal agency as to issue notices under Section 79(3)b of Information Technology Act, 2000.

Indian Computer Emergency Response Team (CERT-IN)

Indian Computer Emergency Response Team (CERT-In) is a government made Information Technology security Organization. The purpose behind CERT-In is to respond to computer security, report on vulnerabilities and advance powerful IT security rehearses all through the nation. CERT-In was made by the Indian Department of Information Technology in 2004 and works under the support of that division. As per the arrangements of the Information Technology Amendment Act 2008, CERT-In is answerable for directing the organization of the act. In the ongoing Information Technology Amendment Act 2008, CERT-In has been assigned to fill in as the national office to play out the accompanying capacities in the region of cyber security:

  • Collection, analysis and dissemination of information on cyber incidents.
  • Forecast and alerts of cyber security incidents.
  • Emergency measures for handling cyber security incidents.

Critical Information Infrastructure Protection Centre (NCIIPC)

National Critical Information Infrastructure Protection Centre (NCIIPC) is a government organization which has been created under Section 70A of IT Act, 2000 by the Government of India. Its headquarters is located in New Delhi, India.  Important function include to coordinate, share, monitor, collect, analyze, a national-level risk to CII for strategy direction, mastery sharing and situational mindfulness for early notice or alarms. The essential duty regarding ensuring CII framework lies with the organization running that CII. It has been designated as National Nodal Agency for Critical Information Infrastructure Protection. A report of the National Critical Information Infrastructure Protection Centre has identified the following as critical sectors:

  1. Power & Energy
  2. Banking, Financial Services & Insurance
  3. Telecom
  4. Transport
  5. Government
  6. Strategic & Public Enterprises

National Cyber Coordination Centre

National Cyber Coordination Centre has been implemented by the Indian Computer Emergency Response Team (CERT-In). NCCC derives its power from Section 69B of IT Act, 2000. It will be India’s first layer for digital risk checking and all correspondence with government and private specialist organizations will be observed by it. Its command is to check web traffic and correspondent metadata coming into the nation to distinguish continuous digital danger and alarm different associations.

NCCC additionally will arrange between intelligence agencies, explicitly during system interruptions and cybercrimes. It will have virtual contact with the control room of all ISPs to check traffic inside the nation, streaming at the purpose of passage and exit, including worldwide portal. Aside from observing the internet, the NCCC will likewise investigate different dangers presented by digital assaults. It will have top specialists from the digital security field and will run like comparable association in different nations, for example, the US, the UK, France, Germany, and so on.

Data Security Council of India (DSCI)

Data Security Council of India is a body established in the year 2008 by the National Association of Software and Service Companies (NASSCOM). NASCOM is a non-profit organization that was set up in 1988. In 2013, NASSCOM started “10,000 new companies” in the nation. Its principal objective is to start 10,000 new companies in the nation by 2023. The NASSCOM under its supervision operates Data Security Council of India. The core aim of the Data Security Council of India is to protect national interest by protecting the data. It additionally outlines the gauges and activities for keeping up with protection and other cybercrimes standards. It likewise arranges meetings and makes basic stages for the enterprises, thinks tanks and different pioneers of the information insurance industry to meet up.

Conclusion

In the end, we can say that a crime-free society does not exist in today’s time so precautionary measures should be taken to tackle the crime. Also, as the technology is enhancing day by day more crimes are reported on electronic frauds. Information Technology Act, 2000 and Indian Penal Code, 1860 contains the provisions for punishing the offenders or the wrongdoers against the cybercrime. One should know the methods of filing the complaint online for the cybercrime committed against them. Rallies, workshops, online seminars should be organized so that the people who are unaware about the methods to tackle the cybercrime should be made aware of. Wide ranges of information whether it is personal, governmental, or corporate, need high security.

A portion of the information, which has a place with the administration guard framework, logical research and advancements, banks, protection innovative work association can be greatly affected by even a small amount of negligence to these data So while concluding we can say that as it is rightly said, “Precaution is better than cure” and thus, precautionary measures should always be taken to keep everything safe and secure.

Author: Abhinav Rana from University School of Law and Legal Studies, GGSIPU.

Editor: Arya Mittal from Hidayatullah National Law University, Raipur.

Law Regarding Consensual Intercourse with Minors in India

Reading time: 6-8 minutes.

Law is a mere reflection of the interest of its society. In a modern society, any change with time is certain. With ever evolving contemporary ideas and perceptions from different groups of people, it is common for the law making bodies to face hardship to take quick decision when it comes to conflict of interests.

Such is the condition of every country, struggling to answer the irresolvable question, ‘At which age is it right for a minor to consent to indulge oneself in a sexual intercourse and is it ethical to allow a minor to have a consensual intercourse?’.

The Court is under immense pressure while dealing with the current issue, because every decision made regarding the same reflects the tradition, culture and history of the country.

The word “consent”, is the manifestation one’s actual will to do any act. “Will”, on the other hand is the mere desire to do an act. Therefore, any person who engages in a sexual intercourse with another person with will and no consent becomes liable and held guilty for committing sexual offence.

Until 2017, the IPC did not recognize marital rape, when the SC brought down the exception to Sec. 375, vesting men the right to consummate marriages with their wives under the age of 15-18, in its judgment of the case Independent Thought v. Union of India.

This law curbs the right of consent to all women who are legally married i.e. wife, who is below the age of 18 is restricted from a sexual relation and after attaining majority she has no power to reject due to presumption of matrimonial consent.

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What is the concept of ‘statutory rape’ among minors?

Any form of sexual relationship between two minors, irrespective of their consent is known as statutory rape, which is unlawful because either parties of such act is below the legal age to get involved sexually, further making them incapable of giving their consent to the said act. Hence, the consent is irrelevant.

Statutory rape falls under Section 375 and 376 of Indian Penal Code. The Convention of Elimination of Discrimination against Women (CEDAW) supports the view of withdrawing the legal effect on child marriage. Due to this, after 1980, India treats child marriage as voidable.

The other 3 major reforms in the sexual intercourse laws of India:

1. Protection of Children from Sexual Offences Act, 2012

  • CHAPTER II of the Act:

In order to protect the children from any form of sexual assault, sexual harassment to which they are incapable of giving their consent, such as

  1. Penetrative Sexual Assault
  2. Aggravated Penetrative Sexual Assault
  3. Sexual Assault
  4. Aggravated Sexual Assault
  5. Sexual Harassment
  6. Chapter III of the Act

Under this chapter using child for pornographic purposes and about the respective punishments are defined.

  • Section 2(d) of the POCSO Act defines a ‘child’ as to any person below the age of 18. This act provides justice without any gender discrimination as every person under the age of 18 who are incompetent to give their consent. Hence, any person, involved with any sexual act covered under this act and the victim involved is under the age of 18, the offence is punishable as it is considered to be violation of this Act.
  • Section 34(1) states on offence committed by the offender, who is a child himself, shall be tried under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
  • Sec. 19 of the Act encourages and make it obligatory to report such crime to the Special Juvenile Police Unit or the local police enshrined in POCSO, failure of which is punishable with imprisonment of either description which may extend to six months or with fine or with both.

2. Criminal Law (Amendment) Act, 2013: Sexual Offences

a) Protection of Children from Sexual Offences Act, 2012.

  • The age of a “child”, was reduced from 18 years to 16 years under Section 2(d).
  • Punishment for rape under the act was increased from 7 years imprisonment to 10 years imprisonment and fine.
  • Section 42: An act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E, 509, 376AB, 376DA, and 376DB  of IPC, where the offender shall be liable to punishment under this Act or under the Indian Penal Code.

b) Code of Criminal Procedure (CrPC), 1973

  • Section 161: An alleged woman against whom, any such offence has been committed shall be recorded, by a woman police officer or any woman officer under.
  • Section 273: states that while recording the evidence of a victim woman below the age of 18, the court will ensure that such woman is not confronted by the accused.

2. Criminal Law (Amendment) Ordinance, 2018

A law initiated primarily to amend certain laws related to rape of minors.

  1. Indian Penal Code (IPC), 1860
  2. Enhanced the punishment for rape under IPC, where the minimum imprisonment has been increased from seven years to ten years rigorous imprisonment.
  3. Then
Age GroupOffencePunishment
Below 12 yearsRapeRigorous imprisonment from 20 years extendable to life imprisonment, and fine
Gang RapeLife imprisonment and fine.
Below 16 yearsRapeMinimum rigorous imprisonment of 20 years that can be extendable to life imprisonment and fine.
Gang RapeLife imprisonment, along with fine.

b) Code of Criminal Procedure (CrPC), 1973

  • The maximum time limit to complete investigation was decreased from three to two months.
  • An appeal in any rape case has to necessarily be disposed off within six months.
  • No anticipatory bail to be granted to the alleged accused of sexual assault against minor girls below the age of 12 and 16.

c) Indian Evidence Act, 1872

To determine the consent of the victim, his past sexual experiences are disregarded. This provision was extended to include girls below 12 and 16 years of age as victims.

LAWS GOVERINIG OTHER COUNTRIES AROUNG THE GLOBE:

COUNTRYLAWAGE OF CONSENT
JAPANThe Penal Code of Japan.Juvenile Obscene Act.The Civil Codes.13 years     15-18   20 years
GERMANYPenal CodeCriminal Code14 years14 – 16 years
MEXICO 16 – 18 years
FRANCEPenal Code15 years
RUSSIACriminal Code16 years

What is the reasoning for criminalizing consensual intercourse?

The British Jurist of the 18th century, Sir Matthew Hale defined rape as, “An accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.”

After sheer struggle, some feminists have favored these laws, as it is the yardstick to combat the sexual abuse of young girls. A statutory rape charged, would not require proof of force or coercion, therefore young and vulnerable girls are, guarded against such crimes committed by the adults and actual rapists via deterrence and real possibility of retribution.

It is legally required to have a right and a set age for the same, without any moral obligation. Specifically, in a country where the age of consent for a married woman is lower than an unmarried woman and where marriage is taken as a license to rape, this must be reformed.

The law relating to Statutory rape must be stringent as this section of society seeks to protect minors who are mentally- incapacitated as well. As stated earlier, minors are incapable to understand the dire consequences of their actions and desires, it is the duty of law to protect the innocence of the youth.

In conclusion

Maybe, the laws of consent must be flexible and realistic just to ensure and minimize the victim rate. Similarly one must be, appreciated for attaining sexual maturity quicker, enabling them to make choices about their own bodies. 

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To give up one’s “virtue” to a person who is unworthy and most importantly unwilling to pay with his hand in marriage is gimmick and speaks about the poor judgment of the youths of today.

The forbidden fruit is always more lucrative and severe restrictions fuels curiosity. By criminalizing consensual sexual activity, we deny them access to protective and safe medical procedures. This becomes one of the reasons for the increase in abortions.

A law fixing the age of consent must be, understood in a manner that protects our children against abuse as well as prosecution. These laws should serve an educative purpose and provide reformative punishments.


Author: R. Danyuktaa Shruti from VIT University, Chennai.

Editor: Tamanna Gupta from RGNUL, Patiala


Circumstantial evidence

Reading time: 6-8 minutes.

In a recent judgement in the case of Md. Younus Ali Tarafdar v/s The State of West Bengal, the accused was acquitted by the Apex Court after a long trial in different courts which lasted 36 years. The appellant had been held liable on the basis of a signature, which was for the slip for repair of an Anglo-Swiss watch, apparently belonging to the deceased’s brother and last worn by the deceased.

The testimony by 3 people only pointed that the last person the deceased met was the appellant and on basis of those testimonies and the fact that he was in possession of that watch, the appellant was sentenced of rigorous life imprisonment under Section 302 with Section 34 and under Section 102 of Indian Penal Code. Later the appeal was dismissed by High Court and the decision of trial court was affirmed.

However, acquitting the accused, the Supreme Court noted in its judgement: “There is no direct evidence regarding the involvement of the appellant in the crime. The case of the prosecution is on the basis of the circumstantial evidence… A close scrutiny of the material on record would disclose that the circumstances relied upon by the prosecution to prove the guilt of the appellant were not complete and do not lead to the conclusion that in all human probability the murder must have been committed by the appellant”. It was held that if there is any conviction on basis of circumstantial evidence, it should be so when there is no room left for the doubt and the hypothesis is proven right beyond any reasonable doubt.

Meaning of circumstantial evidence

What is evidence? Evidence is the documents and materials presented by prosecution and defence for the court to reach a decision or verdict. That evidence can be oral, documental, Real, Primary, Secondary, Hearsay, Direct and Circumstantial evidence. The evidence gives base to the argument of someone’s fate; as they decide a person’s guilt or innocence.

Circumstantial evidence is defined by Peter Murphy as “evidence from which the desired conclusion may be drawn but which requires the tribunal of fact not only to accept the evidence presented but also draw an inference from it.”  Circumstantial evidence is referred to as indirect evidence. Direct evidence is given more preference than circumstantial evidence as it does not require any type of inference and it is a direct proof of an illegal act committed. But in the cases of serious offence such as murder for which the punishment is death penalty, conclusion cannot be drawn solely on the basis of circumstantial evidence as it needs the help of inference to prove it.

Legal provisions involved

Section 106 of Indian Evidence Act 1872 states that – “Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”

For instance, if the wallet of the deceased person was found in house of accused after his murder, the burden of proof is on accused to show how he came to be in possession of the deceased person’s wallet and that he has not committed murder. This is an example of “Last seen doctrine” where it can be implied that it is the accused who has committed a crime, just because he was last seen with the victim. Even then, conviction cannot be based on this said assertion solely, but in such cases the burden of proof is on the accused person.

Conduct of the accused also plays an important role in corroborating circumstantial evidence. If the accused has behaved in an abnormal and unnatural way such as absconding, inability to prove his alibi or contamination of crime scene etc., which can establish the mala fide intention of the accused or can destroy his innocence; this can be a relevant factor in building the chains of events which can lead to him being liable for the said crime.

Can circumstantial evidence be considered conclusive?

Judiciary has not concluded whether the circumstantial evidence can be considered as the evidence solely for the conviction or innocence of a person; however in such cases the judges and prosecution are expected to take higher precautions because it varies from case to case how much emphasis should be given to such evidences. It is also essential that the circumstantial evidence should be in corroboration with other indirect evidences including DNA test, finger print, and witness, and handwriting, discovery of an object in possession of accused which can connect the accused to the crime and set his guilt beyond any reasonable doubt or can prove his innocence without any question.

In cases where the prosecution has solely based the case on circumstantial evidence, then the courts have to satisfy that various circumstances building a chain of events rule out any possibility of the innocence of accused. If in case the chain of events has any loophole or a break in between, then in such cases the consequent circumstances cannot be considered to establish the guilt of the accused.

There are various cases where circumstantial evidence plays an important role like adultery and dowry cases. But as circumstantial evidence is indirect evidence, it cannot be taken into consideration without proper examination. There are certain cases where circumstantial is not considered to be strong evidence. For instance, if Mr. A saw Mr. X lying dead on the floor and Mr. Y was holding a wooden stick which was covered with blood, the question which arises in one’s mind is regarding intention to kill. The main reason behind the death of Mr. X cannot be determined without proper examination. 

Case laws

In Shah Guman Mal v. A.P. [AIR 1980 SC 793], a person was found in possession of gold with foreign markings and the Supreme Court held that burden lay upon him to account for his possession.

In State of Tamil Nadu v. Arunachalam [1992 Cr Lj 3930 (Mad)], the sample of flour was taken from a grocery store which was not good in quality and the person who was accused took the plea that it was kept not for human consumption but for pasting purpose. It was held that it was a special knowledge of the accused and it was for him to prove such knowledge and having not done so, it could not be said that the burden cast on him had been successfully discharged.

In Provincial Government, Central Provinces and Berar v. Champalal [(1946) Nag 504] and in Gullegar Setty v. State of Mysore [(1953) Mys 298], it was held that non-appearance as a witness would be the strongest possible circumstance to discredit the truth of the case.

In Sucha Singh v. State of Punjab [AIR 2001 Sc 1436], the court said that depending upon the circumstantial facts of the case, it could be presumed that all the abductors were responsible for the murder. If not, it was held that it was for the abductors to explain what they had done to the victim.

Conclusion

From the following facts and circumstances, we can figure out that circumstantial evidence plays a vital role during the investigation process as well as during the examination of the facts. It also helps to find out the motive behind the act or crime. But it does not mean that circumstantial evidence provides relevant fact of the case all the time. Therefore, we can conclude by stating that circumstantial evidence gives us a general idea and fact of the case and if it is properly analysed and examined, then it can lead to a definite conclusion.

Authors: Uttara Roy from NEF Law college and Antish Rathore from Alliance University of law, Bangalore.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.