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Why Tejpal did not get Anticipatory bail?

Anticipatory Bail envisaged in 438 CrPc with an intent to protect people who may face arrest due to false accusation.As there was no remedy for a false complaint earlier and the accused person have to apply for Bail after his arrest which could cause maligning of the image of the accused person if the complaint was false and it was against the principles of personal liberty.  In order to protect the accused from arrest due to false complaint and protect his image the provision of Anticipatory bail was introduced in CrPC.

But again in cognizable offence bail is not a matter of right and there are certain conditions which needs to be fulfilled by the accused person before an anticipatory bail application is to be decided.

In the case of Tarun Tejpal he is facing a serious accusation of Rape, which in itself is very grave which generally make court reluctant in giving anticipatory bail in such grave cases as a) Gravity of offence is one parameter but it is not the only parameter in deciding anticipatory bail plea.But still if the accused is fully cooperating with the investigation the court can still think that custody in this case is not necessary. But in this case it is clear from so many days despite the police after giving summons he is b) avoiding investigation. Then again the principle of anticipatory bail is to protect the victims from false complaint to which c) Tarun Tejpal has pleaded that there is political vendetta to destroy his image. But again this plea is not a tall convincing. As why would a lady would malign her image or would take a risk to put a grave accusation of Rape on a man while there is a greater risk that woman image would  more likely to be torn off with such grave accusation. d) On top of it Goa police has a genuine need to take custody of the accused in order to further their investigation. e) Tarun Tejapal also holds an Influential position he can influence victim and her family.

Between the conflicting interests of individual liberty and society and considering the points a) to e) there is no reason that Tarun Tejpal case is a fit case for Anticipatory Bail. But

But what I failed to understand why did Tejpal played a game of avoiding Goa Police, when he was summoned he should have directly presented himself to the police.He should have applied for anticipatory bail to Goa session court immediately after Goa police took suo moto cognizance.He wasted his time and made his case weak by applying in Delhi High court for an anticipatory bail.At this stage when statement of complainant is recorded, when prosecution has made their case strong and it is matter of time that the case would now go for trial, Tejapal is applying for anticipatory bail. I feel that things unfolded in 2-3 days would itself hamper his chances of getting a bail leave alone anticipatory bail.

The defense who failed to defend accused in Nirbhaya’s case.

The trial of Nirbhaya’s case is now over and the five accused were convicted and awarded highest form of punishment as per the law. But how the four accused before the Saket court defended their case. Although I personally feel that there should be no defense to their heinous acts, which shook the conscience of the country. But for a fair trial the accused person were given an opportunity to defend their case in consonance with the principles of natural justice. They all took different pleas but all their pleas were demolished by the evidence produced by the prosecution.

Here are the brief about various defense pleas taken by the accused in the Nirbhaya’s case and how each of their plea rejected by their Lordship.

1. Plea of Alibi

All the four accused took the plea of Alibi; they all stated they were not in the alleged bus where this heinous crime took place. But this plea was completely demolished by the inconsistencies in the statements of their own witnesses.

The evidence produced by the prosecution in which the DNA profiling of all the accused was found inside the bus and on the Nirbhaya’s clothes suggested their presence in that alleged bus on that fateful night.

2. DNA evidence is unreliable.

It was pleaded by the accused that the DNA profiling was unreliable as there is an apprehension that police has manipulated the MLC reports against the accused person, They also submitted that police is falsely creating a plot and the DNA report is fake.

The Prosecution established the authenticity of the DNA, MLC reports by showing the chain of transfer of these samples from different spots, they have also clearly established the tamper proof mechanisms implemented by the police and how the court could rely on the evidence on its accuracy and authenticity.

The stand of prosecution was believed by their lordship hence the stand of defense was again discredited.

3. Statements of Prosecutrix were tutored/Prosecutrix was not in the position to give statements and cannot be relied upon.

This Stand of defence was again demolished by the prosecution,  The prosecution stated that prosecutrix was conscious while she was giving her dying declaration and this fact was again certified by the doctors who were treating the prosecutrix, Then again it is hard to believe that prosecutrix who was facing an apprehension of death would give tutored statement.

4. Mukesh was only driving bus he had no participation in crime.

The prosecution has established its case U/s 34 IPC i.e  criminal conspiracy beyond reasonable doubt, There was premeditated plan and an overt act was done as per unlawful agreement between accused person. It is irrelevant whether the accused was driving the bus. Being a part of conspiracy he was equally responsible for the acts of others. The blood stains of Nirbhiya on clothes of mukesh clearly establishes his participation, even if he is not a participant still he was equally responsible.

5. Inconsistencies in Prosecutrix friend FIR.

There were Inconsistencies in the FIR of the prosecutrix friend relating to the identity of  accused person and hence plea of defense was that the accused was of a mistakenly identified.

Lordship on this point held that merely some averments in FIR cannot demolish the prosecution case completely as FIR is not conclusive evidence and it needs to be corroborated with other evidence. The stand of the defence was again demolished.

Conclusion

The case of the prosecution was based on strong scientific evidence which was again corroborated with statements of other witnesses especially the statements of prosecutrix herself and her friend which led to establish the case against accused beyond reasonable doubt and thereby vitiating all the defense pleas which ultimately led to their conviction.

Capital punishment for Rape Justified ?

The debate over the capital punishment has in the recent past acquired renewed vigour. The government of the day has been insisting on the increased use of capital punishment for crimes other than murder, particularly rape. Certain women’s group have welcomed this. The judiciary too has been awarding the capital punishment for violent crimes with increased regularity, with the awarding of death penalty to all the 26 involved in Rajiv Gandhi assassination, it was time for the abolitionists

to once again hold a banner of protest. Despite being a party to the ICCPR1 towards abolition of death penalty, India appears to be heading the other way. The Constitutional validity of §302 IPC was questioned before the Supreme Court in Jagmohan Singh v. State of U.P 2 article 14 of the Constitution of India and suffers from excessive delegation. After tracing the judicial decisions which upheld the constitutionality of the death penalty, and the evolution of the ‘rarest of rare’ test in the landmark Bachan Singh case,

by the court in subsequent cases.Till date the capital punishments have only acted as deterrence for those families who could hardly earn bread and butter forget about hiring a smart lawyer. In the year 1994, a man named Dhannajay was given capital punishment for raping and then killing a minor girl. His act as such was brutal calling for severe action against him, but it seems that the ends of justice have not actually been met out. So many cases of murder go not unnoticed but without any punishment because the doer has money to defend himself.

In order to do justice to one person we cannot do injustice to so many others. Why should the innocent family of the rapist suffer for an act for which he the culprit is the only one responsible?Moreover would capital punishment really bring justice? Thanks to the idea of capital punishment that an easier way to do away with the crime has been found by the doers of the heinous crime. To kill the victim and throw her somewhere and move away and if lucky enough then the crime would never

be traced back to the offender. The cardinal questions to be asked here is are the circumstances of the

crime as such that there is no alternative but to impose death sentence?

Hindu dharma talks of nark for evil doers, Muslim talks of jhanum and Christianity talks of hell for evildoers but at the same time without any exception every religion talks of reforms. Giving a chance to the culprit to compensate the victim would go a long way in reforming the person. Moreover Social protestation towards such things would also help in the long run. The unfortunate part is that even the law is very restricted and limited in its definition about rape.§375 IPC specifies that sexual intercourse comprises rape wherein penetration alone suffice to constitute that sexual intercourse which amounts to offence of rape. Least heed has been paid to the fact that rape is much wider a term and as such should be given a much wider interpretation. Even if rape is not done in the strict sense of §375 IPC, the prima facie impression of rape having been

International Covenant on Civil and Political Rights

(1973) 1 SCC 20

Bachan Singh v. State of Punjab AIR 1980 SC 898

Dhananjoy Chatterjee @ Dhana v. State of West Bengal and Ors. AIR 1994 SC 626

on the ground that imposition of capital punishment of death sentence is violative of

it is proposed to examine how the test has been applied Is Capital Punishment Justified in Heinous Crimes Involving Women?

committed does an equal harm to the victim. Nonetheless, it is not intended to take sides; it is said that if justice is to be delivered it should undoubtedly be fair and reasonable. Justice should mean justice. Also if torture is deemed best for the rapist then, why not this torture is constructive? For instance, the convicted can be made to compensate the victim or her family by his income through employment or community services. Even if all this sound a bit dis satisfactory to the victim of rape or her family then it is submitted that capital punishment is quite a merciful punishment for a crime as heinous as rape. Why should the rapist be killed with a pain of just two seconds contrary to the victim who in a society like ours would still live with so much shame and un-acceptance? If the girl has to continue with this stigma throughout out her life let the rapist also live with the stigma of rapist. He should be made to suffer equally, if not to avenge then at least to strike a balance.

By-:  Priyan Garg

Solution for India’s Rape Problem

I have found one of the organisation in US which works for Rape related issues-:

Here is a glimpse of what they actually do, and we will find solution of our problem in there working-:

A brief overview of one of the Rape Crises centre in Los Angeles

About Us

 

What We Do

The Rape Treatment Center (RTC) provides services for victims of rape 24 hours a day, 7 days a week …
We offer comprehensive, free treatment for sexual assault victims and their families, including 24-hour emergency medical care, forensic examinations, crisis intervention, long-term professional counseling, advocacy, and accompaniment services. The RTC is the only facility in Los Angeles, and one of the few in the country, where sexual assault victims can receive all of the services they need in one place, 24 hours a day. Since 1974, over 30,000 victims have received the RTC’s expert care.

In 1999, the RTC established an innovative, state-of-the-art medical/forensic clinic to provide 24-hour emergency care and evidence collection services for victims of rape and sexual abuse in the immediate aftermath of victimization.

   

 

 

 

 

We offer training for police, prosecutors, schools, and other victim service providers…
To enhance the services victims receive wherever they turn for help, the RTC provides training programs for police, prosecutors, judges, hospitals, schools, mental health agencies, rape crisis centers, and other victim assistance organizations across the country.

We reach out to college campuses nationwide…
The RTC has a leadership role in helping to solve the widespread problem of sexual assault on our nation’s college campuses. The RTC published a landmark report that was sent to every college president in the country. The report outlines specific policies and programs colleges can adopt to reduce the incidence of sexual violence among college students and provide support for students who are victimized. Colleges throughout the United States have adopted the RTC’s recommendations.

The RTC initiated federal legislation that gives college students who are sexually assaulted on campus by other students important rights in campus judicial proceedings, including the right to know the outcome of the disciplinary hearings concerning their cases.

The RTC produced an award-winning film, CAMPUS RAPE, to inform students about stranger and acquaintance rape and effective prevention strategies. Over 10,000 copies of the film have been distributed to colleges throughout the United States.

The RTC produces educational posters, print ads, and television public service announcements for colleges, fraternities, sororities, rape crisis centers, and police departments nationwide.

We provide prevention education programs that reach tens of thousands of teenagers in public schools each year…
Adolescents are at high risk for rape and other forms of sexual abuse. The RTC is at the forefront of developing innovative programs to reduce the incidence of victimization in this age group.

RTC staff work on-site in high schools to inform adolescents about sexual assault and to help them develop and practice self-protection skills.

In addition, the RTC provides Roads to Respect®, an innovative awareness and prevention program for middle schools that addresses the problem of peer sexual harassment among students.

The RTC also publishes and distributes special educational materials for adolescents, including the magazine HOW IT HAPPENS®.

We created a model facility for children who are suspected victims of sexual abuse…
Stuart House, an innovative facility established by the RTC, remedies many of the problems in the traditional system that often revictimize these profoundly traumatized children, such as multiple, repetitive interviews in cold, institutional settings; low prosecution rates; and critical shortages in expert medical care and therapy services. The following stories illustrate some of these problems:

John, a seven-year-old boy was sodomized on multiple occasions by a neighbor. After the doctor discovered his victimization, John was interviewed by more than a dozen different professionals representing six different agencies. Eight months later, the case still had not been filed for prosecution.

Mary, a four-year-old girl, was sexually assaulted by a man who was an acquaintance of her family. She was given three different pelvic examinations at various medical facilities because of a lack of coordination among agencies and the unavailability of properly trained physicians.

Stuart House was created to solve these problems by looking at the system through a child’s eyes. Stuart House brings together — in one location — police, prosecutors, and child protection personnel from various agencies who work together as a team in a special environment designed for children. The close collaboration among agencies eliminates unnecessary interviews of traumatized children, ensures that crucial services are provided, and enhances evidence collection and prosecutions. Stuart House also has a comprehensive treatment program that provides individual, family, and group therapy services for child victims and their families, as well as a Court School for children who testify in criminal proceedings. Stuart House has received international recognition as a model program. It is one of the most comprehensive facilities of its kind in the country.

We provide consultation and public information…
The RTC serves as an information resource for the news media, television and film production companies, government agencies, citizens, and victim service providers across the country on issues related to rape and sexual assault, child sexual abuse, the impact of victimization, and crime prevention. The RTC’s 911rape online information service provides facts, resources, and information about rape and sexual assault for victims and the general public.

An overview of a Rape Trial

We all know recently the rape incident happened in Delhi which had shaken the conscience of the whole nation yes the Nirbhaya case which outraged the people and the society as a whole and which directed the legislature to look into the laws related to sexual offences.

But here we are looking at the procedure adopted by the courts to try and punish the perpetrators, How police Investigate the issue and how strings of justice are pulled, and what ground the perpetrators seek to evade, are they successful or not. Here the different elements which are the key ingredients to prosecute the perpetrators.

  1.    FIR/Complaint-: The first step taken by the prosecutrix or the family after any rape incidence is to lodge a complaint in a nearest police station ideally without any delay, but a delay in lodging an FIR could be taken as a defence but is not a strong defence, As court would normally believe that the Delay is due to gravity of the offence and normally The amount of embarrassment faced by the prosecutrix and her family, would not facilitate her to open up and report the matter.Tulshidas Kanolkar v The State of Goa – Citation: (2003) 8 SCC 590 – Supreme Court of India

 

  1. Medical Evidence-: Medical evidence from the prosecutrix as well as from accused is taken and sent to forensic investigation, Medical evidence like Blood Sample, Semen, Vagina swabs, Test of Hymen etc. ossification test is also done in some  cases in which the age of the prosecutrix or the appellant is to be determined, but this test only gives indication and question related to juvenile accused could get settled.  However it is the fundamental right of the accused that he can refuse to give medical sample, However this act may weaken up his case, Even if the medical report does not show torn hymen or any injury due to which the prosecutrix was subjected to rape, This does not weaken up the case as medical evidence is not so conclusive that the incidence have not taken place. The medical evidence is usually opinion evidence (Duraipandi Thevar v. State of Tamil Nadu, AIR 1973 SC 659: 1973 Cr. L.J. 602). The medical opinion by itself, however, does not prove or disprove the prosecution case, it is merely of advisory character.
  1. The testimony of prosecutrix -: It is the statement of the prosecutrix which has a high weight than any other evidence, First instance of prosecutrix statement is when an FIR was lodged and it is before the investigating officer that she gives the detailed information about the incidence. Then again she has to make a statement before the magistrate u/s 164 CrPC.Now if there is minor variation between the two statements then it can be easily ignored, major variations that change the direction of the trial can be used as a defence by the accused.Supreme Court has held that in rape cases the testimony of the victim cannot be considered to be the gospel truth, though in normal circumstances her statement has to be relied upon.

However the general rule is “If the totality of circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.Dyava v/s State of Karnataka”

  1. The statements of other witnesses-: The statements of prosecution witnesses are used for corroboratingthe statements of prosecutrix, but can be rebutted by virtue of cross examination un corroborated statements of prosecutrix which is not a minor raise a suspicion but uncorroborated statements of a minor girl is presumed to be true unless they are not contradictory to other facts. If a witness turns hostile then there is presumption that the witness was influenced by the defence.

The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. The view that the evidence of the witness, who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of Supreme Court in the cases : a. KoliLakhmanbhaiChanabhai v. State of Gujarat (1999) 8 SCC 624, b. Prithi v. State of Haryana (2010) 8 SCC 536, c. SidharthaVashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1, d. Ramkrushna v. State of Maharashtra (2007) 13 SCC 525.

Conclusion

There is a general presumption that no woman would stake her future prospects of marrying and her respect for falsely implicating the accused, especially if the girl is minor.

Generally court favour the victims unless it is shown that there are highly probable grounds that the accused has not done the heinous act, even the plea that character of the woman is bad do not hold ground as law does not permit that even if the woman is a prostitute no one has a right to rape her.