Motherhood as everyone says is the worlds best relationship between a child and her mother, call is globalisation or modernisation this precious relationship has turned into a business to some people and dreams come true to some other. Surrogacy is an arrangement or call it an agreement between a woman and the intended parents who carries the child of these parents.
The word surrogate has its origin from the Latin word “surrogates” meaning a substitute that is a person appointed to act in place of another. The report of the committee of inquiry into human fertilization and embryology or the Warnock report (1982) termed surrogacy as the practise whereby one woman carries a child for another with the intention that the child should be handed over after birth to the intended parents.
Should we be concerned about exploitation of motherhood and corrosion when women are paid to be pregnant and deliver babies?
To what extent it is right for the society to permit women to make contracts about the use of their babies.
What does motherhood mean and where is the nuptial relationship lost after giving the child to the intended parents.
Does the surrogate child have the right to know about the identity of her nuptial mother?
Catholics-paragraph 2376 if the catechism of the catholic church states that “techniques that entail the disassociation of husband and wife by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus) are immoral’’
Most important thing that is to be considered here is that most of the foreign nationals are exploiting Indian poor women especially unmarried by showing them the lust for money and entering into surrogacy arrangements which is spoiling the lives and social relationships of these women the government has to look into this issue seriously and a determined law is to be framed in this aspect. On one side this sort of surrogacy births give a ray of hope to those people who cannot conceive but to the other side and to a very large extent this sort of arrangement is being used only for exploitation purpose which has to be kept in mind.
In order to stop investigation by a police officer due to malfide, the writ under Article 226(mandamus) must be moved and magistrate does not have any power to stop the investigation and call for inquiry u/s 159 CrPC.
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
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.
Indian Penal Code provides for six types of punishments for offences therein. Life imprisonment (also known as a life sentence or life incarceration) is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life. Life imprisonment, as distinct punishment for certain grave offences under the Indian Penal Code was authorized by law w.e.f. 1st January 1956 when the Code of Criminal Procedure (Amendment) Act, 1955 came into force. It was earlier known as transportation for life. There are in all fifty-one sections in the Indian Penal Code which provide punishment with imprisonment for life  . There is always a debate as to the exact duration of imprisonment of life. This article purports to analyse the law in India relating to life imprisonment through study of various statutes and case- laws prevalent in India.
TERM AS PER STATUTORY LAW :-
Various statutes in India dealing with criminal law have laid down provisions relating to life imprisonment. Some of the important provisions are as follows:
Indian Penal Code,1860 :
Section 55: Commutation of sentence of imprisonment for life
In every case in which sentence of [imprisonment] for life shall have been passed, [the appropriate Government] may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years.
Section 55, I.P.C. provides that when sentence of imprisonment for life has been passed, the appropriate Government may without the consent of the prisoner commute the punishment for imprisonment of either description for a term not exceeding fourteen years. This section empowers the appropriate Government to commute the sentence of imprisonment of life. Exercise of such right is at the discretion of the appropriate government. This section does not lay down that life imprisonment shall be an imprisonment for fourteen years and a prisoner is not to be automatically released after expiry of fourteen years of imprisonment. It is for the appropriate Government to commute the sentence and for this purpose Rules have been framed by the State Government.
Section 57 – Fractions of terms of punishment
In calculating fractions of terms of punishment, [imprisonment] for life shall be reckoned as equivalent to [imprisonment] for twenty years.
Section 57 of I.P.C. provides that in calculating fractions of terms of imprisonment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. Section 57 does not say that imprisonment for life shall be deemed to be transportation for 20 years. For all purposes, imprisonment for life must, prima facie, be treated as imprisonment for whole of the remaining period of the convicted person’s natural life.
Code of Criminal Procedure :-
Section 432 – Power to suspend or remit sentences.
(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions that the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
Section 433 – Power to commute sentence.
The appropriate Government may, without the consent of the person-sentenced commute –
A sentence of death, for any other punishment provided by the Indian Penal Code, 1860;
A sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
A sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced, or sentenced, or for fine;
A sentence of simple imprisonment, for fine.
Section 433A:- Restriction on powers of remission or commutation in certain cases.
Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least fourteen years of imprisonment.
The appropriate Government has power under Sections 432 and 433, Cr. P.C. to suspend or remit or commute the sentence while Section 433A of Cr. P.C. imposes restrictions on the powers of remission or commutation in certain cases.
Under Section 432 of the Code of Criminal Procedure, the appropriate Government has the power to remit the whole or any part of sentence to which the person is convicted. Under Section 433 of the Code, the appropriate Government has the power to commute the sentence of imprisonment for life to imprisonment for a term not exceeding fourteen year or to a fine. Section 433A was enacted to deny premature release before completion of 14 years of actual incarceration to such convicts who stand convicted of a capital offence. The period of detention undergone by an accused as an under trial prisoner against the sentence of life imprisonment can be set-off only if the appropriate authority passes an order under Section 432 or Section 433 of the Code. In the absence of such an order passed, and apart from the provisions of the relevant Jail Manual, imprisonment for life would mean imprisonment for remainder of life.
TERM OF IMPRISONMENT FOR LIFE IN OTHER COUNTRIES:-
In the USA, life imprisonment generally continues till the prisoner dies. Sometimes life terms are given in sentences are disproportionate to the duration the prisoner is expected to live, for example, a 300-year sentence for multiple murders. In actuality, a life sentence does not always mean “imprisonment for life.” Once a period of 10 years or more is over, the convict can be set out on parole.
In Mexico, life imprisonment is an indeterminate sentence. Its term may range from 20 years up to a maximum of 40 years.
UNITED KINGDOM –
In the UK, “imprisonment for life” means a prison sentence of indeterminate length. In many cases, the Home Secretary sets the “tariff”, i.e., the length of the term, for life imprisonment convicts. He has to undergo sentence about 15 years before he can be paroled out.
The German law has fixed minimum time to be served for a sentence of life imprisonment, which is 15 years after which the prisoner can apply for parole.
In Australia, term of life imprisonment is usually 25 years.
Therefore, it can be observed that in most of the countries, duration of life imprisonment is indeterminate but after undergoing imprisonment for certain period, parole can be asked for.
Many people misunderstood life imprisonment as imprisonment for 14 or 20 years. As the criminal law in India did not provide for fixed duration of life imprisonment, there was still a big confusion. Then the Indian judiciary took the responsibility to clean the air and in numerous cases which came before it, laid down the law regarding life-term.
Gopal Vinayak Godse v. The State of Maharashtra and Ors. 
It was held b
y a Constitution Bench that the meaning of a sentence of imprisonment for life is no longer res integra. A sentence of transportation for life or imprisonment for life must, prima facie, be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life. It was further held that unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Cr.P.C., a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison.
This issue again cropped up here and it has been held that, as laid down in Godse’s case, imprisonment for life means sentence for entire life which does not expire automatically at the end of twenty years including remission, because the rules framed under the various Jail Manuals under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code.
In this case, after considering the facts and circumstances of the case, the Court held that ordinarily ‘imprisonment for life’ means sentence of imprisonment for whole of the remaining period of the convicted person’s natural life and that the rules framed under the Prisons Rules do not substitute a lesser sentence for a sentence for life.
The Supreme Court made it clear that life imprisonment is not equivalent to imprisonment for 14 years or for 20 years. Elaborating the point further the Apex Court ruled that there is no provision either in IPC or in Cr.P.C. whereby life imprisonment could be treated as 14 years or 20 years without there being a formal remission by the appropriate government.
In this case it was reiterated that life imprisonment was not equivalent to imprisonment for 14 years or 20 years. Life imprisonment means imprisonment for the whole of the remaining period of the convicted person’s natural life. This Court observed that there was no provision either in the Indian Penal Code or in the Criminal Procedure Code, whereby life imprisonment could be treated as either 14 years or 20 years without there being a formal remission by the appropriate Government.
Supreme Court substituted death sentence to life imprisonment and directed that the accused shall not be released from jail till the rest of his life. The Court observed that if the case of accused does not fall in rarest of rare cases, instead of giving capital punishment, accused can be sentenced to life imprisonment, i.e., till the last breath of his life.
R.Suresh S/o Rowthram v State represented by The Inspector of Police,
In this case, Hon. Supreme Court held that the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. The rules framed by State government under Section 59 of the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.
It thus comes out loud and clear from above mentioned decisions that the “life imprisonment” must be treated to mean an imprisonment for the whole of a convicted person’s natural life. As on today there is no provision either in the Indian Penal Code or in the Cr.P.C, which treats such imprisonment for a definite period of fourteen years or twenty years. The result is that no convict sentenced to life imprisonment can claim release as a matter of right after serving a sentence of 14 years or 20 years, any formal remission or commutation by the Government under law notwithstanding.
What conclusion can be drawn from the above decisions is that life imprisonment is to be interpreted as being imprisonment for the whole of a convict’s natural life within the scope of Section 45 of the I.P.C.
On a careful study of Sections 45 and 47 of the I.P.C. and Sections 432, 433 and 433A Cr.P.C., it can be clearly seen that a prisoner sentenced to life sentence has to serve at least 14 years in prison.
By virtue of Section 433A, the minimum term of imprisonment in respect of an offence where death is one of the punishments provided by law or where a death sentence has been commuted to life sentence, has been prescribed as 14 years. In the series of judgments after the decision in Godse’s case, ‘imprisonment for life’ has been repeatedly held to mean imprisonment for the natural life term of a prisoner, though the actual period of imprisonment may be reduced by virtue of remissions earned. But unless the President, under Article 72 of the Constitution, or the Governor, under Article 161 of the Constitution, exercises his power even with remissions earned life imprisonment cannot be reduced below 14 years. It is, therefore, left to the discretion of the empowered authorities to determine the actual length of imprisonment having regard to the gravity of the offence.
Although Supreme Court in a catena of cases has fixed the term of life imprisonment, but the government however, should come up with a law fixing a definite period of life imprisonment resolving dichotomy and thus, put an end to the series of life imprisonment term-determination cases.
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.
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
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.
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”
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.
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.
The first decision to make is whether you should even cross-examine a witness.
In order to make that decision, you must know what you want to accomplish by cross examining a witness. Authorities on trial practice, following are the factors which are to be considered-:
1 . Did the witness hurt your case by the testimony given on direct Examination? If so, can you minimize or repair the damage on cross-examination?
2. Can you obtain testimony on cross-examination to help your case?
3 . Can you obtain testimony on cross-examination that will hurt your Adversary’s case?
4. Do you need the witness to establish an evidentiary foundation to admit a document or other exhibit in evidence?
5. Can you discredit the testimony given on direct examination? In other words, can you demonstrate inconsistencies in the testimony given on direct examination? Can you demonstrate that the testimony given on direct examination conflicts with the testimony of other witnesses?2
6. Can you discredit the witness? For example, can you show that the witness is biased? Prejudiced in favor of your adversary and/or against your client? Has a motive to lie? Is personally, financially, or otherwise interested in the outcome of the litigation? Was not in a position to see or hear the event that he/she testified about on direct examination?
7. Can the cross-examination be used to enhance or destroy the credibility of other witnesses?
8. Is the witness so important that you should undertake some sort of crossexamination to fulfill the expectations of the case?
Unless the answer to one or more of these questions is “yes,” you would be well advised not to cross-examine the witness.
you state “No questions.” The judge may even understand that you have no questions for the witness because the testimony given on direct examination was not important.
Guidelines for the Cross-Examination
Cross-examination almost always ventures into dangerous territory. The reason for this is that the witness is usually adverse or hostile to your client’s position.
Therefore, you must control the witness and, more particularly, the witness’ testimony. This can be accomplished by following certain guidelines during the cross-examination.
1. Do not ask a question unless you are reasonably certain that you already know the answer. (Some would say do not ask the question unless you are certain you know the answer). Cross-examination is not the time to discover new facts. It is not the time to be curious. Remember, curiosity killed the cat. It may likewise kill your case.
2. Treat the witness fairly. You should not be hostile, especially if you want to gain concessions from the witness, including that he/she may have been mistaken in his/her testimony on direct examination.
3. Use leading questions. A leading question suggests the answer, which is usually “yes” or “no.”
4. Never ask open-ended questions—questions that ask “how” or “why” or that require the witness to explain. These types of questions can lead to disaster. Never allow a witness to explain anything on cross-examination.
5. Listen to the answers. Do not mechanically ask one question after another without listening to the witness’ answers. The answers may contain the favorable testimony that you are seeking to obtain in the crossexamination. When this happens, you have accomplished your task and you should consider ending your cross-examination. On the other hand, if
you do not listen to the answers you may not hear damaging testimony
that should be addressed.
6. Do not allow the witness to repeat (and therefore reinforce in the mind of the judge) the testimony given on direct examination. There is no reason to
ask a question that allows the witness to repeat his testimony. The odds
are very small that the witness will testify differently on cross examination. You know the testimony given on direct examination, the
witness knows the testimony, the judge knows the testimony. So just dive
into your cross-examination.
7. Keep your questions “short and sweet” and in plain English. Your goal is to obtain one fact with each question. Ideally, each question should be posed as a declaratory statement of a single fact calling for affirmation by the witness. This will make the cross-examination much more manageable for you, prevent objections from your adversary (for example,that you are asking compound questions), and allow the judge to more easily follow and understand your cross-examination.
8. Ask the important questions at the beginning and end of your cross-examination. People, including jurors, remember best what they hear first and last. Conclude your cross-examination on a high note—your strongest point.
9. Your cross-examination should be brief. Remember, you are trying to
“score points” to be used in your closing argument. In a lengthy crossexamination, your strongest points will be lost and the less significant points will be forgotten by the judge.
10. Control the witness’ answers. The best way to control the witness’ answers is to ask simple and clear questions. By doing so, you will not give the witness an opportunity to provide harmful testimony. If your question calls for a “yes” or “no” answer and the witness provides additional testimony that is harmful to your case, you should ask the court to strike the testimony as being nonresponsive to your question. Although you cannot “unring a bell,” the judge eventually will understand that the5 witness’ conduct is improper. If the witness answers a question other than the one you asked, ask it again, and yet again if necessary.
11. Do not ask one question too many. Remember the purpose of crossexamination—you are trying to obtain favorable testimony so it can be used in your closing argument. You need not ask the ultimate question that will drive your point home to the judge. Instead, your cross-examination should only suggest the point to the judge. Your closing argument will Drive the point home. Remember Irving Younger’s line from his famous lecture on cross-examinations: “Sit down!”
The use of these guidelines will allow you to be in control of the crossexamination. By being in control, you will be in a better position to obtain the testimony to fulfill the purposes of your cross-examination.
Scope of Cross-Examination
The evidence rules provide that “[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.credibility need not be based on evidence adduced at trial. As a result, you will always be entitled to establish, for example, that the witness is biased or prejudiced, has a motive
to lie, is interested in the outcome of the case or has made a prior inconsistent statement. These areas of impeachment will be briefly examined shortly. In addition to the subject matter of the direct examination and matters affecting the credibility of the witness, the cross-examination may also delve into “additional matters”, subject to the court’s discretion. This means that a witness who “opens the door” to additional matters during the cross-examination may be questioned on the matters as if they were discussed during the direct examination. Moreover, as a practical matter, at the “end” of your cross-examination, you may ask the court for permission to examine the witness on matters not covered on direct examination rather than later calling the person back to the stand as your witness. Challenging the Reliability of the Testimony
At this point, you should have an understanding, or at least an appreciation, of the purposes, guidelines and scope of cross-examination. Now we will examine several specific areas of cross-examination, including challenging the reliability of the witness’ testimony and impeaching the credibility of the witness by demonstrating bias, interest, prejudice, motive, and prior inconsistent statements. Assuming that you proceed with cross-examination, you must, if at all possible, challenge the reliability of the witness’ testimony. This area of cross-examination involves examining the witness on what he/she saw, heard, remembers and is able to describe about an event. It seeks to discredit the witness’ testimony. For example, on direct examination a witness may testify about the cause of an accident (what he/she saw or heard). On cross-examination, you should seek to obtain testimony that the accident occurred quickly and unexpectantly, that the witness was not in a good position to see the accident, etc. The cross-examination should plant a seed in the minds of the judge that the accident may not have happened as described by the witness on direct examination. You should also establish that the witness has forgotten details of the event and/or is unable to accurately testify about an event. This will cause the judge to question the accuracy or reliability of the witness’ testimony on direct examination. For example, on direct examination the witness may have testified about the distances between vehicles before an accident. On cross-examination, you should seek to establish that the witness’ testimony about the distances is not accurate or reliable.
Impeachment means discrediting the witness. In other words, attacking the credibility of a witness. The goal is to demonstrate that the witness and/or the witness’ testimony on direct examination should not be believed. There are various methods of impeachment, including bias, interest, motive, prejudice and prior inconsistent
In today Indian society dowry is like a norm, we see that people spend lavishly on marriages. The root cause of the problem starts from here, The parents of the bride fulfil all the wishes of groom’s family like spending lavishly on wedding, gifting cars etc. when the bride reaches her matrimonial home, The selfishness of groom’s family grows .Now they demand more things like household items, property etc. Not in the condition to fulfil the infinite demands of groom family, The Groom family starts to harass the newly wedded wife so much and so grave that she thinks it’s better to end the life than to live it. In the end the lavishly solemnized wedding ends into tragic death of the bride. The cause of death is not natural that is for sure, it may be due to poison, suicide, even hanging on the ceiling, burns.
This the most common story of all the dowry related deaths .For this common story there must be a common Law on different footing as that of murder and culpable homicide as the cases of murder and culpable homicide demands much greater evidence and are much complicated. The dowry death is covered in sec 304 B IPC which is -:
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called” dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub- section,” dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
1. There must be a death of the woman.
2. The death of the woman must be in un natural circumstances.
3. And there must be evidence that she was subjected to cruelty due to demand of dowry.
So there is a stark difference between section 299/300 and 304B as 299/300 has much wider scope and covers many motives, But sec 304B the main motive is Dowry due to which cruelty and harassment is performed on the bride and due to which she died.
Evidence in 304 B-:
For the protection of harassed party the evidence act comes to rescue for a crime to come under the 4 corners of evidence act, The material evidence is cruelty and harassment on the bride.
113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.
Now due to this section the burden of proof shifts to defendants, now they have to show that they have not done cruelty and harassment in order to evade this section.
Unlike in murder cases there is always presumption of innocence, The section of murder has to pass through quite stringent tests than that of dowry death. In dowry related death those people who are involved in cruelty(relatives) are held to be liable for the dowry death.
So law does not recognizes any crime in forming an intention and to some extent prepratio,for preparation only preparation like raging war against nation (sec 122) and other criminal acts related to preparation.
So the question arises about attempt:
What is an attempt?
So the answer to this question is that:
An attempt is an act done in the prosecution of commissioning of an offence, but because of an intervening act against the will of an offender the act fails.
In Abhayanand mishra v state of Bihar it was stated that there is very thin line between attempt and preparation. To distinguish between these two the circumstances of the case play a vital role. Between attempt and preparation there is always a chance of retreat by an offender or might there is change in intention in not doing that offence, but as soon as the offender moves ahead and acts in the commissioning of crime but his attempt fails because of an intervening act then the case comes within an ambit of attempt(Sec 511).
Ingredients of sec 511 are:
1. mens rea.
3. An act done by an offender to satisfy mens rea.
4. An intervening act done to stop the offence against the will of an offender.
For example A decides to kill B(Mens Rea) He buys gun(preparation) goes to the B house(here is the window is open for offender to retreat back) he pulls the trigger pointing on B(Attempt/He enters danger zone and now the offence comes under 511,307(attempt to murder)).C comes and hits A and he misses B(Intervening act done by C against the will of A).
So if that intervening was not done by C it surely have killed B and A would be successful in its act.But failed act of A comes under 511,307 section.