Showing posts with label medical evidence. Show all posts
Showing posts with label medical evidence. Show all posts

01 September 2020

Non-finding of injury upon the victim of rape does not necessarily mean that there is no rape

So far as regards the non-finding of injury upon the victim, as per the medical evidence, it is to be noted that injury is not a sine qua non for deciding whether rape has been committed or not. It has to be decided on the factual matrix of each case. The Hon'ble Apex Court in (2013) 11 SCC 688, Radhakrishna Nagesh - Vs- State of Andhra Pradesh, it has been held that penetration itself proves offence of rape, but contrary is not true, i.e.,even if there is no penetration, it does not necessarily mean that there is no rape. The Hon'ble Apex Court further held that absence of injuries would justify any adverse inference against prosecution. In (2014) 13 SCC 574; Krishan - Vs- State of Haryana, it was also held by the Hon'ble Apex Court that it is not expected that every rape victim should have injuries on her body to prove her case.[Para No.31]

Non-finding of injury upon the victim of rape does not necessarily mean that there is no rape
    The chastity of a woman ruined as soon as such offence is committed, while in a civilized society, respect or reputation is a basic right. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. Youthful excitement and an attempt for momentary pleasure on the part of a person upon a woman, had a devastating effect in the entire body and mind of the victim. It is to be kept in mind that such offence lowers the dignity of a woman and mars her reputation. The Courts are sensitized that rape is a violation of victim's fundamental right under Article 21 of the Constitution and rape victim is placed on a higher pedestal than an injured witness. Being the most hatred crime, rape tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well.[Para No.33]

02 August 2020

School certificate or matriculation certificate be given the highest preference in determining age of accused or victim

Date of birth controversy - different date of birth mentioned in different documents i.e. school register, aadhar card, anganwadi kendra report, affidavit, voter list/ID etc. - which document has to be relied in determining the age of victim or accused?

    Since the central issue, at this stage, in the present case revolves around the question of determination of age of the victim based on divergent ages as indicated by three documents. Such a determination will naturally have a bearing on the culpability of the Petitioner herein in respect of the offences as outlined in the FIR. It is also noticed that such an issue, indicating conflicting date of birth recurringly comes up before this Court. It may not be out of place here to mention that the role of the State in such legislations at hand is like parens patriae. There seems to be a lot of divergence as to the age of a minor person or child which spread across 11 legislations from 14 years of age to 25 years depending on the purpose of the legislation. However, in so far as the Juvenile Justice Act and the POCSO Act are concerned, the age of majority is fixed at above 18 years. Therefore, an exercise must be undertaken to bring a quietus to such an issue in light of some leading precedents of the Supreme Court of India.[Para No.9]

    In Brij Mohan Singh v. Priya Brat Narain Sinha the Hon'ble Supreme Court held that the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it in the discharge of his official duty, the probability of its being truly and correctly recorded is high. On the other hand, it was held that the same probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. In such case the evidentiary value of the document in question under Section 35 of the Evidence Act varies according to the maker thereof. In the case of Umesh Chandra v. State of Rajasthan it was held that oral evidence in respect of age has no value which could necessarily be proved only through documentary evidence. The court herein disbelieved a horoscope and relied upon the records maintained by the school. In Dayachand v. Sahib Singh the Hon'ble Court held that although the tendency of many to have lesser age recorded in school is well known and can be easily appreciated but cannot be accepted as the same was clearly in conflict with the medical evidence. Thus, in the said case medical evidence which observes the physical developments especially with regard to the bone structure formation opine a certain age which trumped the records in the school register. In the case of Vishnu v. State of Maharashtra the Hon'ble Apex Court has chosen to believe the date of birth as indicated in the birth register maintained by the Municipal Corporation and disregarded the date of birth as recorded by the school register. The reasoning to do so has been that the best evidence with regard to the age of the child is that of the parents of the child. It has further held that credence-worthy documentary evidence will prevail over expert witness of a doctor and even ossification test. In the case of Birad Mal Singhvi v. Anand Purohit it was has held that the entries regarding the date of birth contained in the school's register or Secondary School Examination have no probative value and that a person such as the parents of the child who have special knowledge in terms of Section 35 of the Evidence Act, with regard to the age of the child need to give evidence to that effect, in order to prove those documents which reflect the age. In the absence thereof such documents would be of no evidentiary value. In the case of Pradeep Kumar v. State of U.P. the court has relied upon the School certificate as well as the age indicated by medical examination as both of them were consistent and indicated the same age. In the case of Bhoop Ram v. State of U.P. the court disbelieved the medical opinion and instead chose to rely on the date of birth as occurring in the School certificate since the said document had not been disproved by any party and gave the accused the benefit of doubt. In the case of Bhola Bhagat v. State of Bihar the court held that since the object of such laws being socially oriented legislation and intended to be beneficial in nature. An obligation is cast on the court in such cases where a plea is raised with regard to the juvenility of the age of the accused to direct an enquiry to be held and seek a report in that regard. It further suggested that subordinate courts must be issued an administrative direction that whenever such a plea with regard to juvenility is raised. There being a doubt on the said question, it is incumbent upon the court to conduct an enquiry by giving the parties an opportunity to establish the respective claims in order to return a concrete finding with regard to the age. In Ramdeo Chauhan v. State of Assam it was held that in case the school register was not maintained by a public servant in discharge of his official duty, then such an entry would not have a binding evidentiary value. It also held that although medical opinion could not be said to be definitive but in cases where the court was grouping in the dark some amount of guidance could be sought from such an opinion and it could not be discarded altogether. In Ravinder Singh Gorkhi v. State of U.P. it was held that when a particular statute requires the age to be determined in a particular manner, no artificial division could be made between civil and criminal cases and a uniform standard of proof must be followed. The court must endeavor to strike a balance keeping in mind that a benevolent approach needs to be taken. In Babloo Pasi v. State of Jharkhand the court disbelieved the age reflecting in the voters list as no evidence was produced as to the materials based on which such an age had been entered into the said list. In Jitendra Ram v. State of Jharkhand dealing with the issue of juvenility under the Juvenile Justice Act it was held that in the absence of any concrete documentary evidence, it was incumbent upon the court to follow the procedure prescribed under the statute and obtain a medical opinion with regard to the age. In Jyoti Prakash Rai v. State of Bihar the court held that since the School certificate and the horoscope were found to be forged, the court had no other option but to rely on the medical opinion. However, while doing so, the court observed that medical opinion could not be taken to be conclusive but a margin of two years on either side had to be taken and that a better approach would be to take the average of the medical opinion issued by different medical opinions. In Pawan v. State of Uttaranchal the court was disinclined to believe the school leaving certificate which had been obtained after the conviction. In Hari Ram v. State of Rajasthan the court took note of the various provisions of the Juvenile Justice Act and opined that in case of any ambiguity with regard to the age, Rule 12 framed under the Act had to be taken recourse to in order to arrive at the age. In Raju v. State of Haryana the court directed that the age determination be done as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the rules framed thereunder. In Shah Nawaz v. State of U.P. the court held that Rule 12 categorically provides that the medical opinion from the medical board should only be sought only when the matriculation certificate or school certificate or a certificate issued by a corporation are not available. That being the provision under the rules the court ought not to have overlooked the same especially when such a document was available on record and was credence worthy. In Om Prakash v. State of Rajasthan in an exception the Hon'ble Apex Court found the school certificate to be unreliable and went by the medical opinion as the same was based on scientific medical tests like ossification and radiological examination in order to determine the age of the juvenile. In Ashwani Kumar Saxena v. State of M.P. the court relied on the admission register of the school as clinching evidence. The reasoning that the parents would have given a wrong date of birth was taken to be a specious plea and disbelieved. It was also held that the issue of the juvenility could be raised at any point in time or at any stage of the proceedings. A similar view was taken in the case of Kulai Ibrahim v. State.[Para No.10]

    In Sunil v. State of Haryana in the absence of school leaving certificate and the basis on which the age was recorded in the school register not having been produced the court went by the age as opined by the report of the dentist who had conducted the examination. In State of M.P. v. Munna the court held that the X-ray report of the ossification test could not be believed as the doctor who conducted the examination and opined on the age was never examined and also noticing that in the absence of any other documentary evidence the age was not successfully established by the prosecution.[Para No.11]

    In Jarnail Singh v. State of Haryana, the court for the first time took a view that although Rule 12 deals with a child in conflict with law but by using the judicial tool of reading is held that the same could be extended to determine the age of the victim also. It is a landmark decision in the sense that for the first time the court took note that although there was the legislation in place to determine the age of the accused there was a vacuum with regard to the mode of determination of the age of the victim. Thus by necessary judicial construction it has been held authoritative leave that the same rule, i.e., Rule 12, would be applicable to determine the age of the victim as well. In State of M.P. v. Anoop Singh the court held that minor discrepancies existing amongst two documents is irrelevant as long as the other evidences on record point in a certain direction. In Mahadeo v. State of Maharashtra the court relied on a series of documents which indicated that the age was in a certain range based on the documents which were on record and credence worthy[Para No.12]

19 June 2020

Ocular evidence can be disbelieved if medical evidence makes ocular evidence improbable

Medical evidence Vs. oral evidence: which evidence has to be accepted?

   Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect, that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

Ocular evidence can be disbelieved if medical evidence makes ocular evidence improbable
40. In the instant case as referred to hereinabove, as many as five assailants attacked one person but the prosecution case from the very inception of FIR, is very clear that accused-appellant Darshan Pasi shot fire when the deceased was sitting under the tree, causing him injury on chest and left palm, Lachiman Pasi and Sahai Pasi fired on his neck and skull inside boundary wall and Maharaj Deen and Gaya Prasad assaulted the deceased with banka. This fact is categorically substantiated by P.W.-1 in his oral testimony. The postmortem report reveals no firearm injury, either on neck or skull or any other part of the dead body, whereas remaining injuries relate to sharp edged weapon, which may be attributed to alleged use of banka by Maharaj Deen and Gaya Prasad.

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