SUPREME COURT HOLDS THAT CORROBORATION OF EXTRA-JUDICIAL CONFESSIONS NOT MANDATORY

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Extra-judicial confessions are those confessions that are made by an accused before any person other than a magistrate or in a court. It is a free and voluntary confession of guilt by a person accused of a crime in the course of conversation with persons other than a judge or a magistrate. Extra-judicial confession can be accepted and be the basis of a conviction if it passes the test of credibility.

Various courts in India have held that extra-judicial confessions must be received with great caution and can be relied upon only when it is clear, consistent and convincing. It is the court’s discretion to decide upon the credibility of the witness in front of whom such confession has been made, as there may be a risk of failure of the party expressing his/her understanding about the confession. In order to resolve these issues, various courts have required some material corroboration that connects the accused person with the crime in question.

The Supreme Court has laid down the following guidelines dealing with extra-judicial confessions in Sahadevan & Anr. vs. State of Tamil Nadu 2012 and reiterated in Vijay Shankar v. State of Haryana vide judgment dated 04-08-2015:

The extra-judicial confession is weak evidence by itself. It has to be examined by the court with greater care and caution.

It should be made voluntarily and should be truthful.

It should inspire confidence.

An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

Such statement essentially has to be proved like any other fact and in accordance with law.

Recently, the Supreme Court has in Ram Lal vs. State of Himachal Pradesh passed a Judgment dated 03-10-2018, where it held that extra-judicial confession of accused need not be corroborated in all cases. It further held that conviction can be made on the basis of voluntary confession which is corroborated by independent evidence. But in cases of extra judicial confession it is not necessary to corroborate each and every circumstance mentioned in the confession. The courts can exercise their discretion in convicting an accused based on his/her voluntary confession alone.

In the present case, the accused was convicted for falsifying the accounts of the United Commercial Bank, Shimla by the Trial Court and the High Court of Himachal Pradesh.

In the Appeal before the Supreme Court, it was averred that the extra judicial confession made by the accused may have been under a threat or inducement by higher officials of the said Bank. But the Apex Court held that such threat or inducement should create a reasonable belief in the mind of the accused that he would get an advantage by making such confession. Thus, the Supreme Court concluded that the conviction of the accused was correct as it was based on his voluntary extra judicial confession statement.

Harini Daliparthy

Senior Associate at The Indian Lawyer

with

Arifa Khan

P.G. College of Law, Osmania University, Hyderabad

Intern at The Indian Lawyer

DOCTOR FINED FOR WRITING MEDICO-LEGAL REPORT IN POOR HANDWRITING

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The Lucknow Bench of Allahabad High Court, in the case titled Fahad & Ors. v. State of UP, through The Principal Secretary, Home Department and Ors., decided on 25.09.2018, has fined the doctor for writing medico-legal reports shabbily and directed Principal Secretary Home, Principal Secretary Medical and Health, Director General of Medical and Health to ensure compliance of a 2012 circular directing doctors to write clear medico-legal reports.

The Circular was issued by the Director-General on November 8, 2012, in the case titled Chhabiraj vs. State of U.P. and others, when the Court was forced to summon Director General, Medical and Health, U.P. Lucknow, directing that:

Medico-legal report shall be written in clear writing which is legible;

Simple words shall be used as far as possible;

Short/Short form/Abbreviation words shall not be used in the Medico-Legal Report;

Signatures, Name and Designation of the doctor who prepared the report shall clearly be mentioned.

The Bench was pained to note how poor handwriting of doctors in medico-legal reports was obstructing the administration of justice and observed that, “The doctors have been scribing medico legal report, injury report, bed head tickets, prescriptions and post-mortem examination reports in such handwriting that it cannot be read by the prosecutor, the defence lawyer or the Court. We are faced with a situation in which when the medico-legal report was summoned, counsel for none of the parties or the Court could read the report on account of the way it was written”.

The Bench further stated that, “By depiction of such injuries, as has been done in this case, neither the prosecution would be enlightened nor the defence, or even the court. The very purpose of having a medico-legal examination report is defeated. Such misleading and confusing injury report would help the accused to take benefit of lacuna in the prosecution case.  This court is pained at recording in every case that the medical report is summoned for reference for effective adjudication, the handwriting of the doctor in the report is not readable.”

The court reiterated that the relevance of the medico-legal report in cases of hurt, homicide or suicide is enormous and made a significant point that, “In a case of incised wound, the injury depicted in the medico-legal report/post-mortem report can clarify whether the knife was sharp on one side or both sides; the size of the blade; the force with which the knife has been thrust in the body and the direction from which the knife has been thrust. Likewise, in blunt injuries, explanation of the injury in the medico-legal report speaks volumes about the manner in which the injury might have been caused. It assists the Court in formulating an opinion in regard to the manner in which an incident might have taken place and what penal provision to invoke.”

It further went on to say that, “The medico-legal report, if given clearly, can either endorse the incident as given by the eyewitnesses or can disprove the incident to a great extent. This is only possible if a detailed and clear medico-legal report is furnished by the doctors, with complete responsibility. The medical reports, however, are written in such shabby handwriting that they are not readable and decipherable by advocates or Judges. It is to be considered that the medico-legal reports and post-mortem reports are prepared to assist the persons involved in dispensation of criminal justice. If such a report is readable by medical practitioners only, it shall not serve the purpose for which it is made. This is despite the fact that computers are available in all medical facilities. In some of the States, practice is being followed where medico-legal reports and post-mortem reports are made on computers/printers”.

Noting that the conduct of the doctor, Dr. Ashish Saxena, in violating the 2012 Circular cannot be ignored, it imposed a cost of Rs 5,000/- on him to be deducted from his salary and deposited in Library Fund of Oudh Bar Association of the Court.

Surabhi Aggarwal

Senior Associate

The Indian Lawyer

SUPREME COURT ALLOWS ENTRY OF WOMEN IN THE SABARIMALA TEMPLE, KERALA

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The Sabarimala case has been one of the most keenly awaited judgments. The Supreme Court, by 4:1 majority, in the Writ Petition titled Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors., delivered its Judgment on 28.09.2018, permitting the entry of women of all age groups to the Sabarimala Temple, Kerala, holding that ‘devotion cannot be subjected to gender discrimination’.

Chief Justice Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar and Justice D Y Chandrachud constituted the majority, while the lone woman in the Bench, Justice Indu Malhotra, dissented.

Justice Indu Malhotra, in her lone dissent, held that issues of deep religious sentiments should not be ordinarily be interfered by the Court. Court should not interfere unless if there is any aggrieved person from that section or religion. Notion of rationality should not be seen in matters of religion. She also held that shrine and the deity is protected by Article 25 of Constitution of India.

The Bench observed that, “Women is not lesser or inferior to man. Patriarchy of religion cannot be permitted to trump over faith. Biological or physiological reasons cannot be accepted in freedom for faith. Religion is basically way of life however certain practices create incongruities.”

The separate but concurring opinion of Justice Nariman held: “Anything destructive of individuality is anachronistic of Constitutionality. To treat women as lesser people blinks at the Constitution itself”.

Chief Justice Dipak Misra had reflected that one visits a temple by virtue of their belief and devotion, and that the onus to prove the rationality and reasonableness would be on those imposing the prohibition. Hence, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965, which prohibited entry of women in Sabarimala Temple, was struck down as unconstitutional.

Surabhi Aggarwal

Senior Associate

The Indian Lawyer

SUPREME COURT DECLARES ADULTERY IS NOT A CRIMINAL OFFENCE

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A five Judge Bench consisting of Chief Justice of India Dipak Misra, Justice AM Khanwilkar, Justice Rohinton Nariman, Justice DY Chandrachud, and Justice Indu Malhotra passed a Judgement in conformity with Right to Equality by striking down Section 497 the Indian Penal Code (IPC),

“Section 497 in The Indian Penal Code

Adultery- Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

After path breaking Judgements on Triple Talaq and Section 377  of the IPC, the five Judge Bench of the Supreme Court, on Thursday, 27th September 2018, in the matter of Joseph Shine vs. Union of India unanimously held that the offence of adultery is unconstitutional in the eyes of law.

However, the Court held that adultery will be a ground for divorce or dissolution of marriage.

In CJI Dipak Misra’s Judgement (for himself and on behalf of Justice AM Khanwilkar) referred to KS Puttaswamy and another v. Union of India and others (Judgement on Right to Privacy) and held that “…Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life…Privacy of the body entitles an individual to the integrity of the physical aspects of personhood…when such an act adultery is treated as a crime and how is faces the frown of Article 14 and 21 of the Constitution.” and reiterated concept of dignity of a woman, in the context of autonomy, desire, choice and identity, the part of Judgement. The CJI further held that “adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage” and also while referring to another Judgement- stated, “marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.

Justice R F Nariman in a separate Judgment concurred with the Judgments of CJI Misra and Justice Khanwilkar, referred to Shayara Bano v. Union of India and others case holding Section 497 was an archaic provision which had lost its rationale. “Ancient notion of man being the perpetrator and woman being victim of adultery no longer holds good.” and “…when such law falls foul of constitutional guarantees, it is this Court‘s solemn duty not to wait for legislation but to strike down such law. As recently as in Shayara Bano (supra), it is only the minority view of Khehar, C.J.I. and S. Abdul Nazeer, J., that one must wait for the law to change legislatively by way of social reform.”

Justice Chandrachud’s views sheds light on protection of privacy of an individual in institution of marriage and he states in his Judgement that “The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that dignity is realised in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution.”

Therefore, the Supreme Court delivered its Judgement in parity with concept of individual liberty with no discrimination on the basis of gender and held that adultery undoubtedly is a moral wrong in capacity of husband and wife relationship but there is no sufficient element for adultery to come under the ambit of criminal law. Thus, adultery will be taken as a ground for divorce to maintain the dignity of husband and wife.

Taruna Verma

Senior Associate