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Q.1. In which Court an appeal can be filed against an acquittal order passed by the Sessions Judge by the State Government?
Ans. State Government may direct the Public Prosecutor to present an appeal to the High Court against acquittal-order passed by the Sessions Judge. [Section 378 (1)(b), Criminal Procedure Code, 1973].
Q.2. Define Judicial custody?
Ans. To detain any person by legal process and authority is called “custody”, which includes actual imprisonment, safe-keeping, protection, charge, care or guardianship. Unless “police custody”, is not specified, the meaning of “custody” is always “judicial custody”. (See: Kanhaiya vs. State of Rajasthan, 1976 Cr LJ 1652 (Raj). Reference: K.J. Aiyar’s Judicial Dictionary, 12th Edition of 1998 page 360). [Sections 167 and 51 Criminal Procedure Code, 1973].
Q.3. Where an appeal will be preferred when the High Court passes an order of conviction punishing the accused for six months imprisonment?
Ans. No appeal can be preferred before any Court. [Section 376 (a), Criminal Procedure Code, 1973].
Q.4. Explain “such punishments shall run concurrently” and “one punishment will commence after the expiration of the other” in a sentence in cases of conviction in several offences at one trial?
Ans. Unless the Court directs that such punishments shall run concurrently one punishment will commence after the expiration of the other. [Section 31, Criminal Procedure Code, 1973].
Q.5. When can a confession be recorded and by whom?
Ans. Any Metropolitan Magistrate/Judicial Magistrate may, whether or not he has jurisdiction in the case, record confession during an investigation, or afterwards before commencement of inquiry or trial. [Section 164(1), Criminal Procedure Code, 1973].
Q.6. When an appeal may be preferred where an accused has been convicted on the basis of pleading guilty by him?
Ans. If the conviction is by a Sessions Judge, Metropolitan/Judicial Magistrate of Ist or IInd class, an appeal may be preferred only to the extent or legality of the sentence. [Section 375(b), Criminal Procedure Code, 1973].
Q.7. When a wife shall not be entitled to claim maintenance allowance from her husband?
Ans. When the wife is living in adultery; without sufficient reasons refusing to live with her husband; or if they are living separately by mutual consent. [Section 125, Explanation (4), CrPC, 1973]
Q.8. Explain acquittal and discharge; and what is difference between them?
Ans. In a trial, after charge, if the accused is released on merits by criminal Courts, it is called “acquittal”. Whereas, if before charge, accused is released it is called “discharge”. After “acquittal” of an accused, he cannot be tried again for the same offence, whereas, this norm is not applicable in “discharge”.
Q.9. What do you understand by leading question?
Ans. Any question suggesting the answer which the person putting it wishes or expects to receive, is called a “leading question”. [Section 141, Indian Evidence Act, 1872].
Q.10. Define “good faith”.
Ans. Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention. [Section 52, Indian Penal Code, 1860].
Q.11. Whether an affray can be committed in a public place?
Ans. No. [Section 159, Indian Penal Code, 1860]
Q.12. During evidence in a Court, the Court refused to admit certain evidence. Whether against such refusal, a revision can be filed?
Ans. Unless by such refusal to admit certain evidence has varied the decision, it shall be no ground for a new trial. [Section 167, Indian Evidence Act, 1872].
Q.13. When a confession made by the accused while in custody of police may be proved against him?
Ans. When such confession has been made in the immediate presence of a Magistrate. [Section 26, Indian Evidence Act, 1872]
Q.16. When a summons-case may be converted into a warrant-case?
Ans. When, during the trial of a summons-case for an offence punishable with imprisonment exceeding six months, it appears to the Magistrate that in the interest of justice, the offence should be tried according to the procedure for the trial of warrant- cases. [Section 259, Criminal Procedure Code, 1973].
Q.17. What do you mean by police diary? When can a Magistrate, police officer and accused person make its use?
Ans. The investigating police officer shall day by day enter his proceedings in the investigation in the police-diary, setting forth therein the time and date of receipt of the information, the time, date and place of beginning and closing of the investigation and details of the facts and circumstances of the case.
Any criminal Court may sent for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
Neither the accused not his agents shall be entitled to call for such diaries, nor shall he/they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for contradicting such police officer, the provisions of Section 161 or Section 145, Indian Evidence Act, 1872, shall apply. [Section 172, Criminal Procedure Code, 1973].
Q.18. What will you advise to the applicant when the first information report has not been entered/registered/recorded?
Ans. If any person is aggrieved by refusal of the Officer-in-charge of a Police- Station to record the information, may send the written substance of such information, by post, to the Superintendent of Police concerned, who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any of his subordinate police officer. [Section 154(3), Criminal Procedure Code, 1973].
Q.19. ‘A’ goes to the house of ‘B’ with an intention to commit theft. But, ‘A’ commits rape on ‘C’ there. Whether both the offences can be tried together?
Ans. ‘A’ has connection with the acts, which make a single transaction, and since in the series of one transaction, ‘A’ has committed house-trespass and rape (more than one offence), therefore, for each offence committed by him, in one trial, separate charges (under Section 451 and 376, IPC) can be levelled against him and can be tried. [Section 220(1), Criminal Procedure Code, 1973].
Q.20. What do you understand by preparation? When it is punishable?
Ans. Before commission or attempt to commit an offence to think over about it, to discuss about the means and methods and to collect them, come within the ambit of “preparation of an offence”.
Preparation, in itself, does not come within the purview of a punishable offence. But, keeping in view the severity of the offences, intentional preparation to wage war against the Government of India; preparation for committing depredation on territories of power at peace with the Government of India, and making preparation for dacoity, have been made punishable offences respectively under Sections 122, 126 and 399 of the Indian Penal Code, 1860.
Q.21. For which acts, in spite of the criminal acts and mens rea, the person is not held liable?
Ans. When in spite of the criminal acts and mens rea of a person, he is exceptionally kept out of the ambit of an offence by an Act of the Legislature, then it does not come within the category of an offence, namely —
(1) Acts causing slight harm; and
(2) Acts done in right of private defence of body and property. [Sections 95 and 97, Indian Penal Code, I860]
Q.22. ‘A’ enters the house of ‘B’ with intention to commit theft. But, since ‘B’ was too poor, ‘A’ leaves the currency — note of Rs.500/- at the house ‘B’ and returns. What offence has been committed by ‘A’?
Ans. ‘A’ by entering the house of ‘B’, with intention to commit the offence of theft, has committed the offence of house-trespass, punishable under Section 451 of the Indian Penal Code, 1860.
Since ‘A’ did not commit any theft, he cannot be held liable for the offence of 380, IPC.
Although, since ‘B’ was too poor, ‘A’ left currency-note of Rs.500/- at the house of ‘B’, yet, ‘A’ has committed the offence of house-trespass, as stated above, by entering the house of ‘B’ with intention to commit theft. [Section 451, Indian Penal Code, 1860].
Q.23. In a joint trial, amongst several accused persons, one of the co-accused makes a confession affecting himself and other such persons. What are legal provisions to prove such confession?
Ans. When the same offence is being jointly tried for by more than one person, and a confession made by one of those persons affecting both himself and some others is proved, such confession may be taken into consideration by the Court against those other persons. In this case, the maker of the confession himself may be convicted.
Illustration.—’A’ and ‘B’ are jointly tried for the murder of ‘C’ It is proved that ‘A’ said—’B’ and I murdered ‘C’. The Court may consider the effect of this confession as against ‘B’, whereas ‘A’ may be convicted on the basis of this confession. [Section 30 (including illustration (a)), Indian Evidence Act, 1872].
Q.24. What do you understand by refreshing the memory? When and how it may be refreshed?
Ans. Any witness, with permission of the Court, by referring the any relevant writing, may refresh his memory.
When the Court is satisfied that there is sufficient reason for non-production of an original document, then the witness may refer to copy of such document and refresh his memory. Whereas, an expert may refresh his memory by reference to professional treatises.
Any writing referred to above must be produced and shown to the adverse party and if he requires, he may cross-examine the witness thereupon.
For example: Giving of statement by a Muneem or accountant witness by referring to and refreshing his memory by account – books regularly maintained in the ordinary course of business. [Sections 159 to 161, Indian Evidence Act, 1872].
Q.25. Accused ‘A’ was induced by the priest of the temple of Shrinath by saying, “By speaking the truth, you will be benefited in the next world.” and by such inducement, ‘A’ makes a confession. Whether such confession may be proved?
Ans. It is correct that any confession made by inducement in a criminal proceeding is irrelevant, but its necessary condition is that such inducement has been given by a “person in authority”.
Since the inducement in question has not been given by a person in authority, therefore, it can be admitted in evidence as a confession, because the priest of a certain temple can be said to be a person in authority. [Section 24, Indian Evidence Act, 1872].
Q.26. When bail may be granted in the cases relating to the offences punishable with death-sentence or life-imprisonment?
Ans. In the cases relating to the offences punishable with death-sentence or imprisonment for life, an accused person may be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm, or there is some special reason. [Section 437, Criminal Procedure Code, 1973]
Q.27. What do you know about the power of a Sessions Judge to transfer cases and appeals?
Ans. Whenever it is made to appear to a Sessions Judge that an order is expedient for the ends of justice, he may order that any particular case or appeal be transferred from one criminal Court to another criminal Court in his sessions division.
The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative. [Section 408, Criminal Procedure Code, 1973).
Q.28. When culpable homicide is not murder? Explain with examples.
Ans. Culpable homicide is not murder, if the act of the offender comes within the following exceptions of Section 300, IPC:—
1. Culpable homicide is not murder if the offender, whilst deprived of the power of self-control, by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above Exception is subject to the following provisions:
Firstly.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.—That the provocation is not given by anything done in obedience to the law or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Illustration.—’Y’ gives grave and sudden provocation to ‘A’. ‘A’, on his provocation, fires a pistol at ‘Y’, neither intending nor knowing himself to be likely to kill ‘Z’, who is near him, but out of sight. ‘A’ kills ‘Z’ Here ‘A’ has not committed murder, but merely culpable homicide.
2. —Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Illustration.—’Z’ attempts to horsewhip ‘A1, not in such a manner as to cause grievous hurt to ‘A’. ‘A’ draws out a pistol. ‘Z’ persists in the assault. ‘A’ believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots ‘Z’ dead. ‘A’ has not committed murder, but only culpable homicide.
3. —Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
4. —Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.
5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
Illustration.—’A’, by instigation, voluntarily causes ‘Z’, a person under 18 years of age, to commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own death, ‘A’ has, therefore, abetted murder.
Q.29. Define theft and narrate its essential elements. When a person may commit theft of his own property? Explain with illustration.
Ans. Under Section 378, Indian Penal Code, ‘theft’ has been defined as under:—
When a person dishonestly moves or takes any movable property out of possession of any person without that person’s consent, it is called ‘theft’.
Necessary elements of theft:
(1) Any other person should be in physical or legal possession of the stolen property.
(2) It must be movable property only, e.g., the stones, trees, crops etc.; separated from the land, and water and animals etc. It includes pet animals of a private person or of the Government, trees and plants cut from a reserved forest or a public park and animals of a circus.
(3) The meaning of moving or taking the property without another person’s ‘consent’ means that the consent must be voluntarily and lawfully. Phrase ‘moving the property’ denotes separating the trees from the land by cutting them, untying the pet animals, removing hurdles of the animals, taking the animals by showing grass to a cow and biscuit or meat to a pet dog; and the acts of taking them from one place to another come within the purview of ‘theft’. If a person intentionally removes or moves a certain movable property from its place for taking it with him, but has been unable to take that property with him, he commits the offence of theft.
(4) Dishonest intention means the mens rea of the accused. ‘Dishonesty’ has been defined under Section 24, IPC.
A person may commit the theft of his own property, if his movable property is lying as deposit, charge or in trust with another person; and that first person takes away or removes the property from the possession of the second person, without his consent with dishonest intention.
Illustration.—’A’ had handed over his watch for repairs to watchmaker ‘B’. If ‘A’, takes or removes his own duly repaired watch, without paying ‘B’ any repair-charges, from the possession of ‘B’, without his consent, then ‘A’ has committed the theft of his own watch, because he takes or removes the watch with dishonest intention. [Section 378, Indian Penal Code, 1860].
Q.30. What is accomplice? Whether an accused may be convicted on the basis of the uncorroborated testimony of an accomplice?
Ans. ‘Accomplice’ has not been defined in the Indian Evidence Act. For becoming an accomplice, he must participate, abet, or assist in the commission of an offence.
Under Section 133, an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Whereas, under Illustration (b) of Section 114, it has been provided that an accomplice is unworthy or credit, unless he is corroborated in material particulars.
But these provisions are not self-contradictory. It has been interpreted that while applying Section 133, keeping in view the provisions of Illustration (b) of Section 114, the Courts should take the precaution.
The following interpretation has been made by the Supreme Court:—
In Madan Mohan vs. State of Punjab, AIR 1970 SC 1005, it has been observed by the Supreme Court that the evidence of an accomplice should be corroborated by other independent witnesses.
Accused cannot be convicted on the basis of uncorroborated testimony of an approver. (Niranjan Singh vs. State of Punjab, 1996 (2) Crimes 251 (SC)).
Even the corroboration of the testimony of an accomplice may be by circumstantial evidence.
The corroborative evidence should be independent, and not vague and untrustworthy. (Narain Chetanram Chaudhari & Ors. vs. State of Maharashtra, 2000 (3) Crimes 236 (SC)). (Sections 133 and 114, Indian Evidence Act, 1872]
Q.31. “Hearsay evidence is inadmissible in evidence.” Explain, narrating its exceptions.
Ans. In the Indian Evidence Act, the phrase “hearsay evidence” has not been defined. Nevertheless, under Section 60, it has been provided that oral evidence must, in all cases whatever, be direct. The reasons for the inadmissibility of the hearsay evidence are that such examination cannot be cross-examined; possibility of producing the best evidence is lessened, and apart from causing delay in a judicial proceeding, there always remains apprehension and possibility of giving false and forged statement by a witness.
Exceptions.—It is oft-quoted that hearsay evidence is no evidence, and the best evidence must be given. But, in the absence of the best evidence, hearsay evidence may be admitted in evidence in the following exceptional circumstances —
(i) Admissions and confessions under Sections 17 to 31. ,
(ii) Written or verbal statements under Section 32, which have been given by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense.
(iii) Under Section 33, evidence given by a person in a previous judicial proceeding may be proved in a subsequent proceeding.
(iv) Facts contained in a public document may be proved in the absence of its original author, under Section 35.
(v) Facts forming a part of the same transaction, i.e., res gestae, may be proved under Section 6.
(vi) Under Section 60, the opinions of experts expressed in their duly published treatises may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
Q.32. What defences can be taken by an accused person in a case relating to unsoundness of his mind?
Ans. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law.
In this connection, an accused person of unsound mind should take the defence that “at the time of the occurrence”, the accused person was in the state of unsoundness of mind, and further he was not knowing the nature of the act at the relevant time; or he was incapable to know that the act done by him was wrong or contrary to law. [Section 84, Indian Penal Code, 1860].
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