Criminal Law

CRIMINAL LAW
Q.  1  Write short notes on any two of the following:
(a)  The Presiding Judge of a criminal trial should not be a spectator and a mere recording machine.
(b)  Difference between the judgment per incuriam and judgment sub-silentio.
(c)  Evidentiary value of a dying declaration made in Tamil, translated in Hindi by a Tamil knowing doctor and recorded in Hindi by Magistrate who does not understand Tamil.
(d)  Test identification does not constitute substantive evidence.
(e)  The plea of issue estoppels is not the same as the plea of autrefois acquit.
Q.  2  A has a grudge against B, suspecting him to be a police informer and responsible for a raid at the business premises of A.  One evening, A confronts B and says that he needs to be taught a lesson for being a chum of the police.  A fires from his pistol aiming at B.  B ducks.  The single fire enters his chest and exits from his back and in the process damages his vital organs.  B dies.  The Medical opinion of the nature of injury sustained by B is as being dangerous to life.  In cross-examination, the doctor states that had B not ducked, the fire might have hit on the right thigh but, nevertheless, the same would also have been dangerous to life.  Analyze the factual matrix and write as to whether, in the given circumstances, the culpability of A should be that of Murder or that of Culpable Homicide Not amounting to Murder.
Q.  3  A is charged under section 304 part 2 IPC for causing death of P.  The evidence matrix is as follows.  A is driving a car.  The speed of the car can be described as moderate.  The music is on.  A has a friend as a companion.  They are talking and A has a habit of looking at his companion while driving.  He gets a call on his cell phone.  He attends the call.  During the course of his attending the call, he makes some gestures towards his companion and, somehow, loses control of the car.  The car steers to the left and hits P, a pedestrian, who is injured and, unfortunately, dies on way to the hospital.  The prosecution contends that the evidence proves its case of culpable homicide.  The defence arguments is that the nature of the act attributable to A could, at best, be said to be causing death by rash or negligent act punishable under section 304A IPC.  Write a judgment.
Q.  4  (a)  G, a Hindu girl of 13 years, elopes with her neighbour N, also a Hindu.  On a complaint from her father, a FIR is registered under section 366 of IPC.  After about 7 months of the incident, the police is able to trace G and N.  N is arrested and subsequently released on bail.  G refuses to go with her parents.  She claims to have married N and being pregnant.  She is sent to a childcare center till she attains majority or till further order of the court.  N also accepts the marriage and that G was pregnant.  The father of G makes an application to the court for being given the custody of G.  N also makes an application for being given the custody of G, his wife, notwithstanding his status as an accused in the cases registered by the father of G.  G also makes an application for being set at liberty and being allowed to go with her husband.  Write a composite order deciding all the three applications.
(b)  F, a married lady, develops intimacy with M.  On her representation that she had divorced her husband, in a customary ceremony, F and M start living together.  After staying together for about seven months, they part ways.  Within the next three months, F delivers a child C.  An application is filed by F for herself and for the child C for maintenance from M under section 125 Cr. P.C. M disputes that F is his wife and he also disputes the paternity of C.  He admits having lived with F but contends that F had a subsisting marriage and could not be his wife.  The evidence lacked her claim of having divorced her husband before she started living with M.  Decide only the question of entitlement to maintenance of each of the two applicants under the Cr. P.C.  Further, would it make any difference to the outcome of the application if F had been unmarried at the time she started living with M?
Q.  5  (a)  A police report is filed for the alleged commission of offence punishable under section 420 read with section 34 of IPC (cheating in furtherance of common intention) against A,B,C,D.  A and B abscond and the trial proceeds only against C, D.  On appraisal of evidence, the Court acquits C and D.  Later, A and B are apprehended.  On being produced in the court, A and B make an application purporting to be under section 245(2) Cr. P.C. and section 300 Cr. P.C. for dropping the proceedings on the ground that their co-accused C and D have been acquitted and it would be an exercise in futility to proceed against them.  It is contended that they are deemed to have faced trial in absential and having been so tried in absentia they cannot be tried again for the same offence.  Decide the application of A and B.
(b)  FIR is registered against unidentified person under section 420/34 of IPC (cheating in furtherance of common intention).  After the completion read with section of investigation, the police files its report of investigation naming two persons A and B of having allegedly committed the offence.  The magistrate, on consideration of the evidence collected during the investigation and presented along with the report, finds that apart from A and B sent for trial by the police.  C and D are also liable to the summoned and he accordingly summons A, B, C, D to appear in the Court to face trial.  At the stage of hearing of arguments on charge, Public Prosecutor for the State contends that from the evidence already before the Court, two more persons E and F appear to have also committed the same offence for which A, B, C, D are facing trial.  The Court appears to be convinced with the submission of the prosecution.  There is no serious opposition from the side of A, B, C, D.  Write an appropriate order highlighting the power of the court to proceed against other persons appearing to be guilty of offence being tried by the court.
Q.  6  (a)  Upon a complaint, the Magistrate summons A and B by issuing a process under section 204 Cr. P.C. for the offences punishable under sections 420 and 468 IPC (Cheating and Forgery etc.).  The accused persons appear and make an application purported to be under section 203 read with section 245(2) Cr. P.C. for recall of the summons of dropping of the proceedings against them on the ground that even if the evidence of the complaint is taken at its face value none of the two offences for which they have been summoned are made out.  The complainant objects to the maintainability of the application and questions the jurisdiction of the court to go into the question as prayed for by the accused.  Decide the maintainability of the application and the jurisdiction of the Magistrate in this regard.  Further, would it make any difference if the accused had been summoned for an offence triable as a Summons case?
(b)  A is arrested by the police in connection with a FIR registered against him by name at the instance of X, the victim of the alleged rape by A.  A is arrested and in due course sent to Judicial Custody.  While in judicial custody, the police make an application to the court stating that A has been uncooperative during the time he was in their custody and for the purpose of an effective investigation, the police want to have a DNA profile of A for a scientific investigation of some specimens collected during the investigation from the spot and the evidence furnished by the victim.  A, on the advice of his counsel, declines to give the sample of his blood or semen, as called upon by the Police.  He contends that in terms of the constitutional protection envisaged in Article 20(3) of the Constitution of India, which says that no person accused of any offence shall be compelled to be a witness against himself, he cannot be called upon to give any specimen as asked for by the police and he also claims of his right to privacy being a part of Article 21 of the Constitution.  The police contends that there is no bar for the court to compel the accused to comply with the requirement of the police and the court can use necessary means to secure the taking of the required evidence which is relevant under the Evidence Act.  Decide the application.