Tag Archives: Code of Criminal Procedure

Secondary Evidence – No Requirement of Application

There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed. Dhanpat v. Sheo Ram, (2020) 16 SCC 209.

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Discharge – Legal Principles

In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, it was held as under:

  1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.
  2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.
  3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the court.
  4. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross examination or rebutted by the defense evidence, if any, cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the Trial.
  5. It is open to the accused to explain away the materials giving rise to the grave suspicion.
  6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving enquiry into the pros and cons.
  7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
  8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.

The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC. The expression, “the record of the case”, used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police”. M.E. Shivalingamurthy v. Central Bureau of Investigation, (2020) 2 SCC 768.

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Murder – Aggravating Circumstances and Mitigating Circumstances

In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the court referred to the decision in Furman v. Georgia, 33 L Ed 2d 346 : 408 US 238 and noted the suggestion about the aggravating and mitigating circumstances as under:
Aggravating Circumstances.— A court may, however, in the following cases impose the penalty of death in its discretion:
(a) If the murder has been committed after previous planning and involves extreme brutality; or
(b) If the murder involves exceptional depravity; or
(c) If the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed—
(i) While such member or public servant was on duty; or
(ii) In consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) If the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the Code of Criminal Procedure.”

Mitigating Circumstances.—In the exercise of its discretion, the court shall take into account the following circumstances:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance.
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(d) The probability that the accused can be reformed and rehabilitated.
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(f) That the accused acted under the duress or domination of another person.
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.” Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253.

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