List of Current Affairs

Home / List of Current Affairs

Criminal Law

Conviction Solely on Dying Declaration

 07-Mar-2024

Source: Supreme Court

Why in News?

Recently, a division bench of Justices B R Gavai and Sandeep Mehta convicted an accused solely on the basis of a dying declaration.

  • The Supreme Court gave observation in the case of Naeem v. State of Uttar Pradesh.

What was the Background of Naeem v. State of Uttar Pradesh Case?

  • Incident occurred on 1st December 2016, where Shahin Parveen was admitted to the District Hospital, Moradabad, with severe burns.
  • She alleged that she was set ablaze by the accused/appellants who were pressuring her into immoral activities, it was considered her dying declaration.
    • The accused/appellants included Pappi @ Mashkoor, Naeema, and Naeem, who were her brother-in-law, sister-in-law, and her brother-in-law's brother respectively.
  • The prosecution contended that the accused pressured her into immoral activities after her husband's death and assaulted her when she refused.
  • Shahin Parveen's dying declaration accused Pappi @ Mashkoor of setting her ablaze over a property dispute.
  • The trial court found the accused guilty based on the declaration of dying and sentenced them to life imprisonment.
  • The High Court upheld the trial court's decision, prompting the appellants to appeal to the Supreme Court.

What were the Court’s Observation?

  • The Supreme Court referred to its opinion in landmark judgment of Atbir v. Government of NCT of Delhi (2010) where it said that conviction can be solely based on dying declaration.
  • The Supreme Court scrutinized the dying declaration and found it credible, leading to the conviction of Pappi @ Mashkoor.
  • However, the Court acquitted Naeema and Naeem due to insufficient evidence linking them directly to the crime.
  • The Court emphasized the importance of a fit state of mind of the victim during the dying declaration and the absence of coercion or tutoring.

What were the Guidelines of Supreme Court in Atbir v. Government of NCT of Delhi (2010)?

    • Full Confidence of Court:
      • Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
    • Deceased’s Fit State of Mind:
      • The deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
    • True and Voluntary Declaration:
      • The declaration is true and voluntary, it can base its conviction without any further corroboration.
    • No Absolute Rule of Corroboration:
      • It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
      • Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
    • When Dying Declaration Cannot Solely Convict:
      • A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
    • No Rejection on Absence of All Details:
      • Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
      • Even if it is a brief statement, it is not to be discarded.
    • Role of Eyewitness:
      • When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
    • Dying Declaration can Solely Lead Convict:
      • If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

What is the New and Old Criminal Law on Dying Declaration?

Legislation Indian Evidence Act, 1872 (IEA) Bharatiya Sakshya Adhiniyam, 2023 (BSA)
Section Section 32 (1) of IEA Section 26 (a) of BSA
No Change in Provision Section 32 (1) of IEA states that statements, written or verbal, made by a deceased regarding the cause of their death or related circumstances are relevant in cases questioning the cause of death, regardless of the person's expectations or the nature of the proceeding. Section 26 (a) states that statements, whether written or verbal, made by a deceased person regarding the cause of their death or circumstances leading to it are admissible as evidence, regardless of the person's expectation of death or the nature of the proceedings.

Criminal Law

Protection of Children from Sexual Offences Act, 2012 (POCSO)

 07-Mar-2024

Source: Supreme Court

Why in News?

Recently, a division bench of Justices Abhay S. Oka and Ujjal Bhuyan rejected One Day Trial in a case of Protection of Children from Sexual Offences Act, 2012 (POCSO).

  • The Supreme Court rejected allowed the One Day Trial in the case of Bablu Yadav v. State of Bihar.

What was the Background of Bablu Yadav v. State of Bihar Case?

  • Facts of the Case:
    • The accused was convicted of offences punishable under Section 376 AB of the Indian Penal Code, 1860 (IPC) and Section 4 of the POCSO Act.
    • The incident involved the appellant enticing an eight-year-old victim female child, taking her to a shop and then to a ‘Bagaan’ where he committed penetrative sexual assault.
    • The victim disclosed the incident to her mother, leading to the filing of a police report on the same day of the incident.
    • The trial was conducted swiftly in one day, with the entire process, including framing of charges, evidence recording, and judgment, being concluded in one day, on 15th December 2021.
  • Opinion of the Patna High Court:
    • An appeal against the trial conducted in one day was preferred before the Patna High Court.
    • The High Court observed that the trial court had shown haste in concluding the trial within a day, which was in violation of principles of natural justice and Article 21 of the Constitution of India.
    • The High Court further held that the accused was not afforded a fair trial due to the swift proceedings.
    • Therefore, the High Court quashed the impugned Judgment and Order, remanding the matter back to the trial court for a fresh trial from the stage of framing of charges.
    • The Patna High Court clarified that its decision did not imply any opinion on the merits of the case but focused solely on the denial of fair trial rights to the accused.
  • Case Before Supreme Court:
    • A Criminal Appeal was preferred before the Supreme Court against the order of High Court to conduct fresh trial.

What were the Court’s Observations?

  • The Supreme Court approved the High Court's approach and directed the State Government to appoint a Special Public Prosecutor under POCSO.
  • The Supreme Court emphasized that the trial must adhere to the provisions of Section 309 of the Code of Criminal Procedure, 1973 (CrPC).
  • The Special Court and Prosecutor were directed to proceed with fresh trial.

What is the POCSO Act?

  • About:
    • The POCSO Act, enacted in 2012, stands as a landmark legislation aimed at safeguarding children from sexual abuse and exploitation.
    • It addresses the vulnerability of children and aims to ensure their safety and well-being.
    • It was enacted in consonance of the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations which was acceded by the Government of India on the 11th December, 1992.
  • Preamble:
    • It is an act to protect children from offences of sexual assault, sexual harassment and pornography.
      • And provide for the establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
  • Major Dates:
    • Its enactment date is 19th June 2012 whereas the POSCO was enforced on 14th November 2012.
  • POCSO Amendment Act, 2019:
    • POCSO was later amended by POCSO Amendment Act, 2019 which came into force on 16th August, 2019.
    • The POCSO Amendment Act, 2019 introduced stringent penalties, inserted clause (da) in Sub-section (1) of Section 2 of POCSO defining child pornography.
    • It also inserted penetrative sexual harassment with on a child below sixteen years of age under Section 4 of the POCSO Act.
  • Bail in POCSO:

What are Important Authorities in POCSO Act?

    • Police Authorities:
      • The police play a crucial role in investigating complaints of child sexual abuse and initiating legal proceedings against the perpetrators.
    • Special Juvenile Police Unit (SJPU) (Section 19 and 20 POCSO):
      • Record Information
      • Conduct preliminary inquiry
      • Report the case to CWC within 24 hours
      • Produce child before CWC with 24 hours
    • Child Welfare Committee (CWC):
      • CWC is responsible for ensuring the welfare and protection of children who are victims of sexual offences.
    • Special Courts:
      • The State Government designates a Court of Session in each district for speedy trial under Section 28 of POSCO. Consultation with the Chief Justice of the High Court is mandatory.
      • Under Section 31 of POSCO Special Court follows the Criminal Procedure Code, treating it as a Court of Sessions.
      • Special Court can take cognizance without commitment, ensuring child-friendly proceedings.
      • Under Section 34 of POCSO the Special Court determines the age of the accused and records reasons for its decision.
      • Trials are conducted by the Special Court in camera, allowing the presence of trusted individuals.
    • Special Public Prosecutors (Section 32):
      • The state appoints Special Public Prosecutors with at least seven years of advocacy.
    • Assistance of Interpreters or Experts (Section 38):
      • Translators or experts assist in recording evidence, especially for disabled children.
    • Role of Media:
      • The obligations and procedures for media regarding reporting on cases involving children are outlined in Sections 20 and 23 of POCSO.
      • Section 20 mandates reporting sexually exploitative material to the authorities.
      • While Section 23 governs media conduct, including restrictions on disclosing a child's identity without court permission.
        • Violations incur imprisonment of either description for a period which shall not be less than six months, but which may extend to one year or with fine or with both.

What are Offences Under POCSO Act?

Offences Definition Punishment
Penetrative sexual assault (u/s 3 & 4 of POCSO) Involves penetrating one's penis, object, or body part into a child's vagina, mouth, urethra, or anus, or manipulating the child's body parts to cause penetration. Rigorous imprisonment not less than twenty years, extendable to life-or-death penalty, and fine.
Aggravated Penetrative Sexual Assault (u/s 5 & 6 of POCSO) Involves penetrative sexual assault by police, armed forces, public servants, management/staff of certain institutions, gang assault, use of deadly weapons, etc. Rigorous imprisonment not less than twenty years, extendable to life or death penalty, and fine.
Sexual Assault (u/s 7 & 8 of POCSO) Involves touching child's sexual organs or making the child touch sexual organs with sexual intent, without penetration. Imprisonment of not less than three years, extendable to five years, and fine.
Aggravated Sexual Assault (u/s 9 & 10 of POCSO) Similar to penetrative sexual assault but involving aggravating factors like using weapons, causing grievous hurt, mental illness, pregnancy, or previous convictions. Imprisonment of not less than five years, extendable to seven years, and fine.
Sexual Harassment (u/s 11 & 12 of POCSO) Various acts intending sexual gratification including gestures, exhibiting body parts, enticement for pornographic purposes, etc. Imprisonment not exceeding three years and fine.
Use of Child for Pornographic Purposes (u/s 13, 14 & 15 of POCSO) Involves using a child in pornographic materials or acts. Section 15 punishes storage of pornographic material. Imprisonment of not less than five years, extendable to seven years, and fine.
Abetment of and Attempt to Commit an Offence ((u/s 16, 17 & 18 of POCSO) Involves instigating, conspiring, or aiding an offence. Varies based on the severity of the abetment or attempt, matching the punishment for the corresponding offence.
Failure to Report or Record a Case (Section 21 of POCSO) Failure to report or record an offence under the Act. Imprisonment up to six months, fine, or both.
False Complaint or False Information (Section 22 of POCSO) Making false complaints or providing false information with malicious intent. Imprisonment up to six months, fine, or both, depending on the circumstances.