Right to fair trial

1
RIGHT TO FAIR TRIAL
R. Muralidharan,
Advocate, Law Lecturer, Mediator,
Patents and Trademarks Attorney,
Mail to : muralimanu@gmail.com
Mobile : 9448247549.
Note : For instructional use only.

Due Process
 The Due Process of law contemplates two types
of due processes:
a) Substantive Due Process namely the law that
makes the act penal or as an offence that must
be a fair law.
b) Procedural Due Process :
If a person is prosecuted for violation of fair
laws, the prosecution will be in accordance
with certain procedures that makes the system
fair.
3

Origins of the right
 The right to fair trial is a constitutional right
enshrined in Articles 14 and 21 of the
Constitution of India.
 Fair trial is a very broad concept but yet it is a
very specific process.
 2 aspects of fair trial:
a) The punishment is after a fair trial having just
procedure.
b) Establishment of guilt beyond reasonable
doubt.
4

Basic attributes of fair trial
 The basic attributes of the fair trial can be traced from
the Universal Declaration of Human Rights, 1948.
 They are enshrined in Articles 10 and 11 of the
Declaration.
 Art. 10: Every one is entitled in full equality, to fair and
public hearing by an independent and Impartial tribunal
in the determination of his rights and obligations of any
criminal charge against him.
 Art 11: Every one charged with a penal offence has the
right to be presumed innocent until proved guilty. The
trial must be public in which the accused has had all
the guarantees necessary for his defense.
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The Trial
 The purpose of the trial is to conclusively
determine the innocence or the guilt of a party.
 There are different forms of a trial. These are
dealt with in the Criminal Procedure Code in
Chapters XVIII, XIX and XX.
 The concept of fair trial means that the entire
process viz., pre-trial and the trial itself must
be fair.
8

Pre-trial processes
 Before the commencement of the trial, the
investigation is done by the police. This is dealt
with in chapter XII of the Cr. P. C.
 Section 154 deals with the lodging of first
information. Although, the term “first
information” is not used, the information as
described under this section is treated as first
information.
 The lodging of information/complaint under
this section is vital and marks the beginning of
the investigation process.
10

What is FIR?
 First Information Report (FIR) is a written document
prepared by the police when they receive information
about the commission of a cognizable offence.
 It is a report of information that reaches the police first in
point of time and that is why it is called the First
Information Report.
 It is generally a complaint lodged with the police by the
victim of a cognizable offence or by someone on his/her
behalf.
 Anyone can report the commission of a cognizable
offence either orally or in writing to the police. Even a
telephonic message can be treated as an FIR.
11

FIR
 Generally a Complaint/FIR will be registered on the statement
of victims. A copy of FIR will also be given to the complainant
free of cost.
 The first information is then recorded by the police, and under
Section 157 the information is to be forwarded to a magistrate.
 Sections 160 and 161: powers of the police to interrogate
witnesses. They are empowered to make written statements of
the information thus obtained. This should not contain witness
signature. It can be video graphed.
 The power of the police to call witnesses is laid down in
Section 160 of the code.
 The process to compel the appearance of witnesses is
prescribed in Chapter VI of the code.
12

Section 162
13
 No statement made by any person to a police officer in
the course of an investigation under this Chapter, shall,
if reduced to writing, be signed by the person making it.
 Nor shall any such statement or any record thereof,
whether in a police diary or otherwise, or any part of
such statement or any record thereof, be used for any
purpose at any inquiry or trial in respect of any offence
under investigation at the time when such statement
was made.

Section 173
 This section compels that as soon as the
police complete the investigation of the
crime, they must forward the police report to
a magistrate empowered to take cognizance
of the offence.
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Essentials of the Police Report
The following must be included in the police report:
1. Names of the parties.
2. Nature of the information.
3. Names of the persons who appear to be acquainted with the
circumstances of the case.
4. Whether any offence appears to have been committed, and
if so by whom.
5. Whether the person has been arrested.
6. Whether he has been released on bond and if so, with or
without sureties.
7. Whether his conviction has been forwarded under Section
170 of the code.
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Public Prosecutor
 The term “public prosecutor” has been
defined in Section 24 of the act.
 It is the duty of the State to appoint public
prosecutors, for High Courts and every
district of the state.
 The state may appoint one or more
additional prosecutors for every district.
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Importance of Public prosecutor
 Section 225 states that in every trial before a Court
of Sessions, the trial must be conducted by a Public
Prosecutor.
 It is possible that the state prosecutor can conduct
any prosecution in the entire state.
 Conduct of trial by the public prosecutor is
mandatory and a police officer conducting the trial
is highly objectionable.
 Even victim’s lawyer cannot conduct the trial unless
he is appointed as Special Prosecutor.
19

Functions of the public prosecutor
 The principle behind the need for a public prosecutor is
the necessity of a fair trial.
 The public prosecutor may(What about the victim’s
right?) always take the assistance of a counsel retained
by a private individual.
 The law gives the public prosecutor a real discretion in
the duties that he is to carry out.
 With the permission of the court, he is entitled to with
draw from the prosecution at any time thus putting an
end to the prosecution.
20

Special prosecutor
 A special prosecutor generally is a lawyer from outside
the government appointed by an attorney General to investigate
a government official for misconduct while in office.
 A reasoning for such an appointment is that the governmental
branch or agency may have political connections to those it
might be asked to investigate.
 Inherently, this creates a conflict of interest and a solution is to
have someone from outside the department lead the
investigation.
 The term "special prosecutor" may have a variety of meanings
from one country to the next, from one government branch to the
next within the same country, and within different agencies
within each government branch.
 Critics of the use of special prosecutors argue that these
investigators act as a "4th branch" to the government because
they are not subject to limitations in spending or have deadlines
to meet.
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The ban against Pvt prosecutor!!
 To allow the prosecution to be conducted by
a counsel engaged and briefed by the
complainant is against the mandatory nature
of this section.
23

Opening case of the prosecution
 Section 226 of the Cr. P. C., states that :
 The accused appears or is brought before the
Court in pursuance of a commitment of the case
under Section 209.
 the prosecutor shall open his case by
describing the charge brought against accused
and stating by what evidence he proposes to
prove the guilt of the accused.
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Conduct of Prosecution
 However, it is not necessary for the public
prosecutor to give full details regarding the
evidence.
 However, in order that the trial be conducted
fairly, the public prosecutor is not allowed to
withhold any evidence.
 At this stage of the trial, the main function is to
bring forth the evidence. No doubtful questions
on the admissibility of evidence should be
raised at this point in the proceedings.
25

Discharge
 According to S.227 if the judge feels that
there is not enough evidence against the
accused, and that it is not worth taking up
the trial, then the Judge can discharge the
accused, if there is no prima facie case .
 A discharge, though good, will not entitle
the accused the benefit of Double Jeopardy.
There can be fresh trial if there is new or
additional evidence.
26

Framing of charge
 After the hearing, if the judge is not convinced
of the innocence of the accused, and does not
wish to discharge him, then there are two
courses of action that may be taken.
 If the case is exclusively triable by that court,
then the judge may go ahead and frame the
charges in writing.
 If not, then the judge may send a report to the
Chief Judicial Magistrate, who shall try the case
in accordance with the procedure for trial on
warrant cases.
27

Framing of charge
 It is to be noted that the forwarding of the
case to the CJM without the court framing the
charge is not illegal.
 The provision “may frame a charge” against
the accused, is directory and not mandatory
on the judge.
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Accused should be told about the charges
 At the stage of framing the charges, it is not the
duty of the court to minutely go into the details of
the merits of the evidence. That happens during
the actual conduct of the Trial.
 Once the charge has been framed, it must be read
and explained to the accused and the accused
shall be asked whether he pleads guilty or desires
to be tried.
 This pleading of “guilty” or “not guilty” must be
done by the accused himself and not by the
counsel for the accused, except when the offence
is punishable only with fine.
30

Who frames the charges?
 It is highly desirable, although not expressly
mandatory, that the charge must be framed
by the Sessions Judge himself.
 If the accused pleads guilty, the under
section 229 of the code, the judge shall
record the plea.
 In the discretion of the judge, he may
convict him thereon.
 However, incase of doubtful plea, it should
be deemed as not guilty plea.
32

Language used
 The charges are usually framed in the
vernacular language of that place, but may
be framed in any other language as well.
 Framing of charge must be done with care
and caution, and there must be a separate
count of charge for each penal section.
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Presumption of innocence
 The presumption of innocence is one of the
cardinal principles which should always be kept
in mind during the administration of justice.
 In the case of S.A.A. Biyabani v State of
Madras, (AIR 1954 SC 645) it was conclusively
held that even in an appeal case, the
presumption of innocence on the part of the
accused is not weakened.
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Role of the judge
 The presumption of innocence only ends when
the lower court, convicts the accused.
 This was held in B.R. Kapur v State of TN-
(2001 (7) SCC 231)
 It is the duty of the judge while adjudicating a
case, to ensure that not only is an innocent man
not punished, but a guilty person be given his
punishment.
 Both aspects are equally important and a trial
cannot be a fair trial if a guilty person is
allowed to go free.
35

Accused when benefited?
 The court however requires a high standard of evidence to
impose punishment on a person.
 The law, unless specified otherwise by the relevant penal
statute gives the benefit of the doubt to the accused.
 The law should however not stretch to include every small
hunch, and hesitancy.
 The need to maintain a pragmatic, real and efficient system
that should be tough on offenders should be achieved by
striking a balance between the judicial enthusiasm for
presumed innocence and the punishment of the guilty.
36

Relevant concepts on conviction
 In order for the trial to be fair, the fairness must
continue in the post trial stage as well.
 These rules are generally followed during the
process of conviction:-
a) The conviction must be on plea recorded by the
sessions judge (for sessions trial) and not that of
the committing magistrate.
b) The conviction is for the offence to which the
accused pleaded guilty.
37

Joint Trial
 When in a joint trial of more than one person, if one
of the accused pleads guilty, his statements affect only
him and the other accused must be independently
proved.
 Then again one must also bear in mind that the trial of
an accused person need not necessarily end if he
pleads guilty, because the judge may or may not
choose to act upon this plea.
38

Evidence of Co-Accused
 The practice in India often is that in a joint trial,
the accused are tried in order so that the
confession of one is used as evidence against the
others under S.30 of the Evidence Act.
 However, if one of the co-accused is convicted,
then he is free to appear as a competent witness
for the side of the prosecution.
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Problems in ensuring fair trial
 While, the framers of law can prepare legislation that ensures
maximum fairness, the execution of the procedure is equally
important in maintaining fairness.
 Some of the problems caused by the police are :-
 Delay in recording the first information.
 Interpolation and alteration in the first information and
other documents.
 Avoiding registration of cognizable offences.
 Conversion of cognizable offences into non- cognizable
offences.
 Preparation of search and seizure lists.
 Illegal detentions and improper arrests.
 Fabrication of evidences.
 Use of third degree method for obtaining confession.
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More problems..
 Harassment of witnesses.
 Accepting bribes and institution of false cases.
We will now look at some of the individual problem
caused by the police, during the course of conducting
the trial.
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Third degree methods (or torture)
 Under Conventions on international law, the term
torture or third degree methods refer to:
• The intentional infliction of severe physical or
• Mental pain or
• Suffering,
 in order to intimidate, coerce, obtain information or a
confession, with a view to secure punishment.
 However, the term is restricted to actions committed by
persons acting in an official capacity.
42

Conventions against torture
 The UN convention against torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment which
came into force in 1987 and to which more than two-
thirds of the world’s nations are parties, bans torture
and other abusive treatment of any person.
 That tortured individuals divulge false information is
known to be true, and an instance of this was reported
to have contributed to the Bush administration's belief
that Iraq had helped train militant Islamic terrorists.
44

Third Degree methods..
 The psychological modes of investigation are mere
substitutes for the physical third degree method of
investigation.
 Therefore, although it does not come under the
classification of torture, it cannot be used for basis of
confirmation of offences.
 The tests only show the body’s reaction to questions
and does not meet the “falsifiability criterion”
 Meeting of this criterion is necessary for admissibility.
45

NHRC report on custodial deaths
46

State wise deaths in prison custody
48

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NHRC report
 The data of the NHRC does not reflect the actual
extent of custodial death in India.
 These deaths reflect only a fraction of total deaths
because not all custodial deaths are reported to the
NHRC.
 As this report indicates, more than four persons have
been killed each day in the last decade from 2001 to
2010.
 It shows that there has been no reduction of
incidents of torture in India.
 A large majority of these deaths are a direct
consequence of torture in custody.
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Protection from 3rd degree methods
 The precious right given by Article 21 cannot be denied to
prisoners and convicts.
 Section 7 of the Police Act, 1861 empowers the higher
officers to “dismiss, suspend or reduce any officer to the
sub-ordinate ranks whom they shall think is negligent in
discharge of his duties or unfit for the same.”
 Section 29 of the Act provides that any police officer
violating the rules and regulations including any police
officer who shall offer any unwarrantable personal violence
to any person in his custody shall be punished with three
months’ rigorous imprisonment.
52

NARCO-ANALYSIS ( an invasive method)
 Narco analysis, is a test used.
 In this test, Sodium Pentothal is the drug that is used.
 However, this drug merely helps reveal information
concealed by a person, these could be fantasies, or
simply mixed feelings
 There is no scientific basis for determining truth in
these cases.
 This only reveal “psychological truths and not
“probative truths.” (the police look for probative truth)
53

Smt. Selvi v. State of Karnataka (2004 (7) KarLJ 501)
Facts:
 The complainant namely, Kavita, is the daughter of accused 1 and
2. She and deceased Shivakumar (who belonged to different caste
from that of Kavita) fell in love and married against the wishes of
accused 1 and 2.
 According to the complainant, on 10-4-2004, at about 8.00 p.m.,
when she and her deceased husband were returning to home, a
maruthi van bearing No. KA-04-MA3167 came and four persons
kidnapped her husband in that van.
 So, she lodged a complaint, for the offence under Section 365 of the
Indian Penal Code at Police Station.
 Thereafter, a dead body was found by one Nagendra Kumar on 11-
4-2004 by the side of Hindustan Granite Factory compound at
Attibele. So, he filed a complaint at Attibele Police Station.
55

Facts continuation
 That was registered for the offence under Section 302 of
the Indian Penal Code against unknown persons on 11-4-
2004.
 During investigation, said dead body was found to be the
dead body of deceased Shivakumar.
 During investigation, witnesses examined including the
parents of deceased besides the complainant Kavita, wife
of deceased Shivakumar, suspected the hands of accused 1
and 2 (who are parents of Kavita) along with others in the
murder of Shivakumar.
 Since the entire case of prosecution (regarding murder of
deceased Shivakumar) depends only on circumstantial
evidence, the prosecution sought permission from the
Court to conduct Polygraph and Brain Mapping Tests on
accused.
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Order of the court
 Involuntary subjection of a person to narco-analysis
violates Article 20(3) of the Constitution, which
provides that 'No person accused of any offence shall be
compelled to be a witness against himself.' (the 'right to
silence').
 The Court has, apparently, also held that even when a
person volunteers to be subject to these tests, their result
cannot be admitted as evidence in a court of law.
 Such procedures “are illegal and a violation of personal
liberty”, ruled a three-judge bench headed by Chief
Justice K.G. Balakrishnan.
 The order came in response to petitions questioning the
validity of such tests that were filed by persons accused
in various criminal cases.
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Evidence for prosecution at the Sessions Trial
 Section 231 of the Cr.P.C. says that on the date so fixed, the judge
shall proceed to take all such evidence as may be produced in
support of the prosecution.
 This Section enjoins that all evidence is to be taken and that the
accused cannot be acquitted merely if the prosecution is not
present.
 The words “all such evidence” in the sub-section cannot be read
as meaning only such evidence as relates to those persons who
have been examined the police.
 It is always open to the prosecution to examine them at a later
stage provided adequate notice is given to the accused, copies of
statements made by those witnesses before the police during
investigation are supplied to the accused.
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Act of prosecution
 It is not the duty of the prosecution to call witnesses who
are not in a position to give material information in
connection with the offence which has given rise to the
prosecution or to tender such witness for cross examination
by the defense.
 However, the public prosecutor should not refuse to call, or
put into the witness box for cross examination, a truthful
witness merely because his evidence may be in some
respect be favorable to the defense.
 The prosecution is thus required to act fairly and honestly,
and must never adopt the device of keeping back from the
court eye-witnesses only because their evidence is likely to
go against the prosecution case.
59

DOG TRACKING EVIDENCE
 There are basically three kinds of police dogs –
 the tracker dogs, the patrol dogs and the sniffer dogs.
 Recent trends show that hounds belonging to certain
special breeds sheltered in specialized kennels and
imparted with special training are capable of leading
investigating agency to very useful clue in crime detection
and thereby help detectives to make a breakthrough in
investigation.
 English courts have already started treating such evidence
as admissible. In Canada and in Scotland such evidence
has become, of late, admissible though in United States
the position is not uniform in different States.
61

SC on canine evidence
63
 Gade Lakshmi Mangraju vs. State Of Andhra Pradesh,
(2001 AIR 2677), 2001( 6 )SCC 205.
The facts of the case are:
 The witness is the police constable who deployed the police dog
"Raja" for the purpose of tracking down the culprits of this murder.
 He said that the police dog was brought to the place of occurrence and
that dog after smelling the place, led to the recovery of
 blood,
 bloodstained handkerchief,
 a knife and
 a belt which were strewn on the floor near the dead body,
 began its pursuit in search of the hideout of the culprits or where the
body was stashed away.

Advantages
64
 Here, The track which the terrier followed thereafter has
been narrated by the witness in his evidence. The termini of
the track was the house of the appellant.
 The uncanny smelling power of canine species has been
profitably tapped by investigating agencies to track the
culprits.
 Trained dogs can pick up scent from the scene of any object
and trace out the routes through which the culprits would
have gone to reach their hideouts.

Application in criminal cases?
 Developing countries have utilized such
sniffer dogs in a large measure.
 In India also the utilization of such
tracker dogs is on the increase.
 Though such dogs may be useful to the
investigating officers, can their
movements be of any help to the court in
evaluating the evidence in criminal cases?
65

Criticism
67
 A four-fold criticism is advanced against the reception
of such evidence:
 First is, it is not possible to test the correctness of the
canine movements through the normal method
available in criminal cases, i.e. in cross- examination.
 Second is that the life and liberty of human beings
should not be made to depend on animal sensibilities.
 Third is that the possibility of a dog misjudging the
smell or mistaking the track cannot be ruled out, or
many a times such mistakes have happened.
 Fourth is that even today the science has not finally
pronounced about the accuracy of canine tracking.

Are dogs reliable?
68
 The weakness of the evidence based on tracker dogs has been
dealt with in an article "Police and Security Dogs".
 The possibility of error on the part of the dog or its master is the
first among them.
 The possibility of misunderstanding between the dog and its
master is close to its heels.
 The possibility of a misrepresentation or a wrong inference from
the behavior of the dog could not be ruled out.
 The last, but not the least, is the fact that from a scientific point of
view, there is little knowledge and much uncertainty as to the
precise faculties which enable police dogs to track and identify
criminals.
 Police dogs engage in these actions by virtue of instincts and also
by the training imparted to them.

No obligation to examine all witnesses
 However, there is no obligation on the part of the public prosecutor
to cite and examine all the witnesses.
 Where there are many eye-witnesses to an occurrence and the
prosecutor does not call some of them, the court is obliged to
disbelieve the prosecution simply on the ground that others have
not been called.
 It is not necessary to cite and examine all the witnesses of an
occurrence and thereby multiplying the evidence. The
Investigating Officer should make sure that the omission to cite an
Eye witness is justifiable.
 However, when there are differences in the opinions and
perspectives of the eye-witnesses, then the court has to listen to all
the different opinions and attempt to reconstruct what really
happened on its own.
69

Impact of omission
 Omission in producing any witness by the prosecution does
not necessarily lead to rejection of other evidence or adverse
influence.
 However, if at the trial, it is shown that persons who had
witnessed the incident have been deliberately kept back, the
court may draw an inference against the prosecution and may,
in a proper case consider this as a serious infirmity in the
proof of the prosecution case.
70

Duty of prosecution
 The prosecution cannot be permitted to lead evidence
relating to inconsistent cases.
 In cases where death is alleged to have been committed
by a weapon, it is the duty of the prosecution to prove
by expert evidence that it was likely or at least possible
for the injuries to have at least been caused, with the
weapon with which they are alleged to have been
caused.
72

Direct evidence
 It is not necessary, nor possible for the prosecution to
prove motive in every case. In a case where the evidence
connecting the accused with the crime is clear and
convincing, the absence of proof on motive is not of
much consequence.
 Similarly, when direct evidence has been produced, it is
not compulsory for the prosecution to produce
documentary evidence.
73

Examination of witnesses
 The public prosecutors should be careful in examining
medical witnesses, especially during murder trials.
 For further ensuring the fairness of the trial, the judges
should also bring take proper care in recording the
statements given by the doctors, as to whether the
injuries would have been sufficient to cause death in the
normal course of things.
75

Absent witness
 It is the duty of the sessions judge, to see that all
material witnesses summoned to give evidence are
examined and if any such witnesses are absent, to
adjourn the case and take coercive steps, if necessary
for their attendance.
77

Acquittal
 Section 232 of the Cr.P.C. deals with the process of acquittal.
 After taking the evidence for the prosecution, examining the
accused and hearing the prosecution and the defense on the
point, the Judge considers that there is no evidence that the
accused committed the offence, the Judge shall record an
order of acquittal.
78

No evidence
79
 This section applies to the case of “no evidence” and
would not cover a case where the court considers that
the charge is in itself improper.
 The words ‘there is no evidence’ does not mean that
there is no proper evidence; it means that even if there
is evidence which is perfectly true, which would not
amount as legal proof of the charge against the accused,
it will be construed as there being no evidence.

Trial of warrant-cases by Magistrates
 Chapter XIX of the Code deals with the trial of
warrant cases.
 It extends from Section 238 up till Section 250 of
the code.
 There are certain analogies between the sessions
court trial and the trials covered under this chapter
of the code.
82

Discharge in warrant cases
 Section 227 of the code, deals with the discharge of the accused
in the sessions trial. Analogous to that section is Section 239,
which deals with when the accused shall be discharged under
warrant cases.
 The provisions in this section are similar to the provisions of
Section 227, with the difference that under this section there is
provision for the examination of the accused also.
 At this stage, it is not possible to dispute the veracity of facts.
 This section gives the magistrate power to go beyond the
documents that have been filed under s. 173 of the act.
 If the prosecution files any document after filing the report
under s.173 and before the charge, that document can be taken
into consideration for purposes of framing the charge.
84

More on Section 239
 The section provides an opportunity of being
heard. The term hearing in this section does not
merely mean an oral hearing, but also includes
the production of documents.
 In the circumstance that the court finds the
charge against the accused to be “groundless”,
the accused will automatically be discharged
under this section.
85

Warrant cases
 Section 240, similar to section 228, but this deals with
the same process for a warrant trial.
 The prime consideration while framing a charge under
this section is that one has to look at a case prima facie
and decide whether or not there is a case against the
accused.
86

Conviction under Section 241
 Section 241 of the code allows a conviction when the
accused pleads guilty. The magistrate shall record the
plea and then convict him as guilty, although this shall
be done in his discretion.
 The reason that the plea is to be recorded, is because the
magistrate has to ultimately justify the conviction of the
accused.
 However, just like the provision under s. 229, the
accused is not bound by the conviction of the co-
accused.
87

Evidence in warrant cases
 Sections 242 and 243 are the sections that deal with
evidence in the warrant cases.
 Section 242 states that it is the duty of the magistrate to
take all such evidence as may be produced and also to
compel the appearance of witnesses.
 Furthermore, a witness not cited in the charge sheet
may be examined, even at a later stage of the trial
though there may be circumstances when it may cause
prejudice to an accused.
 On the flipside, it is not necessary for the prosecution to
produced all the witnesses before the court.
88

Evidence in warrant cases (cont..)
 When the accused makes an application for the
summoning of witnesses to the court, the Magistrate is
under a duty to deal with the application and pass an
order either granting the prayer or refusing it.
 He does not have the power to order that the application
be returned.
 However, the accused has no absolute right to have
them summoned as the magistrate can have them
rejected on various grounds.
 This effectively means that such witnesses cannot be
compelled to appear ordinarily, but there is no
restriction on their examination.
90

Evidence in warrant cases (contd..)
 However, in relation to documents, the accused has no
right to call for the production of documents in
possession of the accused, until a charge has been
framed against him and read out to him.
91

Section 244
 When cases are brought before the magistrate without
the filing of a police report, then the power of the
magistrate to try the offence is governed by s.244.
 Under S.244 the magistrate is bound to examine
witnesses produced. A magistrate is bound to examine
every one of the witnesses called by the complainant.
 If a witness has turned hostile, it does not mean that the
witness has to be thrown overboard. It just means that
the only part of the evidence that can be relied upon is
the part that is in conformity with other evidence.
92

Evidence in warrant cases (contd..)
 There is no obligation to examine all witnesses, but the
non examination of a witness may lead to adverse
inference.
 When a witness who is named in the petition of a
complaint is not examined in the case, the question
whether an inference can be drawn will depend on the
nature of the evidence.
94

Identification Parade
 A group of persons including one suspected of
having committed a crime assembled for the
purpose of discovering whether a witness can
identify the suspect.
 The necessity for holding an identification parade
can arise only when the accused are not previously
known to the witnesses.
 The whole idea of a test identification parade is
that witnesses who claim to have seen the culprits
at the time of occurrence are to identify them from
the midst of other persons without any aid or any
other source.
95

Objective of test
97
a) Use the memory of the witness based on the first impression.
b) To check whether person’s Identifying or others can be eye
witnesses to the crime.
c) Neither Cr.P.C nor Evidence act have any provisions on
Identification Parade.

The test
98
 It is desirable that a test identification parade
should be conducted as soon as after the arrest
of the accused.
 This becomes necessary to eliminate the
possibility of the accused being shown to the
witnesses prior to the test identification parade.
 This is a very common plea of the accused and,
therefore, the prosecution has to be cautious to
ensure that there is no scope for making such
allegation.

Also admitted as facts
 If, however, circumstances are beyond control
and there is some delay, it cannot be said to be
fatal to the prosecution.
 They do not constitute substantive evidence and
these parades are essentially governed by
Section 162 of the Code.
 Failure to hold a test identification parade
would not make inadmissible the evidence of
identification in Court. The weight to be
attached to such identification should be a
matter for the Courts of fact.
99

Case laws
100
 Case law: Amitsingh Bhikamsing Thakur v. State of Maharashtra
(AIR 2007 SC 676).
 Identification of the accused through a test identification parade
has no legal value.
 As was observed by the Court in:
 Matru v. State of U.P. (1971 (2) SCC 75) identification tests do
not constitute substantive evidence.
 They are primarily meant for the purpose of helping the
investigating agency with an assurance that their progress with the
investigation into the offence is proceeding on the right lines.
 The identification can only be used as corroborative of the
statement in court. Santokh Singh v. Izhar Hussain (1973 (2) SCC
406).

Unfair Trials
 Ibrahim Anwar’s Trial in Malaysia.
 Ken Saro-Wiwa’s trial.
102

Anwar Ibrahim’s Trial
 In 1998, Anwar Ibrahim was charged with corruption and
sodomy.
 In 2000, he was sentenced to nine years for engaging
in sodomy with his 19-year-old male chauffeur and his former
male speech writer.
 Despite national and international protests, he was not released
until he had served out four years of his sentence, in 2004, when
the Federal Court of Malaysia acquitted him of all charges.
 After his release, Anwar stated that he was innocent and the
allegations were part of a government conspiracy to end his
political career.
 He also felt that the national criminal laws against homosexuality
ought to be reformed to protect consenting adult's right to have a
private life, although he also stated that gay marriage, "is going a
bit too far".
103

Further proceedings..
 In 2007, former Prime Minister Mahathir Mohammad responded
to a civil lawsuit filed by Anwar by stating that a homosexual
should not hold public office in Malaysia and that he knew Anwar
was a homosexual because Anwar's male chauffeur and a male
speech writer both stated in court that they had had sexual
relations with Anwar.
 In July 2008, Anwar was arrested again, accused of sodomy with
a male former aide. The arrest came shortly after Anwar claimed
to be in a position to challenge the governing coalition after the
opposition's successes in the march elections.
 However, he was released on bail and won the campaign for his
former seat in Parliament, and currently leads the opposition in
Parliament.
104

Putting Homo-sexuality in the right perspective
105
 There is a need for laws that recognize sexuality as a positive aspect
of human life.
 Some of the most emotional and divisive issues in our society,
specifically issues concerning gay rights, revolve around two
central and critical questions: should homosexual activity be
legalized or branded immoral and illegal?
 In an effort to bring clarity to these issues, an intellectual forum
titled “Homosexuality: Crime or Right” was held at the
International Islamic University Malaysia (IIUM).
 The speakers were Dr Shamrayahu Abdul Aziz, constitutional
expert (IIUM); Lim Chee Wee, Malaysian Bar president; and Dr
Farouk Musa, chairman of Islamic Renaissance Front.

Questioning state intervention
 In matters of personal morality, asking: does the state have a
right to do this?
 Anwar called for a review of the Penal Code after he was
acquitted of all charges.
 The Penal Code has some semblance to Islamic law. Since
1938, there were seven cases tried under 377; out of the
seven, four were related to Anwar. It implies, as lay person,
that 377 has been used as a tool to persecute a state
opponent.
106

Thinking around the world
 Drafted by Lord Macaulay in 1860, Section 377 is a sodomy law
which criminalizes “carnal intercourse against the order of nature”.
 The UN General Assembly declaration, which is not legally
binding, condemns rights abuses against gays and urges states to
pass laws to ensure that “sexual orientation or gender identity”
cannot “be the basis for criminal penalties, in particular executions,
arrests or detention”.
 Human rights groups report that homosexuality is still outlawed by
more than 85 countries and that it is punishable by death in several
Islamic states, including Afghanistan, Iran, Saudi Arabia, Sudan and
Yemen.
 The UN declaration on gender and sexual orientation discrimination
was sharply criticized by Islamic countries, which assert that it
would promote sexual behavior that is considered socially
unacceptable. The Vatican also denounced the declaration.
107

Do homosexual deserve death?
 At the turn of the 21st century, criminal penalties for homosexual acts
remained part of legal codes primarily in three countries.
 Executions of homosexual men were reported in the 1990s in the
radical, theocratic states of Iran and Afghanistan, as well as in Saudi
Arabia.
 With the fall of the Soviet Union, most of the newly independent
states, including Russia, moved rapidly to decriminalize
homosexuality, but some Islamic republics still retain the Stalinist
legal code.
 Criminal law is, of course, not a reliable guide to actual practice.
Applied to consenting, sexual behavior, it is necessarily arbitrary and
uneven. Enforcement typically relies on vindictive neighbors, police
intrusion, or periodic campaigns of prosecution which depend on the
motivations of political elites and moral entrepreneurs.
 Because it is a charge that is virtually impossible to disprove, sodomy
law has long proven to be a convenient political weapon in the absence
of legitimate wrongdoing.
108

Other questions
 2 questions:
a) if we know anyone who belongs to LGBT( Lesbian, Gay,
Bisexual and Transgender) community or we suspect that
he/she might be, do we think these people deserved to be
prosecuted, condemned and imprisoned?
b) Are alternate penetrations against the carnal law?
 If you look at the French law, Napoleon decriminalized
homosexuality in 1810. There is the issue of privacy to think
about and consider,”.
109

Ken saro-wiwa’s trial
 Kenule "Ken" Beeson Saro Wiwa (10 October 1941 – 10
November 1995) was a Nigerian author, television producer,
environmental activist, and winner of the Right Livelihood
Award and the Goldman Environmental Prize.
 Saro-Wiwa was a member of the Ogoni people.
 Ogoni is the name of a region in the Niger Delta of southern
Nigeria as well as the name of the ethnic group that lives in
that region.
 Which has been targeted for crude oil extraction by Shell
since the 1950s and which has suffered extreme and
unremediated environmental damage from decades of
indiscriminate petroleum waste dumping.
110

Impact of oil extraction by Shell
 For the Ogoni and the people of Nigeria, oil and oil
companies have brought poverty, environmental
devastation and widespread, severe human rights
abuses.
 Ogoni is home to several environmental treasures,
including the third-largest mangrove forest in the world
and one of the largest surviving rainforests in Nigeria.
 Oil drilling by Shell and other oil companies has had a
devastating impact on the region’s environment.
 Oil spills, gas flaring and deforestation have stripped the
land of its environmental resources, destroying the
subsistence farming- and fishing-based economy of the
Ogoni.
111

Background
 The Movement for the Survival of the Ogoni People
(MOSOP) is a human rights group founded in 1990 that is
committed to using nonviolence to stop the repression and
exploitation of the Ogoni and their resources by Shell and the
Nigerian government.
 Ken Saro-Wiwa, founding member and president of MOSOP
brought worldwide attention to the human rights violations
committed against the Ogoni through international
campaigning and his poignant writing.
 He was nominated for a Nobel Prize and awarded the Right
Livelihood Award and the Goldman Prize for his
environmental and human rights activism.
112

Unfair trial
 The tribunal denied the Ogoni Nine access to counsel, a fair
trial, and the opportunity to appeal the decision.
 During the course of the trial they were tortured and
mistreated, as were their relatives.
 The Ogoni Nine were convicted and were executed by
hanging on November 10, 1995.
 Plaintiffs in this case include family members of Ken Saro-
Wiwa, John Kpuinen, Dr. Barinem Kiobel, Saturday Doobee,
Daniel Gbokoo and Felix Nuate.
113

How is Shell involved?
 Shell was involved in the development of the strategy that
resulted in the unlawful execution of the Ogoni Nine.
 Shell told the Nigerian regime they needed to deal with Ken
Saro-Wiwa and MOSOP.
 Shell monitored Ken Saro-Wiwa, and closely followed the
tribunal and his detention.
 Prior to the trial, Shell Nigeria told its parent companies that
Saro-Wiwa would be convicted and told witnesses that Saro-
Wiwa was never going free.
 Shell held meetings with the Nigerian regime to discuss the
tribunal, including with the military president Sani Abacha
himself.
114

False Witnesses
 Shell’s lawyer attended the trial, which, in Nigeria,
is a privilege afforded only to interested parties.
 Brian Anderson, the Managing Director of Shell’s
Nigerian subsidiary, met with Owens Wiwa, Saro-
Wiwa’s brother and offered to trade Saro-Wiwa’s
freedom for an end to the protests against the
company.
 At least two witnesses who testified that Saro-Wiwa
was involved in the murders of the Ogoni elders
later recanted, stating that they had been bribed with
money and offers of jobs with Shell to give false
testimony – in the presence of Shell’s lawyer.
115

Execution of ken
 In 1994, Ken Saro-Wiwa and other Ogoni leaders were prevented
by the military from attending a gathering; at that very gathering,
four Ogoni chiefs were killed.
 The military governor promptly announced that Ken Saro-Wiwa
caused the deaths, and he and other leaders were taken into
custody.
 Despite the lack of any connection between MOSOP and the
deaths, the military used the deaths as a pretext to conduct raids
on 60 towns in Ogoni and to detain and beat several hundred men
suspected of involvement with MOSOP.
 They were executed after being convicted by a military tribunal
over the 1994 murder of four local leaders. The activists' deaths
sparked a storm of international protest.
116

Compensation for death?!
 On 10 November 1995, Saro-Wiwa and eight other
leaders of the Ogoni nine were killed by hanging at the
hands of military personnel. According to most accounts,
Saro-Wiwa was the last to be hanged.
 Family members, along with other residents of the Ogoni
region involved in the protests, sued Royal Dutch Petroleum
Company, Shell Transport and Trading, and a company official
and Nigerian affiliate.
 Alleging that they acted in concert with the Nigerian
government’s conduct, including torture, cruel inhuman and
degrading treatment, summary execution, arbitrary arrest and
detention, and crimes against humanity.
 The case, brought thirteen years ago in federal district court in
New York, settled for $15.5 million on June 8, 2009.
117

THANK YOU
FOR PATIENT HEARING
ACKNOWLEDGMENT:
Ms. MANASA . A
2011-2014 Batch,
Rajiv Gandhi School Of Intellectual Property Law,
IIT Kharagpur.
118

Right to fair trial

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