Sunday 11 September 2022

Questions and answers on law (Part 53)

 Q 1 :- What is Dying declaration?

Ans:- A dying declaration is a statement made by a dying person as to cause of his death or as to any of the circumstances of the transaction which resulted in his death when the cause of his death is in question.

Q 2 :- What are conditions for conviction on circumstantial evidence?

Ans:- A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. 
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Leading caselaw:  Sharad Birdhichand Sarda Vs.  State of Maharashtra

Q 3 :- One person make derogatory remark against another person and that person commits suicide. Whether offence of abetment of suicide is attracted or not?

Ans:-  In terms of Section 107, it must prima facie appear to hold that the person named in the suicide note to be responsible for commission of suicide has abetted in the act. The act for conduct of the accused, even if there may be any, however, insulting and abusive those may be, will not by themselves suffice to constitute abetment of commission of suicide, unless those are reasonably capable of suggesting that the accused intended by such acts consequence of suicide.

Q 4 :- What is robbery?

Ans:- 390 of IPC - Robbery.—In all robbery there is either theft or extortion. When theft is robbery.—Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.—Extortion is “robbery” if the offend­er, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

Q 5 :- When decree for divorce by mutual consent can be passed? If both are residing separate for more than two years?

Ans:- 13B of Hindu Marriage Act- Divorce by mutual consent. 

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

Q 6 :- In which circumstances cooling off period can be waived?

Ans: Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period Under Section 13B(2), it can do so after considering the following:

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year Under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

Civil Appeal No. 11158 of 2017 (Arising out of Special Leave Petition (Civil) No. 20184 of 2017)

Decided On: 12.09.2017

 Amardeep Singh Vs. Harveen Kaur

Hon'ble Judges/Coram:
A.K. Goel and U.U. Lalit, JJ.
Civil appeal No: 11158/2017.
Citation:(2017) 8 SCC 746,AIR 2017 SC 4417.

Q 7 :- Whether revision can be dismissed for default?

Ans:- Criminal revision cannot  be dismissed in default.

Q 8 :- What is meant by garnishee?

Ans:  The term garnishee refers to the debtor of a judgment debtor. A garnishee is thus a person who is liable to pay some money to the judgment debtor. By a garnishee order, a court can call upon the garnishee, not to pay such money to judgment debtor but instead to pay the same to judgment creditor or decree holder,who is sometimes referred to as the garnishor.

Q 9 :- What is object of S 313 of CRPC?

Ans:- Section 313 Cr.P.C. itself declares its object in explicit language that it is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. At the same time it should be borne in mind that the provision is not intended to nail the accused to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem.

Q 10 :- Whether oath can be given to accused while recording his statement U/S 313 of CRPC?

Ans: As per S 313 of CRPC no oath should be administered to accused while recording his statement U/S 313 of CRPC.

Q 11:- Whether signature of accused is taken on statement U/S 313 of CRPC?

Ans:- Yes.

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