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general defences in a criminal case

(Querist) 22 August 2009 This query is : Resolved 
sir,
this is question regarding defences , generally about a criminal case. hence, i, myself know that this is a vague question.still , if any body, tries to explain, it elaborately, WITH ONE /TWO RULINGS OF HC/SC, i would be obliged to you all sirs.
1.delay in loadging a complaint before a police officer, is how far fatal to prosecution ?is there any material things to be noted by a defence lawyer, regarding, this FIS {COMPLAINT}.
2.is the delay of reaching FIR in the court , how far fatal ?
3. what is the relavancy of SCENE MAHASSAR in a criminal case?
usually a defence lawyer says NO CROSS to a scene mahassar witness . is any thing should be asked to him ?
4. when the both seizure mahassar witnesses turn hostile, still conviction can be sustained ?
5. what should be asked to an investigation officer ?
SALILKUMAR.P
ADVOCATE
THALASSERY-670101
09447536929
A V Vishal (Expert) 22 August 2009
1.delay in loadging a complaint before a police officer, is how far fatal to prosecution ?is there any material things to be noted by a defence lawyer, regarding, this FIS {COMPLAINT}.
2.is the delay of reaching FIR in the court , how far fatal ?

Ans. WHAT IF WE DELAY IN LODGING F.I.R. ?

The longer the delay, the stronger the suspicion. That the case is false wholly or in material particulars, so the delay should satisfactorily be explained.

(1) Care should always be taken that the names of witnesses are mentioned in F.I.R. if the names of P.Ws do not appear in it and they are examined later on, the presumption is that they were not present at the spot and have been procured later on.

(2) Care should be taken that all the material facts are mentioned in FIR(as much available at that time).

(3) Names of the accused persons should occur in F.I,R. and their parts also. (If information is available at that time).

(4) It is not necessary to put up or cite all the P.Ws. in court.

POSSIBLE REASONS OF DELAY ?

Note: Reasons of the delay on the part of complainant is mentioned as "DOC". Reasons of the delay on the part of police/ is mentioned as "DOP".

1. Physical condition of the informer (DOC).

2. Psychological condition of the informer (DOC).

3. Natural calamities (Both).

4. Distance of place of occurance (Both).

5. Ignorance of law of informer.(DOC).

6. Late detection of commission of crime (DOC).

7. Due to threat, promise and undlue influence (DOC).

8. Economic & social and undue influence (DOC).

9. Dispute over the jurisdiction of Police Station (DOP).

10. Uncertainity of place of occurrence due to continuous offence (DOP).

11. Shortage of staff (DOP).

12. Unavoidable departmental formalities (including delay due to opinion of experts ) (DOP).

Reasons of delay should be explained in the FIR.

3. what is the relavancy of SCENE MAHASSAR in a criminal case?

Ans. It is a description of facts and state of things which an investigating officer observes in a scene of crime. It should be prepared in the presence of two independent and intelligent witnesses preferably reside nearby. Statements should not be written in the mahassar except in mahassars prepared under section 27 of Indian Evidence Act. The witnesses should sign the mahassar. The mahassar enables the court to obtain an idea of the scene of occurrence of a crime.

4. when the both seizure mahassar witnesses turn hostile, still conviction can be sustained ?
5. what should be asked to an investigation officer ?

The above 2 points are connected directly with the facts of the case and the kind of evidence.
PALNITKAR V.V. (Expert) 22 August 2009
1. Delay in FIR is not always fatal. If delay is properly explained it is never fatal. But the unexplained delay may create doubt about the veracity of the FIR and its contents. It depends on the circumstances of a case as to whether the delay should be treated as significant or should be ignored.

2.Delay in reaching the FIR to the court also creates doubt, in certain circumstances, about the veracity of the contents. But it is not always fatal.

3.Scene Mahassar, I believe, means panchanama of Scene of offence or may be map of the place. It assumes importance in certain cases e.g. accident case or murder case. Especially when you can find some evidence relating to an offence. No need to ask anything in cross if the scene is irrelevant.

4. Depends on what is seized and its evidential value.

5. Normally, contradictions and omissions are got proved from IO. But sometimes his evidence assumes importance especially in the case of seizures, discoveries etc.


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