Friday, August 6, 2010

Media - Be educative and not sensational

Discussion with Shahab Nayyer:

TimesOfIndia article No conviction for mere demand of dowry: Supreme Courtis flatly wrong in the title. The judgment is here - http://indiankanoon.org/doc/1330427/

SC has convicted husband for "dowry death" (Section 304B of IPC) and said that there is no solid evidence of harassment from fathe...r/mother-in-law to convict under section 304B or section 498A. You need evidence of harassment before convicting under those sections.
For mere demand of dowry, there is section 4 in the Dowry Prohibition act http://indiankanoon.org/doc/1023340/ for which maximum punishment is imprisonment up to 6 months. That is not the same as life term imprisonment under Section 304B. So the prosecution need to move another petition for Section 4 of DPA which they have not done earlier.

SHAHAB NAYYER: Had my doubts about the TOI title too.. They are big on sensationalism. Thanks for clearing that.

I also read through the whole judgment and the relevant sections of law but I think judge was very lenient. He even reduced the sentence of th...e husband to 10 yrs.
Based on the info in judgment I don't think there was very strong evidence against anyone. Most of the evidence was just testimonies, no forensic or any sort of corroborative evidence specifically pinning down the accused. Given the poor state of police and investigative agencies, I am not sure we will see that day any time soon though. Due to the sensitive nature of relationship people tend to keep things to them to the extent possible, so testimonies are also generally from close relative who may not be independent.

The only difference in evidence seems to be in the nuances of how the witnesses uttered their testimonies for the three parties. For In-laws it was just harassment but for the husband PW-4 had given an example also "taunt her that she has come from a hungry house". To me this is simply a case of the witness not knowing the nuances of law and adding the right keyword.

The other reason the judge cites is judicial precedent that stronger evidence is needed for in-laws than husband. Judges better know how to use this but with dowry still being a social menace; personally I would feel better if these things are used for giving lesser punishment than for letting them totally free.

Is there anything in the law that stopped the judge for punishing in-laws under “section 4 in the Dowry Prohibition act “without the prosecution specifically asking for it? There may very well be some technicality. Otherwise it seems that prosecution was aiming for stricter punishment; the judge wasn’t convinced and let them totally free.

FYI: I have seen at some place a slightly different version of section 4 in the Dowry Prohibition act which states the punishment as “shall not be less than six months but which may extend to two years and with fine which may extend to ten thousand rupees”. Not sure what is the source of this discrepancy.
http://wcd.nic.in/dowryprohibitionact.htm

SUSHANT SINHA: Under section 304B, punishment ranges from 7 yrs to life imprisonment. I do not know how they decide what number in between. So that is something that needs to be looked at. An amendment was made to CrPC that has a presumption of guilt in c...ase of dowry death. It only needs to have certain conditions and then the death as sufficient for conviction, So the prosecution need not demonstrate the evidence "beyond reasonable doubt" as required in a murder.

I think the judge can take "suo moto" cognizance of certain issues. But I rarely see judges passing order on charges that are not levelled and they ask to file a separate case.

Acts on IK are a copy of what law ministry provides on indiacode. However, they have not added the amendments in last 10 yrs to the acts. So the source of discrepancy most likeyly is the staleness of the DPA on IK.

SHAHAB NAYYER: Do you think many people file new cases in examples like this and is this adding to the delay in any significant way ?
about an hour ago · LikeUnlike ·

SUSHANT SINHA: Criminal case is not prosecuted by individuals. It is always "State of Gujarat" or "State of India" depending on the nature of the crime. A lot of factors add to the delay. My feeling is that our high courts and supreme court review almost every decision of the lower court. And that adds up to the pile up of cases in these courts. If you see, SC in US only reviews 1-2% of the federal court decisions. In India this rate is very high.

SUSHANT SINHA: An interesting article by Nick Robinson on Frontline:

http://www.frontlineonnet.com/fl2601/stories/20090116260108100.htm

And his blog post:
...http://lawandotherthings.blogspot.com/2009/01/changing-role-of-supreme-court-response.html
See More

SUSHANT SINHA: On why SC in India should be accepting more cases:
http://lawandotherthings.blogspot.com/2009/01/robinson-reddy-exchange-on-supreme.html

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