frank dcruz wrote: [A] Times have changed now its "Guilty untill proven Innoncent".
[B] FYI if you have sex with "something" as you put it ( Including Test Tubes or bananas) it is not considered rape and the medical report confirmed that it was rape if not the would have said that she was sexually active. Dear Mr. D'Cruz, Unless somebody confesses - I do not know HOW the "medical team" will prove penis v banana in court without 'hearsay evidence' or DNA. I will leave it to them. I will concentrate on # [A] of yours above. Unless there is something really new ...this is my last contribution on this topic. I believe that I have written quite a bit about the Goa Children's Act. This particular case is NOT (per se) the real focus of my interest. My real focus is on the "legality" or otherwise of the Act itself. (Please see reference [1] infra) It is my understanding that any attempt to place the Burden of Proof on the accused will be 'ultra vires' of the Indian Constitution. (Please see reference [2] infra) It will additionally fall foul of the Indian Evidence Act (Please see reference [3] infra) So, Times may have changed .....the Constitution has not - with regard to the matter of "Burden of Proof". It is my understanding that (a few years ago) a "senior counsel" who came down from Delhi to look at the Goa Children's Act, left "disappointed". So, ALL this drama ....and eventually after the child is subjected to multiple appeals and hearings and emotional trauma - the case can be thrown out because a: There is NO firm evidence (yet) linking the accused to the victim. b: The Goa Act is flawed. I can understand the $$$$ value of such a prolonged cases to lawyers, but is this what we want? Is it not better for the young IF facilities are provided for Rapid Assessment at specially designated centres - which have DNA facilities. I can safely assure you that NO "rich Goan daddy or uncle" can get anybody off IF the DNA is positive....unless the prosecution goofs up somewhere else. As one who deals (also) with such cases more than regularly, I believe that the Goa Children's Act and the present drama are both counter-productive to the LONG TERM interests of children who are victims of such crimes. They are also counter-productive to the lives of those accused falsely and destroyed in the process. jc reference [1] http://www.colaco.net/1/gca2003.htm Article written Sept 13, 2005 reference [2] Articles 20 (3) and 21 of the Constitution of India reference: http://lawcommissionofindia.nic.in reference [3] Indian Evidence Act CHAPTER VII : OF THE BURDEN OF PROOF 101. Burden of proof Whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that he burden of proof lies on that person.
