Jural Quorate SSTTUUDDEENNTT--LLAAWW JJOOUURRNNAALL Damodaram Sanjivayya National Law University, Visakhapatnam JURAL QUORATE SEPTEMBER 2016 Jural Quorate Student-Law Journal | Issue I September 2016 2 JURAL QUORATE SEPTEMBER 2016 Copyright©2016.AllrightsreservedwithJuralQuorate. Published Annualy by Damodaram Sanivayya National Law University, Visakhapatnam. Subscriptionsavailable at www.dsnlu.ac.in --Disclaimer— No part of this publication may be reproduced or copied in any form by any means without prior written permission of Editor-in-chief of the Jural Quorate. Jural Quorate holds the copyright to all articles contributed to this publication. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team or Board of Patrons for Jural Quorate. Though all efforts are made to ensure the accuracy and correctness of the information published, the Editorial Team or the Board of Patrons for Jural Quorate are not responsible for any errors caused due to oversight or otherwise. --Permissions-- For the purpose of reprinting the material published in Jural Quorate, contact the Executive Editor of the Jural Quorate. Executive Editor, Ms. Bushra Qasmi, Jural Quorate Damodaram Sanjivaaya National Law University, MVP Sector-11, Visakhapatnam, A.P. --Annual Subscription(Rates)— Indian Subscribers International Subscribers Student INR200 INR400 Others INR300 INR500 3 JURAL QUORATE SEPTEMBER 2016 EDITORIAL BOARD Patron-In-Chief Hon’ble Justice Ramesh Ranganathan Chief Justice, High Court of Judicature (I/C), Andhra Pradesh Chancellor, Damodaram Sanjivayya National Law University, Visakhapatnam Patron Board Padma Sri P. P. Rao Senior Advocate, Supreme Court of India, New Delhi Milind Sathe Chetan Kapadia Editor in Chief Prof. Dr. V. Kesava Rao Vice-Chancellor (I/C) Damodaram Sanjivayya National Law University, Visakhapatnam Executive Editor Ms. Bushra Quasmi Assistant Professor Damodaram Sanjivayya National Law University, Visakhapatnam Managing Editors Ms. Gunjan Saxena Convener, The Society for Law & Technology Damodaram Sanjivayya National Law University, Visakhapatnam Associate Editors Mr. Sangkrito Ray C. Ms. Anshika Shukla Ms. Navy Jain IVth Year IIIrd Year IInd Year Damodaram Sanjivayya National Law University, Visakhapatnam 4 JURAL QUORATE SEPTEMBER 2016 ADVISORY BOARD Prof. (Dr.) Jane K. Winn Professor of Law, University of Washington School of Law Mr. Jay Parikh Partner, Shardul Amarchand Mangaldas Ms. Geeta Luthra Senior Advocate, Supreme Court of India Mr. Manas Kumar Chaudhari Partner, Khaitan & Co. Prof. Shamnad Basheer Legal Scholar and Academician 5 JURAL QUORATE SEPTEMBER 2016 ACKNOWLEDGEMENT Efforts from many quarters have gone into the successful publication of this Issue of Jural Quorate. We would like to express a deep sense of gratitude towards our peers who thoroughly validated all articles sent to them for reviews. We would also like to thank our contributors for contributing extraordinary submissions to the issue which stood on par on the rigorous scrutiny. We would like to thank all members of the DSNLU family who extended their unending co-operation. We would also love to thank our wonderful friends at Microsoft for providing the much needed technical support and also our Printing Partners for living up to our taxing expectations. 6 JURAL QUORATE SEPTEMBER 2016 CONTENTS I EVIDENTIARY VALUE OF LAST SEEN TOGETHER WITH EVIDENCE Arvind Kumar & Himanshu Mene, Damodaram Sanjiavyya National Law School, Visakhapatnam II CYBER SQUATTING & DOMAIN DISPUTE UNDER TRADEMARK LAW (THE NAME GAME) Gunjan Jain, Damodaram Sanjivayya National Law School, Visakhapatnam III USE OF POLYGRAPH TEST IN CRIMINAL INVESTIGATION Esha Shrotiya & Vidula Bhatt, National Law Institute University, Bhopal IV DECIPHERING THE INTERMEDIARY LIABILITY & CRIMINALISTICS : A CYBER LAW APPROACH Biswa Kalyan Dash , West Bengal National University of Juridical Science , Kolkata V ARTICLE 19(1)(A) VIS-À-VIS SECTION 66 A: NEXUS CHALLENGED Yophika Grace Thabah, Symbiosis Law School, Noida IV WHAT IF A ROBOT COMMITS A MURDER?: AN ANALYTICAL STUDY ON CRIMINAL LIABILITY OF ARTIFICIALLY INTELLEGENT BEINGS Shubham Singh & Pallavi Singh, Amity Law School, Noida 7 JURAL QUORATE SEPTEMBER 2016 VII CELEBRITY RIGHTS: AN INTELLECTUAL PROPERTY RIGHTS APPROACH Niharika Behl, University of Petroleum and Energy Studies, Dehradun VIII RIGHTS OF AN AUTHOR : ARE THEY REALLY PROTECTED Raghuveer Singh Meena, National Law School Institute University, Bangalore IX DEVELOPMENT OF FORENSIC SCIENCE & CRIMINAL PROSECUTION INDIA Meenal Choudhry, College of Law & Governence, Mody University, Rajasthan X SPACE LAW: A BRAVE NEW WORLD Nikhil Dubey, ILS Law College Pune XI THE VIRUS STUCKS NET : AN INDIAN PERSPECTIVE Annie Mampilly, National University of Advanced Legal Studies, Kochi XII SOFTWARE PATENTS : HISTORY, APPLICABILITY & VALIDITY Nisruta Bohidar & Pallavi Panda, School Of Law KIIT University, Bhubaneshwar XIII HAPLESS CRIME VICTIMS : NEED FOR PROPER IMPLEMENTATION OF LAWS Ankitesh Ojha, Hidayatulla National Law University, Raipur 8 JURAL QUORATE SEPTEMBER 2016 XIV PROTECTION OF TRADITIONAL KNOWLEDGE Palak Nenwani & Shreya Jain, Amity Law School, New Delhi 9 JURAL QUORATE SEPTEMBER 2016 EVIDENTIARY VALUE OF LAST SEEN TOGETHER EVIDENCE Arvind Kumar & Himanshu Mene ABSTRACT “In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents.” – Justice Krishna Iyer One of the fundamental principles of criminal jurisprudence is that an accused is presumed to be innocent till he is proved to be guilty. Article 11(1) of the Universal Declaration of Human Rights, 1948 provides that everyone charged with a penal offence had the right to be presumed innocent until proved guilty according to law. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. India is a signatory to the Covenant. Right to fair trial and presumption of innocence, are the twin essentials of administration of criminal justice. Once if a person is held to be not guilty of a criminal charge, he enjoys the benefits of such presumption of innocence which could be interfered with by the Courts only for compelling reasons and not merely because another view was possible on appreciation of evidence.’ The burden of proof in a criminal case lies on the State. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The policy has been that let thousand criminals be acquitted one innocent must not be punished. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. However, with the development of ‘Last seen together,’ principle, the investigation system and the courts have been a little bit relieved of the burden of proof. When the principle could be invoked, the burden of proof would be shifted to the accused to explain any intervening facts after the last seen together with the victim of any criminal offence. In this paper an attempt is made to analyse the principle inter alia with the help of the latest case law. INTRODUCTION The theory of ‘last seen together’ is considered to be the one where two persons are ‘seen together’ alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption as to the person alive being the author of death of the other can be drawn. Time gap B.A. LL.B. (Hons.), Damodaram Sanjivayya National Law University, Visakhapatnam. 10 JURAL QUORATE SEPTEMBER 2016 should be such as to rule out possibility of somebody else committing the crime. Last seen together principle is one of the latest principles which are taken into consideration in establishing the guilt of the accused. In the absence of eye-witnesses and tangible evidence, it is the last resort of the prosecution in a murder case – the person last seen with the victim is presumed to be the murderer, shifting the onus onto the accused to prove otherwise or come up with an alibi.1The foundation of the theory is based on principles of probability and cause and connection. Where a fact has occurred with a series of acts, preceding or accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or accompanying acts, unless exists a fact which breaks the chain upon which the inference depends. EVIDENTIARY VALUE2 In the case where the witnesses are independent, the non-examination of the same affects the credibility of other witnesses. Evidence of an independent witness cannot be rejected merely on the ground that he was once convicted in the past. The evidence of an independent witness cannot be discarded by merely branding it as that of a coached or tutored witness. Where the testimony of the witness is consistent, straight forward and cogent in all respects and there is no motive for false implication, then their testimony cannot be ignored on minor discrepancies. It is neither rule of law or for prudence that if nothing is found against the witness to show that they were interested or inimically disposed towards the complainant then their evidence