Khairlanji: Court Proceeding on 23rd July’08


The court assembles at 11.15am, the attendant calls out the names of Adv. Khan, Adv. Jaiswal, Adv. Khandewale, and Adv. Bedarkar but nobody appears.At 12 noon , first Adv. Khan appears in the court room followed by adv. Khandewale ,Adv. Bedarkar, and Adv. Lakhanikar.
(Adv.Khan rises to put his arguements)
Adv. Khan :- Sir, kindly refer to PW 22, Premlal Istari Walke. He stated.
“On 29th Sept.06 at 6.30 pm I heard the shouts emanating from Bhaiyyalal Bhotmange’s house as “Mara-Mara” (beat beat).  I heard such shouted from the side of house of Bhaiyalal Bhotmange.  At that time I was busy in preparing for pooja of Durga Devi.  Those were shouts of Vishvanath Dhande and Sakru  Binjewar.  I  became frightened and did not come out of my house.  After some time I heard the say “where are boys”.   After some time there was peace when I came out of my house  and came upto my gate.  Then I saw one bullock cart was passing through  the road which is situated in front of house of Bhaiyalal. That bullock cart was proceeding towards Kandri from the side of Dhusala road.    There were some dead-bodies in that bullock cart.  Jagdish Mandlekar was riding that bullock cart.  Vishvanath Dhande, Shatrughana Dhande, Ramu Dhande, Sakru Binjewar and some other persons were following that bullock cart.  Those persons were possessing sticks in their hands.  The bullocks of that cart were reddish in colour.” This he has stated in his deposition before this court .
Now  U/S 164 he says ,”then I saw one bullock cart coming over into  which four dead bodies were laid . Jagdish Mandlekar was riding that bullock cart.  Vishvanath Dhande, Shatrughana Dhande, Ramu Dhande, Sakru Binjewar and some other persons were following that bullock cart.”
This witness had seen the carrying of the dead bodies.
Further he says  in his statement before this court ,”After some time police vehicle came there.  As I was frightened I did not tell anything to police.  One policeman asked me, where were  family members of Bhaiyalal Bhotmange . I told ignorance about them.  My statement was recorded by Judicial Magistrate by Mohadi Court. On that day Mahadeo Zanzad went to Mohadi Court alongwith me and his statement was also recorded by Judicial Magistrate on that day.
Sir, he gave same statements everywhere now I will turn this courts attention to the cross examination  of the said witness about timing of killings.There are two points in statements recorded U/S 161 on 3 octomber 2006. Kindly refer to the bottom line. “ Portion mark “A” of my statement which shows the fact that on the night of incident  I returned  home by 8.00 p.m., is not correctly recorded. I did not tell police that I did not know anything about the incident.  Portion mark “B” of my statement which shows the above  fact ,  is not correctly recorded… I do not know who are CBI and CID.I gave  same statement to persons who made enquiry from me.  Same statement I gave to Judicial Magistrate.”
Portion marked  A ,B &C  were denied by the witness who emphasises that  he had given same statements to all . We have to analyse in normal as well as special circumstances . In normal circumstances, investigation officers record the statement s as it  is but as CBI we asked the witness to record the statements U/S 164 taking  into consideration the special circumstances. That’s why 164 was recorded.  He further says ,“It is true to say that due to that fear I told falsely to CID.”  Here no suggestion was given by the defence that accused did not put the bodies in bullock cart.Why this people carried the dead bodies , if those were the thieves who killed surekha? and then why bodies of the same were carried by the accused? There was no suggestion from defense to the witness that they were not present on the spot of the crime. Had he been the interested witness then he would have said that he saw everything including the murders.
Judge:- But why he did not see ?
Adv. Khan: – due to fear only. This person because he is senile did not see the incident unlike Mukesh, Suresh & Dinesh. He gave statement to police on 3 oct. 2006, in which he says that 30 to 40 people arrested due to which he was under the grief of fear of himself too being arrested. Were his statements fabricated by the police? This is suspected because portion A,B&C were denied by witness. Witness said that due to fear he told falsely to CID .The reason of this was given not during examination in chief but in his cross examination.They (the defense) brought this out  and not us.The witness reavels three facts-
1) He did not state the A,B,C Portions
2) Police did not readover the statement to him
3) He gave same statements  to all authorities .
 Then why did he give factual statements to CBI? Because CBI recorded only the statements what was said by the witness. We are not judicial authority. So his statements were recorded U/S 164. But why 164? Because when investigation officer feels that when there is something substantial in what the witness says, then he goes on to recod the statement U/S 164 because there is sanctity attached to 164 so it was done . Statesment U/S 161 can be discarded all- together.

Judge:- But 161 can not be use for corroboration but for contradiction.

Adv. Khan :- yes sir, but witness given explanation for contradiction . Under 1976 amendment the statements U/S 161 can be used for contradiction. I’m not relying on 161. We are the premier investigation authority. So when the people came to know that such false recordings were going on and the investigations are not proper, they asked for transferring the investigations into our hands . Why the witness was not asked as too why he stated falsely to police and CID? The portion of  Jagdish etc. following the bullock card, bullocks being red in colour were not challenged by the defense.

Judge:- (to defense) what to you have to say on this ?

Adv. Khandewale :- we will reply in detail when our term comes , the answers are themselves in paras
Adv. Khan :- Now I will turn to Rashtrapal Narnaware’s statement, he has a point to make that Surekha called him and he had stated to have seen the injuries on the dead bodies of victims .
Rashtrapal Narnaware says ,” On 29.9.2006, at about 5.30, p.m.  I received  phone call from Surekha  Bhotmange  on my mobile phone.  She told me to come to Khairlanji.  I asked her as to what happened.  She told me that 12 persons who were arrested in the case of Sidharth Gajbhiye were released on bail and they returned to village.  She also told me that those persons with sticks boarded a tractor to go to Kandri to beat Sidharth Gajbhiye and Rajan Gajbhiye.  She told me that because of this she and her family members are in danger  of  life.  Surekha Bhotmange told me to come to Khairlanji.  I told her that as it is evening he is unable to come there.  I told her to come to our village.  She told me that she has cattle and therefore she cannot come there. I told her to complain to Andhalgaon Police Station.  She told me that she cannot go to Andhalgaon Police Station as about 2/3 days ago Dy. Sarpanch and PSO Bharne  threatened her by coming to her house.  She told me that they threatened her by saying that she was giving statement against villagers and if anything happen then they will not be responsible as support of MLAs and MPs are behind them.  She told me that they threatened not to give statement against her villager.  I asked her as to what to do then.  She told me that those persons went to Kandri and if they attack her then she would make phone to me.  By saying so she put off the phone. “
What this conversation signifies that she was fearful at that time. Here the lady says that P.S.O. Bharane and Deputy Sarpanch threatened  as P.S.O should have been responsible for safty of people but instead he says that he will not be responsible if any untoward happens to them, Surekha being a Dalit ,helpless ,frail lady was threatened the supreme court gives the guidelines that witnesses are the eyes of the court they should be given seat to sit , should be given drinking water to drink. But here the P.S.O. threatens the lady not to give the testimony. This should be read in consonance with utterances of the accused who gave castiest abuses. The defense did not contradict the conversation but went on to the character assassination of the helpless Dalit lady which is so simple in India that anybody jumps on it. Nobody would have raised fingers at Bhayyalal Bhotmange  had he drank and gambled with siddharth but since Surekha is a Dalit lady the defence went on to malign her image But they did not touch upon the evidence of conversation between Surekha & Rashtrapal.
In para 20 of the cross examination, the defense gives the suggestion to implicate the accused. Where he had given the names of accused ?So even the suggestion was the wrong. The portion recorded as  to the 12 persons had been released on bail and they were going to search for Siddharth & Rajan Gajbhiye. I will bring on record  who those 12 persons . Further, the witness says,  
“I told the Magistrate and CBI that those 12 persons boarded a tractor to go to Kandri to beat Sidharth Gajbhiye and Rajan Gajbhiye. I cannot assign any reason why the fact that
Those 12 persons who were released on bail, those persons boarded a tractor, they were proceeding to Kandri to beat,  are not mentioned in my statement before Magistrate and  CBI”.
But the same witness in his statements says that those 12 persons who were released on bail went to beat Siddharth & Rajan Gajbhiye . What other inference can be drawn from the statements? The witness said that he  could not assign any reason , why this statement was not recorded by judicial magistrate U/S 164 . It is as usual, only in narrative form and not interrogative . The witness goes on telling  whatever he has to say. But this can not be termed as either contradiction or omission .
(The Court adjourns for lunch break at 2.00 pm. …)

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