Khairlanji: Court Proceedings on 24th July ’08

25Aug08

The court assembles at 11:30 A.M.Adv.Khan rises to continue his arguments before the court .

Adv.Khan : Sir, I will now put forth my aguemnts regarding the statements of Mahadev Zanzad . Entire evidence of him can be said out . But I will limit myself to what he said in his cross-examination and what he said in his chief examination can be said out later .On 4th day of his deposition , he lied and that goes in my favour .

He says in his deposition before this court ,
“I did not tell magistrate that after Surekha left out of her house from back side,  Prabhakar Mandalekar, Jagdish Mandalekar, Sakru Binjewar, Vishwanath Dhande, Shatrughana Dhande, Ramuji Dhande and  Purushottam Titirmare. stood around Surekha. I did not tell this fact to magistrate as I could not recollect this fact then.  I cannot assign any reason why  it is not mentioned  in my statement recorded by magistrate  about the fact   that some persons of the persons surrounded Surekha, were telling to beat and some were telling   to let her go.    I did not tell aforesaid fact to magistrate.  I cannot assign any reason why I did not  state so to the magistrate.  It is true to say that I did not remember  this fact and so  I did not tell this fact  to magistrate.  I do not remember whether I told such fact to CBI.   It did so happen that I did not remember this fact and so I did not tell CBI and so this fact is not mentioned in my statement recorded by CBI.”

Now, Please peruse the statement of him u/s 164 to the Judicial Magistrtate.(Adv.Khan reads out the Magisterial  statement)

The witness says that the accused did not beat Surekha but encircled them. How can it be said that they just encircled her, but did not beat her. In his Magisterial statement , he was saying that Surekha was beat  by the accused ; but later he was won over by the culprits.  Otherewise how  can a person , first after supporting  the prosecution, later said that he lied . Entire evidence of him can not be discarded ; but the evidence in tune with the prosecution  can be  accepted.

Now, I will turn the court’s attention to the evidence of Suresh Khandate.He says in his deposition before this court,

“  On 29.9.2006 I was present in my house.  I was present in the house as I was  suffering from illness of Chikan Guniya. On that day at about 6 to 6.30 p.m. I heard commotion and so I came out of my house.  I then came on the road i.e. on the  road between my house and house of Bhotmange. I then saw Jagdish Mandlekar,  Vishwanath Dhande, Shishupal Dhande, Shatrughna Dhande, Ramu Dhande, Sakru Binjewar, Gopal Bijewar and  Prabhakar Mandlekar were standing in front of the house of Bhaiyalal Bhotmange.  Shatrughan Dhande and Shishupoal Dhande were holding bicycle chains in their h holding bicycle chains in their hands.  Jagdish Mandlekar, Vishvanath Dhande, Ramu Dhande and Sakru Bijewar were holding sticks in their hands. They were giving abuses to Surekha Bhotmange and asking her to come outside her house.  Jagdish Mandlekar and Vishvanath Dhande were telling Surekha Bhotmange that she  made to complaint against them  and told their  names  to police station and that these  Mahar caste people should be ousted from the village.  Then Surekha  Bhotmange came out of her house with lighted  fire-wood.  Then  Surekha Bhotmange saw them.  Then she  set fire to another hut of her at its corner with that lighted fire-wood.  Then all those above mentioned accused  ran after Surekha Bhotmange.    Surekha ran towards back side of her house towards a drain.  Accused Shatrughna and Vishwanath   went after her.   Jagdish and other accused went after her from outside  her house and from back side of her house.  Accused Jagdish then caught hair of Surekha and dipped her inside the drain water.  Other accused took  out her from that drain.  Thereafter, some  accused  beat Surekha by bicycle chains and some accused  by sticks and then she died there.At that time I stood on a culvert over a drain which is situated in front of my house. After death of Surekha all the accused  were speaking as to where other members of her family and they be searched and they also be killed.  Sudhir came out of his house and stood on the road in front of his house.  Sudhir was wearing underwear at that time.  Then Sudhir ran towards Dhusala road. Thereafter, all the accused ran after him.  Then he was caught on the road in front of one house.  Thereafter, he was killed and brought to the deadbody of Surekha. Sudhir was beaten by all the accused  bicycle chains and by sticks.

Now, as far as this statement is concerned , it corroborates with the statements of what is said by Mukesh Pusam, Dinesh Dhande & Premalal Walke.Now , I will peruse the statement of Suresh in what was said in his cross-examination.

“I did not tell CBI that the place where Roshan was hiding near cow-dung pit, was not visible to me  from near  my house.  I could not see Roshan as house of Bhotmange come in the way.  I told CBI that Roshan ran towards bore-well, from the cattle shed of Ramdas Khandate.   It is true to say that cow-dung pit is at the back side of the house of Bhotmange, whereas the bore-well is towards  front side  i.e. towards Kandri road corner.  Portion mark  ‘A-1’ of statement recorded by the CBI which shows  the facts that Roshan was found at the cow shed which was a place owned by Ramdas Khandate, is correctly recorded.  Portion mark  ‘B-1’ of statement recorded by the CBI which shows  the facts that Roshan than ran away from there and those persons chased him and apprehended Roshan near hand-pump and then he was beaten to death there, is correctly recorded. Hon’ble Magistrate did not ask me and so I did not tell him the fact as mentioned in portions mark A-1 and B-1, as mentioned in my statement recorded by CBI.  I was not restricted by Magistrate to speak on one point and not to speak on another point.  Hon’ble Magistrate did not restrict me from telling about portions mark A-1 and B-1 as mentioned in the statement recorded by CBI.” I did not tell CBI that the place where Roshan was hiding near cow-dung pit, was not visible to me  from near  my house.  I could not see Roshan as house of Bhotmange come in the way.  I told CBI that Roshan ran towards bore-well, from the cattle shed of Ramdas Khandate.   It is true to say that cow-dung pit is at the back side of the house of Bhotmange, whereas the bore-well is towards  front side  i.e. towards Kandri road corner.  Portion mark  ‘A-1’ of statement recorded by the CBI which shows  the facts that Roshan was found at the cow shed which was a place owned by Ramdas Khandate, is correctly recorded.  Portion mark  ‘B-1’ of statement recorded by the CBI which shows  the facts that Roshan than ran away from there and those persons chased him and apprehended Roshan near hand-pump and then he was beaten to death there, is correctly recorded. Hon’ble Magistrate did not ask me and so I did not tell him the fact as mentioned in portions mark A-1 and B-1, as mentioned in my statement recorded by CBI.  I was not restricted by Magistrate to speak on one point and not to speak on another point.  Hon’ble Magistrate did not restrict me from telling about portions mark A-1 and B-1 as mentioned in the statement recorded by CBI. 

There is no further suggestion by the defence. Where is the denial of incidence ? They take the defence of darkness, distance & raining. But there is no suggestion that witness did not see the incidence . What is the case of the defence ? They say that he did not see the incidence because he was suffering from Chicken Gunya . Then how come the recovery of 4 dead bodies , dragging of dead bodies, carrying of those in bullock cart ? They could not contradict the statement of another witness, Premlal Walke. Further the witness says,

“ I cannot assign any reason as to why  it is not mentioned in my statements recorded by Hon’ble Magistrate as well as CBI as to the place  near boring from where shout of Priyanka emanated.  (Omission is regarding the place of shout.)    I told  CBI that accused Shatrughana and Shishupal gave blows to Prinyanka with  cycle chains, accused Jagdish, Vishwanath, Ramu and Sakru gave her blows with sticks,  accused Gopal and Prabhakar  gave her kicks and fists blows. I cannot assign any reason why this fact is not mentioned in my statement recorded by CBI.  I did not tell the aforesaid  facts to Hon’ble Magistrate.”

Here , no suggestion is given by the defene about Priyanka not shouting. Now , please turn your attention to statement of the witness in what he said in his examination in chief which is  recorded in the question and answer form.

“Q. Who killed Priyanka and by what means?

A.  Accused Shatrughna and Sisupal gave blows of cycle chain to her. Accused Jagdish, Vishwanath Ramu and Sakru gave blows of stick to her. Accused Gopal and Prabhakar gave her kick and fist blows.

Q. Who killed Surekha and by what means ?

A. Accused Shatrughna and Sisupal gave her blows by cycle chain. Accused Jagdish, Vishwanath, Ramu and Sakru gave blows of stick to her. Accused Gopal and Prabhakar gave her kick and fist blows.

Q. Who killed Sudhir and by what means ?

A.  Accused Shatrughna and Sisupal gave him blows by cycle chain. Accused Jagdish, Vishwanath, Ramu and Sakru gave blows of stick to him. Accused Gopal and Prabhakar gave him kick and fist blows.”

Which person did what ? This was not asked by anyone, so we asked it in examination in chief. So, new information came out.But this can not be said as improvement. Further in his cross examination , he says ,

I told Hon’ble Magistrate that Surekha ran towards drain.  I cannot assign any reason why this fact is not mentioned in my statement recorded by Hon’ble Magistrate”

Here the context of the incidence is important and not exact words. He said towards drain and not lake or river or canal. Where is the contradiction ? Some words here and there can not said to be contradiction. This crime is not static.It has lot of movements. The accused chased the victims , they murdered theem & then disposed of the bodies.Normal witness does not record the material facts like a cricket match which can be replayed many a times.Memory fades after passage of time. The simple village folks had not earlier seen such horror of crime. (Adv.Khan reads through the decision of Supreme Court with reference to shock and horror of crime in Krishnmurti Vs. State of Bihar 2002)

Now , about the mental disposition of the witness. When witness says that he studied upto 4th standard. His mental disposition is of consideration and appreciation.Normal man would not be able to see the crime of wilderness , he would be shocked and undergo horror.Suresh being asked the same incident again and again, it is immaterial if he says Surekha fell down in Cowdung pit and later canal.

About Atrocities Act- It is not disputed that Bhotmange is of Mahar Caste. But the defence put the  accusing fingers at Sub-Divisiona Magistrate (Reads through the statement of S.D.M.) Who knows about caste ? The S.D.M. , or the defence ? Even then the defence tried to question the certificate by the issuing authority.

Bhaiyyalal Bhotmage says in his statement –

“on 29/9/06, in the evening I was present in my house at Khairlanji. Incident took place at about 6:00 to 6:30 P.M.At that time myself , Surekha, Sudhir, Roshan and Priyanka were present at the house.She was wearing school uniform.Its lower part was blue in colour . On that day at about 6 to 6:30 P.M., villagers attacked our house. They were shouting that ‘Mahar Dhed people falsly implicated us in police case’”

My witness was subjected to severe humiliation because Bhaiyyal was of Mahar caste , so he was said to be evicted from the village.

Further he says, …. After seeing the mob I ran to Dhuasala. I ran to Dhusala as I was freightned by looking to the fury of mob. I then met police Patil Sidhhartha . I told him about the incident briefly that 50 to 60 persons attacked my house.Sidhhartha then made phone call to Andhalgaon Police by his mobile phone. Thereafter, at about 9 to 10 P.M. , I went to Andhalgaon Police station to lodge complaint . At that time , I was in frieghtned  condition and so I could not lodge complaint. ”

Kindly , take into consideration, the mentality of Bhaiyyalal  at night to approach the police station.

(At this the court is adjourned for lunch break which again re-assemble at 3:30 P.M.)

Adv.Khan rises to speak again.

Adv.Khan : Sir , the local police in the initial stages of the investigations, made blunders. Blood from spot where the bodies were recovered was not collected. It is not the people wanted investigations because it is a premier investigation agency. But as the people came to know that the investigations are not proper , they asked for it.

The C.I.D.too made some questionable investigations like Identity pared. Accused and the witnesses knew each other since they were co-villagers, so what was the need of such ID pared? The C.I.D.is the state’s police and its best strategy is to go for ID pared. 
The incident happened before the co villegers so there was no need of ID pared since

because of the threat the villagers said that they did not see the incident since they were out of their homes. In ID pared the eye contact with accused is established by the witnesses and the eminent threat is perceived by them. So the potential witnesses get frightened and they do not report the truth. Therefore ID pared should not have been the part of investigation, so what was important ? the local police should have imprinted the marks of footwear ,bloodstains of the dead bodies on the person of the accused and weapons of the accused . These are the evidence for proof of the crime. The witnesses were mortally scared because immediately after the crime they were threatened .So

the material evidence was most important which was missed  unfortunately by local police .
What was the basis of the crime ? Revenge. Surekha and Priyanka gave testimony in Siddharth assault case so they were murdered .But then why Sudhir and Roshan fell victims to it ? The moment Surekha died half the people should have lost their force but why they shouted, “Mahar lokanna gawabaher haklun lava” (banish the Mahar caste people out of the village) and why they shouted where were the other people from house? These are part of atrocity and show the crime done in furtherance of commen intention of revenge. They came from Mohadi court , assembled before grampanchayat ,made a plan and executed it .This shows commen object and intention.

In conspirancy direct evidence is not necessary but inference has to be drawn. They assembled ,proceeded with cycle chains and sticks which can not be called as peaceful assembly. With cycle chain and sticks ,the ingredient of culpable homisede  i.e. knowing or reasons to know that it would cause death of the person upon hitting it ,is proved . They carried the same and beat Priyanka, young girl ,Sudhir and Rosdhan the youthful  boys and Surekha,the caring mother of all.All of them had marks of injuries. 
Kindly consider that P.S.I. Bharne and Meshram had come into village.This was only too ascertain the veracity of telephonic report given by Siddharth Gajbhiye. Why could they not make out of the circumstances since there was complete ransack inside Bhotmange’s house ?

Judge:- Not Bharne but Baban Meshram went into village but returned back  when he the complete  peace in the village

Adv Khan:- But Bhaiyyalal saw the ransack but then he could not muster courage to go inside Police Station  and came back  . Later he went to Police station in the morning of 30 sept2006 and filed the complaint.

Now about police recovery (seizure).The police  asked the accused whether have any weapons of crime and accused produced to them sticks and the cycle chains.But why did the police not ask them whether such thin  sticks could have been used for beating and killing the victims ? The sticks were produced after being asked by the police officer to the accused.The following opinion can be drawn from this – 1) Chain and sticks produced  were not used in crime

2) The ocular evidence to infer whether those were used in the crime.

My case should be considered by three methods in this context

Case in entirety 2) by witnesses’ accounts 3) the circumstances-why the accused produces the weapons ?
According to post mortems report the cause of the death is known, charge is revealed by ocular evidence, photographic evidence which shows the nature of injuries

Adv:- Khandewale ,photographs showing marks of injuries makes no point

Adv. Khan:- Photographic evidence is before the court . It is to show the nature and extent of Injuries.

Sir kindly refers to Siddheshwar Bharne’s statement. Defense did not ask him about the cause of delay,. Why that question was put to only investigation officers of CBI.?We filed the charge sheet within 20 days. Where is  the delay ? What is important, the delay or the reliability and truthfulness of witnesses? Delay per se does not make any difference at all.

That’s all about the evidence I will only say  a few arguments about C.A. Reports tomorrow.

Judge: – So Adv. Khandewale you can start your arguments now.

Adv: _ Khandewale: – But my senior is advising me to do it tomorrow

Judge: – So your senior adv. Bedarkar can begin now

Adv.Khandewale:- no sir, I will iniate the arguments of the defense from tomorrow

Judge: – Anyway , what are you admitting ?

Adv khandewale:- Sir, we are admitting nothing .

Judge: Do you admit that four dead bodies were found in the canal ?

Adv khandewale:- Yes sir.

Judge: Death by homicide?

Adv khandewale:- Yes.

Judge: Inquest panchnama?

Adv khandewale:- No.

Judge: F.I.R. No.52/06 of Sidhhartha Gajbhiye ?

Adv khandewale:- No sir.

Judge: O.K. then , we can continue tomorrow.

(The court is adjourned till the next day i.e.25th July 06.)



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