Khairlanji: Court Proceedings on 19th August ’08


The court assembles at 11:30 A.M. The prosecution lawyers Adv.Khan and Nikam are waiting for the defence lawyer , Adv.Khandewale. At 12:45 , his name is called out by the peon . But he doesn’t turn up. So, the Hon.Judge S.S.Das asks Adv.Nikam to begin the day’s arguments since assistant of the defence Adv.Lakhanikar is there . Adv.Nikam then gets up to put his argumentns-

Adv.Nikam : Sir , I was on the point of criminal conspiracy in the interest of law. But before that , I will remind the court about the statements of P.W.19, Dinesh Dhande . He says that he sawthe incident standing on the terrace of his house as per his version to the police statement under S.161 of Cr.P.C. But in his deposition before this court , he said that he saw the incident standing on the road in front of his house. No doubt , it was proved. But he was not put the question of whether there was darkness or not. The defence did not put the fact before the witness. The previous statements of the witness can be used for 2 purposes- (1)For contradiction (2) For corroboration but barring the statements given u/s 161 & 167 .

S.161 says, “

(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. 

(2) Such person shall be bound to answer truly all questions relating to such case Put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. 

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.”

 The defence miserably failed to disprove to gist of the statement of the witness i.e. the witness did not see the incident. According to S.161, it is not obligatory on the part of the investigation officer to record the statements of witness. Total discretion rests on the police officer about  recording of the statements.  S.162 puts the stringent condition on the use of the statement by investigation officer. It also provides for the cross-examination of witness.

But the real question is what is contradiction?The explanation in S.162 says , “An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.”

I would like to point out about the omission and contradiction. What is the value of omission put forwarded by the defence. Secondly, in what manner witness to be contradicted.Defence failed  u/s 162  to contradict the witness within the perview of S.145 of Indian Evidence Act.S.145 of I.E.A.says,” Cross-examination as to previous statements in writing – A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Two thing arise out of this section. Firstly, facts are required to be put before witness. Secondly, in case, the witness disagrees with facts then question of contradiction arises.However , in this case what we observe is that the sections of law is disobeyed by the defence.Assume for the case of argument that witness had admitted the facts to the police and later to the court.Then the question of contradiction would not arise . If witness agrees his earlier statement and defence cross-examines then if after stating out the fact ., it is denied , then a question is put before the witness   which of the matter is correct ? This is the way how in cross-examination omissions and contradictions are pointed out .  For example, A says before Hon.court that  there was darkness when the incident took place  and prior to that  he had said same thing  to the police. Defence wants to contradict. What should be proper procedure ? In my opinion , the proper procedure would be that firstly the cross-examination requires that the fact be put before the witness . The question is whether there was darkness when the incident took place ? But , suppose if the the witness says ‘no’ then the portion is marked as contradiction. Contradiction is to discredit and not to dispirit the witness. No fact was brought on record by the defence .   

There are two things , evidence of statement and evidence in respect of fact. Evidence of statement means the mere statements as recorded by the investigation agencies.  In contrast to this , the evidence of fact means the facts contained in the statement. One can make true or false statement. So, making statement will not lead us anywhere.So, in the interest of justice ,court of law is interested only in fact.Law is interested in fact & not what is stated by the witness ealier.Statements of the witness are important in relation whether we contradict or corroborate to what the witness said. Witness is to be contradicted by the fact itself and not by his statements.The fact of statement is one thing and statement of fact is another thing. The defence relied only on fact of statement and not on statement of fact. The fact must be contradicted by the fact itself . The witness may say that he stated the fact out of ignorance or coercion. If the fact is not put before the witness then the law had been disobeyed. This is what is established Noccording to Criminal law journal , 1996, para 20 (reads through the para) .

Now, let’s go to P.W.19,para 19, page 11 , Dinesh Dhande`s statement ,” I do not remember whether I told  police that at the time when  villagers surrounded  house of Bhaiyalal Bhotmange, it was time 7.00 p.m. Witness volunteers that police did not record my statement.  As police  did not record my statement, I do not know what they wrote by showing my statement.  I did not tell police that from my terrace I saw that some thing was going on around the house of Bhaiyalal.  I did not tell police that from the terrace I saw some ladies and gents attacked the house of  Surekha Bhotmange.  Portion mark ‘C’ of my statement dated 29.10.2006 which shows the above  fact, is not correctly recorded.  Portion mark ‘D’ of my alleged staement dated 29.10.2006 which shows the fact that Surekha and her children were being beaten and they were screaming to save them, is not correctly recorded.”

No fact was put before the witness so there is no contradiction.

(At this point , Hon.Judge S.S.Das interrupts )

Judge: But the witness can be discredited or contradicted?

Adv.Nikam: But even then discrediting the witness is possible only when the facts said by the witness are contradicted and not the fact of statement. The main contentions of the defence are (1) It is not that the witnesses were the relatives of Bhaiyyalal Bhotmange , but they had cordial relations with him. (2) The investigation officers recorded the statements of witnesses very late. (3) It was dark when the incidence happened. (4) There are omissions and contradictions in the statements of the witnesses.

Now, how the evidence of witness is to be deposed ? I know the importance of  this case , so , it is my bounden duty to state on this. Four tests are applied to test the veracity of a witness-

1)    Whether the witness is independent or not ?

2)    Is eye witness is of dubious character ?

3)    Whether is eye witness interested in the conviction of the accused?

4)    Whether eye witness is reasonable or not ?

Here if these 4 tests are applied then individual and cumulative appreciation of evidence are entirely different.

The tests of individual and cumulative are –

1)      On his own if the evidence is corrupted or not ?

2)      Is it in juxtaposition with other other evidence?

                                              What is the side of the defence ? They are saying that since the statements were recorded much later after the incidence , they do not believe the evidence. Secondly, the evidence presented before the court is tainted. But how is it tainted, they have not yet told. Mukehsh Pusam and Sureh Khandate reside near to the house of Bhotmange, so they are natural witness. Generally , the family loving person returns at evening to his house and remains at home. Thewitnesses  saw the incident after hearing the cries . So this  is the natural evidence . The defence is merely complaining the falsity of evidence by uttering it many a times. Simile of such thing we can find during the second world war .  Gobel was the minister of broadcasting and communication ministry of Hitler’s regime. He used to spread the rumours in the minds of enemy side so that he can put the fear and confusion in their minds . I don’t want to compare the defence with them but it is difficult to day that they are not resorting to such tactics of war. The defence says that the witnesses had been bought up by us and they have been tutored by pressuring  by C.B.I.  These are all like announcements made by the defence. But the public prosecutor and Hon. Court should identify the truth by application of magnifying glass .  Just because Bhaiyyalal Bhotmange’s sons used to visit the house of Suresh Khandate, he is said to be an interested witness by them . There are no hard and fast rules for declaring a witness as an interested witness . But two constituents can be enumerated for it –

1)      The defence must be able to prove the falsity of the statement of witness.

2)      Reason for such falsity of the witness is that to be of his / her interest.

But in this case, the defence did not even try to prove the falsity of witness.

There is such ruling about the interested witness in the case of Rankrishna vs. State . page no 602.

Secondly , what did Rashtrapal tell ? He told  , “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.” Rashtrapal did not tell anything except this regarding the accused. Had he said that  there was possibility of such and such persons of beating the Bhotamnge family , then he would have to be said as the interested witness. But such thing did not happen . Mukesh and Suresh are not chance witness , but the natural witnesses.

(At this stage ,  the court is adjourned till 3:30 P.M. for luch break)

At 3:30 P.M. , the court re-assembles . Adv.Nikam to continue his arguments.

Adv.Nikam : Sir, now now I will say on the argument of the  defence about delay in recording the statements of the witness late. But it should be considered whether the delay was deliberate , whether  the same delay created the doubt, whether the witness had provided the any reason for such delay and whether any such delay was justified. In case of delay  the basic questions should be –

1)      Whether it is mandatory  requirement of law if it is to be recorded immediately.

2)      Whether not recording the statements immediately amounts to illelegality.

If the law insists that statement of eye witnesses are to be recorded immediately , then why it mandates so ? Following reasons can be cited for that –

1)      There should be no concoction or  fabrication of evidence.

2)      Keeping mum on incidence is normally considered as unnatural.

Human psychology induces a person to  disclose any unnatural incidence to other person. Therefore, precedence says that the statement of  witnesses should be recorded immediately.

There is no law about question no. 1 but law only of precedence says so depending upon the reasons I stated above. In Cr. P.C. section 161, nothing is written about stating the point of fact. Why law is silent on it ?  Simple reason is the hesitation of people . Our people are reluctant to go to the police station on their own. It is only when that police inquire  , they disclose. No doubt it is tragic but it is a fact. Law does not attach statutory importance to the timing of statement by eye – witness .  This is most basic in eye-witness case. The witness even can not dare to say that they are afraid of the accused.Legally,  is not possible to gauge fear  by the courts.For it , the conduct of the witness is to be taken into account. P.W. 2 Mukesh Pusam’s statement were recorded on 11 Nov.2006 ,  so delay of 40 days were there in recording his statements. But why was the delay ? Was it deliberate and natural dealy ? We will require to see that . I am greatful to my friends for asking witness , Mukesh Pusma about why he was delayed in telling the investigation authority . The reason for that they themselves inquired from the witness. Why he left the village soon after the incidence was not asked by them . If asked , it is not difficult to predict  that he would have said that he left the village  because he was fearful of the accused . But defence did not ask that.

P.W. 23, Sidhheshwar Bharane  registered the case under F.I.R. no. 56/06 on bhaiyyalal bhotmange’s complaint.  According to him , he deputed  the head constable Baban Meshram  to Khairlanji .  Whether Meshram searched the house of Bhaiyyalal Bhotmange was not asked by the defence .  It is not disclosed what exactly he did after reaching there . Later , the case was handed over to Dy.S.P. Sustkar . On the first of his investigation , he searched for Mukesh Pusam but he could not be traced out. He investigated till 8th Octomber. Till that time , he found that his house was locked. The defence cross- examined him. But what went unchallenged is that at what time ,  Mukesh left Khairlanji from 30 september onwards. Sustkar said that Mukesh was absent from 29/9/06 . My contention is whether this admission will help them? Two things are implied in the statement of Sustakar  when he said that he came to know that Mukesh was absent from village Khairlanji from 29/9/06 –

1) Somebody told him that Mukesh was absent from his home from 29th .

2)Sustkar had no personal knowledge about Mukesh if he was absent from 29th .

This is hearsay evidence. This is put by S.160 of Indian Evidence Act. When an Investigation Officer relies on hearsay information , whether such an officer is competent to hold investigations. Sustkar had no personal knowledge . On what basis he can say that Mukesh was not present in village from 29th ? Let us for a while assume that Mukesh had gone out of the village at 10 P.M. of 29th . But defence did not take care to inquire to establish the time of incident. Mukesh was not asked about the reason for leaving the village . The defence and we prosecutors have to say same thing that Mukesh Pusam was present when the incident took place. We have no quarrel about that.Suggestions to witness are given on the basis of hypothesis. Then it was assumed by the defence that Mukesh was present on the day of the incident

Now , about darkness. Was there enough light when the incident happened? The witnesses say that it was 6-6:30 when the incident happened. From this , their sincerity is proved. According to statement of Mukesh and  Suresh , Surekha put fire to the cattle-shed.This was not challenged by prosecution. After putting the fire , the  brightness was increased . Had the incident occurred  at around  9 P.M. , still  the incident would have been seen. When the question was put before Mukash Pusam of why Surekha did that he said that it was done to terrorize the accused .  She thought that by putting fire to the cattle-shed , the accused shall become afraid and the villagers will make hue and cry for that . We can also infer the same reason by going into not much distant history. When the moghul King Afzal Khan was to attack on the fort of  King Shivaji , he was shocked and terrorized to see the number of torches . He thought there were lot of armies of Shivaji. But Shivaji did was to tie the torches on the horns of bulls . The same thing must have been thought out by Surekha . So , whatever the darkness was there it was dispelled by putting the fire to the cattle-shed.

But apart from that there was twilight as well since it was dusk.

(At this pointt Adv.Nikam submits a “ panchang” i.e. horoscope to the Hon.Judge)  This is to decide the time of sunrise and sunset. According to this horoscope , on 29th September  the sunrise was at 6:14 A.M. and sunset was at 6:10 A.M. But even half an hour after the sunset , twilight is there. That means there was light till 6:40 P.M. And the witnesses agreed that. So , the sources of light and the reason for the identification of the accused by the witnesses were –

1)      Surekha burnt the cattle-shed.

2)      The sunset at 6:10 P.M. and twilight for half an hour after that.

3)      The witness and the accused were known to each other.

4)      There was no load –shedding at the time of incident which is admitted by Sushil Bansod , the independent witness who works as supervisor of the power sub-station of Jaamb .His witness is corroborrated by the documentary evidence.

I would like to cite case laws about darkness . It is there in A.I.R.1997 , Supreme Court 1808, Nathini Yadav Vs. State of Bihar para 8 and A.I.R. 2002 , S.C. 1686 . (Reads the case laws) From these  cases , it is clear that  it is sufficient to establish the evidence if there is  enough  light and the witness knows the physiognomy of the accused . For that question of darkness is not of much importance.

P.W.19 , Dinesh Dhande in para 22 says ,”  Due to somewhat darkness I could not see the incident  clearly” . Now , here the word used is somewhat darkness . What this somewhat darkness means ? There is no fuss about the word   somewhat. It is not made  clear about somewhat darkness. Where is the material contradiction ? He told before the magistrate that he did not see incident clearly due to darkness but here he told that he could not see due to somewhat darkness.

The third important point  defence raised is that C.B.I. lured the witnesses . They say that all the witnesses are purchased . They say this on the basis of Exh.274 which pertains to the application dated on 16/4/07  by Mukesh and Suresh to District Magistrate for their rehabilitation  which is much prior to the deposition before this court on 12th May 2007. They had also submitted the documents numbered as 271 and 272 in connection with this . But in all these documents , they have not uttered a single word that if they give the evidence they will have to provided with property and money. That inducement is absent there. There is no such statement in it that after all the statements are recorded , they will give them property.

That’s all for today. I will continue  the rest tomorrow.


(The court is adjourned till the next day i.e. 20th August)

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