Khairlanji: Court Proceedings 20th August |1st Sept | 12th Sept
The court assembles at 11:30 A.M. Adv.Nikam rises to speak .
Adv.Nikam: Sir, S.161 can be used for contradiction. For that the facts are to be put up.In statement given to the police he said that when the incident was happening ,he was sitting on terrace. The defence should have first put up the fact before him and should have asked him whether did it so happen that he stood on the terrace . If he says ‘yes’ then he should be asked what he told before the police . This is how the contradiction is brought up. The defence did not carry the cross-examination to its logical end. The natural justice is not only applicable in case of the accused but in case of the witnesses, too. By contradiction the witness gets discredited but not disbelieved. Omission is only material only when it amounts to contradiction and is dishonest. The court has to judge on which which pan of the balance ,he is hearing on whether evidence or omission or contradiction. But my contention to defence is it to put a fact first and then bring out the contradiction later. But they did not follow such a procedure of law.
There is certain rulling on this of A.I.R.2004, Page No.65 , Riza Noorjahan Vs.State of Andhra Pradesh. Para 6 & 9 which says parrot like repetition amounts to discrediting of witness.
The witness’ statement were recorded by different authoritries.The memory of witness is not tape recorder.The minor contradictions and omissions are inevitable consequences considering the strata and background from which they have come from. Are the omissions and contradictions so material that they amount attention ? I would say ‘No’It is not quantity but quality of contradiction and omission which is important .
Following tests have to be applied to consider the contradictions and omissions-
1. Whether contradictions and omissions are so material , major and significant.
2. Omission and contradictions capable of bringing doubts about whether the witnesses are bought.
3. Are capable of dislodging the story of prosecution.
4. Are appearing as evidence as the prosecutor asks the question to the witness.
5. Witnesses developing their own story.
Considering on these grounds , I am sorry to say that what contradiction and omission have been brought up is only idle burden of record on the court.Omission to state a fact is an contradiction. Kindly, refer to the explanations as given in the Section 162 of Cr.P.C. What is the wording of Cr.P.C. , omission amounting to contradiction.Omission to bound to happen in truthful witness. Not remembering due to lapse of time is natural.To tell exactly as happened in not even approved by the court.Omission amounting to contradiction means comparing the contradiction to what is earlier said .
Now , about contradictions about distance . For that please to the decision of the Hon.Supreme Court in 2003 which says that distance is not fatal to establish the evidence.
About late recording of statement by C.B.I. – Mukesh Pusam and Dinesh Dhande were examined by C.I.D.But it is said by the defecne that the witnesses’ satetment were not handed over to them.The investigations were handed ovet to C.B.I.because it was said by the people that State police properly did not investigate the matter. So, the statement of witness recorded by them was not handed over to them. Since , their investigation was not relied upon it is quite imperative that the investigation officers from C.I.D. were not called in the court for examination. The defence must show that since they were not called in the court , they are prejudiced.In contrast to that , in all fairness , the previous statements recorded by C.I.D. are submitted in the court.Kindly , refer to the A.I.R. 2004, /State of Karnataka Vs.Dhaskat para 10 which says that non – examination of Investighations Officer is not prejudicial to counsel.
Judge: But Suppose fatal omission and contradiction comes over , then who should examine the witness.
Adv.Nikam: The defence. Because they would have called them to be examined in the court.
Judge: Why you would not examine them.
Adv.Nikam: Because I will not be relying on them.
Andhalgaon Police acted in negligence because-
1. They did not act on phone call .
2. Surekha told Rastrapal on phone that it is futile to report the police. (Cites the case law in /S.C. in Manjushree Sarda) Similar analogy , I can cite here. Surekha had referred about the 12 persons who had been freed on bail from Mohadi Court in Siddhartha Assault Case. She was apprehensive about these 12 persons. This can be seen within perview of S.32 of Indian Evidence Act. Explanation of Surekha to Rashtrapal amount to dying declaration by her.
3. Even thought the witnesses told C.I.D .the names of the accused, they were taken to Identity parade. Why ? That means there was the substance in the demand of the people to hand over the investigation to C.B.I.For that , I cite thejudgement of Supreme Court. It is in S.C. 2004, Cr. P.C. para 5 , it is established that in case of defective statement by witness recorded by an investigation officer, the falilure of Investigation officer not to establish the fact, can not be said to amount to discredit of witness. If such a condition arise , what should be the duty of court. It is said by the Supreme Court in Krishna Doshi Vs. State of Bihar para 13 that Society suffers from conviction and society also suffers from wrong acquittal.
The defence asked Mukesh Pusam whether he had seen the accused killing Priyanka ,Sudir and Roshan. He said ‘no’. Then the defence asked him what is the meaning of saying seen during examination and saying not seen in cross-examination . But what is the inference ? Sudhir ran towards Dhusal village . The accused chased him. Then he saw them dragging his dead body/. Roshan was crying not to kill him. Again the witnees saw the body being dragged. Priyanka yelled ‘oh mother, I am dying’ / again the witness saw her body being pulled.
Law is a codified logic. Then if the saw the accused chasing the victim and then bodies being pulled out by the accused , then it follows that the accused killed the victims. Mukesh’s attention went towards the Priyanka’s yell . He looked toward that out of curiosity.
The defence tried to put the matter of enmity between Mukehs and Upasarao Khandate contesting the Gram Panchaya election in opposition to each other and the accusesd helped Upasrao. But it was also told by Mukesh that he, too , was helped by the accused.Then the P.W. 19, Dinesh Dhande told that there were two panals one of one of his mother and other of the accused. But in which year the elections were held is not brought out by the defence.
C.B.I. recorded the statement of /Suresh Khandate on 5th December and the J.F.M.C. recorded it on 15th January. There was the delay of 65 days after the incidence , But considering that C.B.I. came into picture after a lapse of around 45 days , it is no delay at all. If you put all these in juxtaposition , then delay hardly matters. It was admitted by the defence , that Suresh Khandate was suffering from Chicken Gunya. Two facts come out of suggestion by the defece to the witness-
1) He was suffering from Chicken Gunya.
2) He was not in position to give evidence.
(At this juncture , lunch-break ensues.. After lunch – breakd, Adv.Jaiswal makes unruly behavior objectiong about Adv.Nikam making the same argument again and again.Adv.Nikam rises to speak neglecting his statement.)
Adv.Nikam: The dcfence contended that he did not disclose about the incident to anybody . But peruse his statement and you will come to know that he did tell about the incidence immediately to his wife. Then why he did not tell it to the media or police about. The reason he has given was that he was suffering from Chicken Gunya. The symptoms of it had appeared in his statement in para24 as difficult to walk or talk. But then how could he see the incident if he was suffering from Chicken Gunya that time too. But I earlier said curiosity is the ultimate human psychology.And Chich Gunya does not make the human completely partalysed. Your honor , if you read the whole evidence of him , there is hardly anything other than the facts.Because there was the threat , Suresh did not disclose it to anybody other than his wife. This can be seen in Exh.278, that he has disclosed apprehension to his life on 24th April i.e. before his deposition in this court.
About the witness Mahadev Zanazad. – He said that it is false that he saw the incident is false. But he admitted that he saw the accused surrounding the victims’ house.
About Medical Evidence- Sharp edged weapon causes the cutting injury which was not recovered by the police. But it is most probable since there was crowd , the assailants could have the sharp knife. This possibility can be hardly overlooked. In a case of Hari Yadav vs. State of Bihar page no.61, 2008, it is stated by the Supreme court that the blunt object can also cause the incised wound.Similiarly, the cycle chains’ outgrown hooks can also cause the incised wounds.
Now about extra-judicial confesion by the accused . The defence contended that the accused said the statement in intoxication. But though it would not be experience but the knowledge of court that the drunken man says the truth. The alcohol suppress the thinking process of the brain so whatever the man says is not false but only the truth. The accused confessed the act of crime in the drunken state. It was considered by him the act of valor and bravoury.
The witness P.W.10, Anil Lede had gone out of the village soon after the incidence since he had fear of his arrest by the police because lot of people were being arrested on suspicion. Asking tea on credit is omission but it is negligible.
(At this stage , the court is adjourned till 1st September)
On 1st September Adv.Nikam submits in the court his all written arguments.
On 12th September-,Additional issues were to be declared but since only defence lawyer , Adv.Khandewale was present and not a single prosecutor was present , the court was adjouned till 15th September for such additional issues and final Judgement.
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