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Originally posted by :upasna |
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hey Saurabh. V...
I trust you and Tajob would be able to provide me appropriate inputs on this so that this innocent sister in law would be saved from police harrasment . |
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@ Upasana,
1. Is statement of complainant recorded before Police? What was the length and breadth of candle? What was the height the flame of candle? Was the gas pipe new or old? Was the gas cylinder empty or filled? How much filed it was? What is distance of kitchen and complainant at the time of sole incidence? Is her eyesight examined by expert?
2. Is there any seizure memo? Where they were seized? Is case property sent to FSL? When they were sent? Is there any delay and if so why and any explanation thereto? Is there any disclosure statement?
3. Is charge sheet filed?
3a. Are witness examined? Were they cross examined? Has any witness declared hostile?
3b. Is munshi writing the statement examined? Is complainant statement entirely hand written by him? Is there any overwriting or change of ink of pen? Is he cross examined? Is there any opinion of hand writting expert?;/is he cross examined? Has he been asked whether the copy of the FIR registered in the present case was sent to the Ilaqa Magistrate as required by the mandate of S. 157 Cr.P.C.? Was statement of 'special report messenger' recorded?
3c. Is case IO examined? Is he cross examined? On being reported to him id he go to the crime scene? Did he conduct investigation? Did he record his investigation?
3d. Is complainant examined? Did she call members of her natal home just after switching off the regulator? Is there any call record exhibited in file? Did she inform her husband about the incidence? Is he examined?
3f. Is Expert opinion on record? Is the expert cross examined?
Now this SIL's discharge from trial i.e defense is based on cross examination technique for which one needs to go over all the above part by part.
However the gist of statement of complainant is very tricky I must add but has loopholes which can be trashed during cross examination read with forceful argument with one small practical recreation of crime scene in court (i.e. before Bench using just a sealed candle and a sealed gas pipeline of same LPG cyl. maker) to demolish connivence of parties in servicing a malicious prosecution against this SIL:-)
What one shall pay attention to most common two fallacies of Ld. Magistrate in such cases before them are; rejecting summarily the evidence of the witnesses of the defense and two is the recovery of alleged items from crime scene and how ld. Magistrate narrates its relevance in Judgment of conviction which both becomes erroneous matter under appeal then...........
I am aware lady you will not buy my above thought lines bze these are all too early a line of thinking but what I gather from your few sentences of que. are that the case in hand is going to be based on more or less "circumstantial evidence". There is no direct evidence to prove the complicity of the accused (SIL) in the crime with which she is being charged for. The circumstances sought to be used by the prosecution to prove the guilt of the accused can be enumerated as under:-
I. Recovery of the candle and gas cylinder pipe from scene.
II. Witness depositions and their cross examinations.
The well known principles governing circumstantial evidence are that :-
i. the circumstances from which the inference of guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances;
ii. the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused;
iii. the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him and
iv. a conviction can be based on circumstantial evidence if it is of such a character that the same is wholly inconsistent with the "innocence" of the accused and is consistent only with his guilt. The incriminating circumstances that are being used against the accused must be such as to lead only to a hypothesis to reasonably exclude every possibility of his innocence.
As is apparent from the teeny - weenie brief narrated by you here and sought advise from us, it seems the case set up by the prosecution against the accused (SIL in this instance) depends wholly upon the testimonies of the IO who is/ were associated with the investigation of the present case as also the testimony of complainant and it is not our verdict but as cautioned above the prosecution case seems to be not supporting the allegations as to me "it starts and ends being occular evidence based which I have hint of" Well I may be wrong but it is besides the point !
One may ask what should be the approach of the court while appreciating ocular evidence of a complainant? The answer to the question lies in the observations made by Hon'ble Supreme Court in the decision reported re: Kalpnath Rai v. State (1997) 8 SCC 732.
In the backdrop of the afore-noted legal principles read with one sentence que. by you before us, let us try to examine the case set up by the prosecution against the SIL:
It is settled legal position that the connection between the object recovered and the offence with which an offence is charged must always be established by evidence. In the instant que. before us, there is no evidence to show that the "candle" was used by SIL (accused person) in commission of the crime with which she is charged.
Though in a different context, but the principle of law laid down in the decision reported as Suraj Mal vs. The State (Delhi Administration) AIR 1979 SC 1408, may be noted. Where substantial evidence of the prosecution is found to be tainted or is found out later to not reliable, few incriminating pieces of evidence have to be treated with doubt. The SIL may get benefited of doubt after a lengthy trial may also be construted from your que. sentence are some of our views.
However before we go and celebrate the case there are lots of sips in-between which cannot be discussed and solution provided in these kind of limited forum discussions and I wrap up by wishing this SIL all the very best based on above observations.
I am offering myself for correction on my above observations by my ld. brothers.
Let TRUTH prevail!
