In a criminal case of my client, First IO investigated the entire case, collected all the evidences, recorded witness statements etc. Then he got transfered and now retired. Now he is settled in USA. In the meantime second IO took over the case and just filed the Final Chargesheet in court.
The first IO never ever came to court for chief examination. So the second IO deposed in court and gave evidence. He exhibited all the evidences, which were actually procured and investigated by first IO.
I did not object, when it was exhibited and marked. Now the case is at stage of cross examination of the second IO.
Sir/Madam, My question is
1. How can the second IO, who never know anything about the evidences collected by first IO, depose before judge and give evidence about them?
2. In cross examination of the second IO, How can I ask specific questions about those evidences to him?
Also: What should I do?
1. File objection petition now, ie before the cross examination of second IO.
2. File objection petition during the cross examination of the second IO.
3. Dont file objection petition, just bring the issue during the cross exam of the second IO and prove it to judge that the second IO should not have exhibited the documents not collected by him. And request the judge to de-exhibit those documents.
4. Or just go ahead as usual, and in the final defense argument, raise this issue and ask for aquittal of my client because it is a mistrail?
In fact i have already advised you to file application taking objection for exhibiting the documents. You should file that application before you begin cross of IO. I am aware that the application may not be allowed. But that will help you in appeal, should that occasion arise. Evidence of IO on the facts of which he has no knowledge, is nothing but hearsay evidence and has no value. so you should simply ask him that he does not have personal knowledge about those facts. Similarly, at the time of arguments also you should argue that the documents that were exhibited without proper proof can not be read into evidence merely because those were exhibited.
There r judgements that say that merely because a document is exhibited, it does not mean that it is proved. Just ask him in cross as to whether he was present at the time of investigations or when the reports were made or when the same were signed. Cross examine on each document. That is enough. If the magistrate disallows, only then, make the said application.
It can be treated as IO is not examined.The officer who filed the final report can only say that the investgation was coducted by so and so and nothing more. You will get the benefit of non examination of IO.
If would be better if you had disclosed penal provisions as well as marked documents.