TNN | Feb 25, 2014, 01.26 AM IST
NAGPUR: Expressing concern over defence lawyers not making efforts to properly cross examine the witnesses, the Nagpur bench ofBombay High Court has tersely observed that "their detailed and studied cross examination has nowadays become a rarity".
The court's observations came while hearing plea of an Akola-based man who was convicted by the sessions court for allegedly killing his wife for dowry on May 14, 2008, at his residence. However, the high court lauded efforts taken by defence counsel DB Kate stating that he meticulously conducted cross examination and it resulted in creating a big doubt regarding the death. Subsequently, it helped petitioner D Thakre to get acquittal.
Since the husband was booked under Sections 498A, apart from 302 and 201 of IPC, the court made some interesting observations. "The explanation of the word 'cruelty' requires any willful conduct of such nature that is likely to drive the woman to commit suicide. Similarly, there could be harassment of the woman with a view to coerce her to meet any unlawful demand for any period or valuable security," a division bench comprising justice Bhushan Dharmadhikari and justice ZA Haq mentioned.
They pointed out that the requirement of provisions of Section 498A is missing in the present case. "There is no evidence on record to hold that the deceased was subjected to cruelty. Hence, on said count also the conviction of the appellant cannot be sustained," they ruled.
Deliberating on the Section 106 of the Evidence Act, the judges stated that the initial burden lied on the prosecution to first establish the presence of appellant at his residence just prior to the incident. "It is only after the prosecution succeeds in proving petitioner's presence at his residence prior to the incident that the burden would shift on him to explain this presence on the basis of last seen theory. We found that the prosecution has failed to discharge the initial burden of showing the petitioner's presence shortly prior to the incident," the judges said.
The judges added that the manner in which the investigation was conducted was also required to be looked into. "The investigating officer (IO) in his cross examination has admitted that though he recorded statements of various persons including neighbours, no independent witness was examined. Absence of corroborative evidence of any independent witness especially when their statements were recorded by the IO during investigations is a factor that can't be overlooked," the court stated while setting aside petitioner's conviction and absolving him of all charges.
http://timesofindia.indiatimes.com/city/nagpur/Detailed-and-studied-cross-exam-of-witnesses-a-rarity-HC/articleshow/30960379.cms
NAGPUR: Expressing concern over defence lawyers not making efforts to properly cross examine the witnesses, the Nagpur bench ofBombay High Court has tersely observed that "their detailed and studied cross examination has nowadays become a rarity".
The court's observations came while hearing plea of an Akola-based man who was convicted by the sessions court for allegedly killing his wife for dowry on May 14, 2008, at his residence. However, the high court lauded efforts taken by defence counsel DB Kate stating that he meticulously conducted cross examination and it resulted in creating a big doubt regarding the death. Subsequently, it helped petitioner D Thakre to get acquittal.
Since the husband was booked under Sections 498A, apart from 302 and 201 of IPC, the court made some interesting observations. "The explanation of the word 'cruelty' requires any willful conduct of such nature that is likely to drive the woman to commit suicide. Similarly, there could be harassment of the woman with a view to coerce her to meet any unlawful demand for any period or valuable security," a division bench comprising justice Bhushan Dharmadhikari and justice ZA Haq mentioned.
They pointed out that the requirement of provisions of Section 498A is missing in the present case. "There is no evidence on record to hold that the deceased was subjected to cruelty. Hence, on said count also the conviction of the appellant cannot be sustained," they ruled.
Deliberating on the Section 106 of the Evidence Act, the judges stated that the initial burden lied on the prosecution to first establish the presence of appellant at his residence just prior to the incident. "It is only after the prosecution succeeds in proving petitioner's presence at his residence prior to the incident that the burden would shift on him to explain this presence on the basis of last seen theory. We found that the prosecution has failed to discharge the initial burden of showing the petitioner's presence shortly prior to the incident," the judges said.
The judges added that the manner in which the investigation was conducted was also required to be looked into. "The investigating officer (IO) in his cross examination has admitted that though he recorded statements of various persons including neighbours, no independent witness was examined. Absence of corroborative evidence of any independent witness especially when their statements were recorded by the IO during investigations is a factor that can't be overlooked," the court stated while setting aside petitioner's conviction and absolving him of all charges.
http://timesofindia.indiatimes.com/city/nagpur/Detailed-and-studied-cross-exam-of-witnesses-a-rarity-HC/articleshow/30960379.cms
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