Senior Advocate Sanjay Hegde, one of the two amicus curiae appointed by Supreme Court in the Nirbhaya case, has submitted that the First Information Report (FIR) in the case is a creature of an afterthought by the police.
He was arguing before a three-judge Bench comprising Justice Dipak Misra, Justice R Banumathi and Justice Ashok Bhushan hearing the case.
In the argument note, he submitted as follows:
“The statement of the complainant (PW-1) was recorded by PW-74, in the early hours of 17.12.12. Ex PW 1/A is the complaint, bearing signature of PW-74 at point B. While this document mentions the date of recording the statement, it does not contain the time at which the statement was recorded. In his cross-examination, PW-74 deposes that the statement of the complainant might have been recorded at around 3:45 AM. However, PW-1 deposes that the statement was recorded at around 5-5:30 AM. In his chief examination, PW-74 deposes that he had given the complaint (rukka) to Ct. Kripal and sent him to the police station at 5:10 AM – which thereby leaves the time of recording the complainant’s statement inconclusive.”
“It was only upon receipt of the complaint at 5:40 AM which led to the registration of the FIR. The original FIR was in fact the statement recorded by PW-73, and the investigation process had already begun at the time – around 1:15 AM. This subsequent information from the complainant which is alleged to have been the first information was in fact crafted after the investigating agency had decided on a course of action, and made only in order to back their line of investigation. This makes Ex PW 1/A a statement u/ s.161CrPC, and not, as defined by the prosecution, an FIR.”
He also submitted that convict Mukesh was not with the main accused Ram Singh in bus when offence was committed. He pointed out that the mobile locations of Mukesh and Ram Singh were different at the time of occurrence.
Sole eyewitness not reliable
Advocate Hegde also submitted that the evidence of the sole eye witness in the case (friend of Nirbhaya) raises doubt in the prosecution case.
“The deposition of PW1 suffers from significant omissions amounting to contradictions, when compared to the FIR. In fact, multiple supplementary statements of the complainant were recorded in the days following the incident, which followed the investigation of the prosecution, instead of guiding it, rendering this witness unreliable”.
He also submitted that the impugned judgment is incorrect in so far as it categorically holds that the statements of the complainant are entirely reliable as there were merely ‘an embellishment here and a flourish there’, and that the ‘defence failed to establish any contradictions in his statements’.
“During the cross-examination of the complainant, the defence counsel had confronted him with several significant omissions as explained above – the names of the accused, specific roles ascribed to the accused and identifying details of the bus. Since these are core to the case, and not mere embellishments, their omission amounts to contradiction in the statements of the complainant. Combined with the unreliability of the recoveries and suspicious nature of arrest of certain accused, the complainant’s statements are not neatly corroborated as held in the impugned judgment, and ought to, at the very least, raise some doubt on their reliability,” he said.
Earlier, Senior Advocate Raju Ramachandran, the other amicus curiae in the case submitted that the order on sentence passed by the Trial Court on 11.9.2013 and confirmed by the High Court, ought to be set aside for violating the fundamental norms of sentencing, constitutionally ingrained, statutorily reflected and judicially interpreted by the Apex Court. He also submitted that both the high court and trial court grossly erred in imposing death penalty to the accused without considering the circumstances relating to the criminals.
The Supreme Court is holding a special hearing of the Case Today.
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