Criminal trial by defense counsel



Generally in India the prosecution has to prove the guilt of the accused beyond reasonable doubt. Therefore except denying the allegation leveled against the accused and impeaching the credit of prosecution evidence, defense shouldn’t make an attempt to se impeached for any kind of crosst out his own story unless it can’t be examination. Because any doubt created in the mind of the court about the veracity or truthfulness of the story of prosecution, the job of the defense counsel is complete as he is entit led for benefit of doubt if not for acquittal.

In this paper we will see various tools defense counsel can use to end the very prosecution and also disarm the wheels of prosecution evidence at various stages of criminal trial. Before proceeding to underst important concepts. and these tools, it is important for us to know some What is meant Substantive Criminal Law? \

Substantive Criminal law defines offences and prescribes punishments for those offences. Ex: What is meant I P.C1860, Dowry Prohibition Act. Procedural Criminal Law?

Procedural Criminal law is to administer the substantive criminal law. Ex: Cr.P.C1973. We find the powers of police to investigate a case and mode of exercise them from section 154 to 176 of Cr,.P.C And in subsequent sections we f ind procedure court should follow and powers which court can exercise while administering criminal justice. The actual role of a defense counsel starts after filing of charge sheet i.e., a stage prior to framing of charge. After going through the papers o seizure panchanamma, chargef F.I.R, 161, sheet etc.,

we can file a discharge petition. Generally a discharge petition can be filed only prior to framing of charge. However in case of objections such as double jeopardy, time limitation they can be taken ev en after framing of charge. A discharge can be filed on any one of the following grounds: (a) Alleged acts facts didn’t disclose any offence(b) Double jeopardy (S.300 Cr.P.C) (c) Matter is of civil in nature (d) Barred by limitation (467473 Cr.P.C) (e) The court has no jurisdiction to try the case (177189 Cr.P.C) (f) That the prosecution has not been properly launched (190199 Cr.P.C) If you find your case don’t fall with in the ambit of above, the next stage after framing of charge, is marking of documents (See Rule.58 of Criminal Rules of Practice and circular Orders, 1990). Only marked documents can be read as evidence by the court . If a document is unmarked either it is F.I. R or any document it shouldn’t read as evidence. Hence, defense counsel at this stage you should see that no duplicate copy is marked as evidence. If a duplicate copy is marked as evidence objection that since it being duplicate it shall not be read as evidence can’t be taken at any subsequent point of time. What is substantive evidence? The term substantive refers to real or important. Substantive evidence means real evidence . Judgment of a court must be based upon real evidence. The depositions of witnesses before the court are substantive evidence. However there are two exceptions to this rule (a) Dying declaration (2) Confession. What does the term mean corroborate/contradict? If a particular document ha s a value of corroboration or contradiction it has no value unless person who is party to such document comes before the court and give evidence as a witness. Those documents shouldn’t be looked as a part of evidence either for corroboration or contradicti it has come and deposed before the court. What is corroboration? on at least one party to To corroborate refers to statements of witnesses are admitted only to corroborate their present evidence at the trial and they are not substantive evidence. The statement which may be proved under the section in order to corroborate, may be verbal or in writing. The force of any corroboration by means of previous consistent statements must evidently depend upon the truth of the proposition that he who is consistent deserves to be believed. Section.157 I.E.A only relates to corroboration. It provides that former statement of a witness may be proved to corroborate the testimony as to the same fact. Section.157 I.E.A applies to a case where a witness is sought to be examined with reference to his earlier statement. What is the use of corroboration? If the evidence of witness is corroborating with his earlier version, it carries more value, as it is safe to act upon such evidence being consistent with earlier version and unshaken by cross What is contradiction?examination. Section 145 speaks about the mode of contradicting previous statements in writing: The mode of contradicting previous statements in writing as to his previous statement in writing is provided U/S 145 IEA. The provision of S. 145 is attracted only when a party makes a statement inconsistent with his previous statement. The purpose behind this section is to question the witness whether he sticks to his former statement or not. A witness may be cross examin ed as to his previous statements without showing him the writing. If the previous statements in writing of a witness is to be contradicted (can be used as evidence against him) it must shown to witness and he must be given an opportunity to explain the con tradiction. When the witness has contradicted himself, the advocate should not ask him to explain, but should take advantage of the contradiction in his argument to the jury. If asked to explain, the witness will usually find some satisfactory explanation he is obliged to invent it, take back what he has said, or modify or change it. What is the use of contradictions? If there are contradictions in the evidence and if by such contradictions the veracity of the evidence is affected, it can be ground for the court to reject the evidence of such witness. Vishnu Naryan Moger v. The Karnataka State,1996CrLJ1121(Kant) .The con tradictions are valuable material in favor of the accused for the purpose of challenging the reliability of the witness and impeaching his credit B aladin v. State of U.P., AIR1956SC181. even if What is omission? Non mentioning of material fact either in F.I.R, 161, 164, made before the court for first time in the witness box. Whether omission amount to contradiction? etc., documents, but Yes, an omission to state a fact or circumstance in the 161 statements may amount to contradiction if it appears significant and otherwise relevant. Whether an omission amounts to contradiction in a particular context is a question of fact. The Supreme Court reviewing the earlier case law made the following observations to consider what omission amount to contradiction: (a) Omissions, unless by necessary implication be deemed to part of the statement, cannot be used to contradict the statement made in the witness box; and (b) They must be in regard to important features of the incident in the statement made before the police. It is quite obvious from S.162 (1) that statements s not reduced to writing by the police officer cannot be use for contradiction. However, the Court has taken the position that though a particular statement is not expressly recorded, a statement that can be deemed to be a part of that expressly recorded can be used for contradiction, not because it is an omission strictly so called but because it is deemed to form part of the recorded statement. EX: 1:Before police: Before Court A stabbed B at a particular point of time; : A & C stabbed B at a particular point of time; In the statement before the police the word only can be implied i.e. the witness saw only A stabbing B EX: 2:Before police: Before Court: A stabbed B & ran towards north side; A stabbed B & ran towards south side. Since it is not possible to run towards south and north direction at same point of time, one of them must be necessarily false. In the statement before the police the word only can be implied i.e. the witness saw only A stabbing B T he investigating officer is clothed with several powers to collect the evidence and it is made known from the sections 154176 Cr.P.C.Investigating officer recourse to following tools to substantiate their story so as to see that guilty is punished. They are as follows:

(1) F.I.R

(2) 164 statements by eyewitness

(3) Pancahanama/ Seizure panchanama

(4) Inquest report (5) Postmortem report

(6) Expert opinion

(7) Test identification parade

(8) 161 Statements Defense counsel should know the values of these st their value by way of cross examination. satements so as to diminish All these are not substantive evidence, but they merely corroborate /contradict the substantive evidence if given by the informant/eyewitness/ panch/expert/ Magistrate from the witness box at the trial. In other words, the use of such contemporary record being in the nature of previous statement made by the panch for corroborating or contradicting the evidence of informant/eyewitness/ panch/expert/ Magistrate and they are valid under Section 157/145 of the I.E.A.1872. 161 Statements can be used only for contradiction by the defence. However defence witness can be contradicted only with the permission of the court. Police diaries are not admissible as substantive evidence or for corroborating the police officer, but are admissible any for the limited purpose of contradicting him. A magistrate can look in to the general diary for the purpose of corroborating the case of the complai The statement of eyewitness recorded corroborate or contradict him: nant. u/s.164 Cr.P.C can be used only to Manik Gazi v.EmperorA.I.R1942 Cal.36

The following are substantive piece of evidence. It is not necessary the person who recorded those statements shall come to the witness box at the trial.

(a) Dying declaration

(b) Confession statement (A). F.I.R: A first information report means the information, by whomsoever given, to the officer in charge of a police station in relation to the commission of a cognizable offence and which is first in point of time and on strength of which the investigation into that offence is commenced. Though the F.I.R is not substantive evidence, it can be used to corroborate the informant under S.157 of the I.E.A or to cont radict him under S.145 of the I.E.A, if the informant is called as witness at the time of trial. It is relevant under section.8 of the I.E.A. Any statement recorded subsequent to F.I.R i.e., during investigation by police is hit S.162 Cr.P.C. (1) According to Supreme Court in: Marundangal reported in 1980SCC(Cri) 985 Augsuti Vs State of Kerala where the F.I.R is fabricated, or brought into existence long after the occurrence, the entire prosecution case would collapse. (2) The F.I.R can also be used for con tradicting its maker any omission, which is material, should be confronted, during the cross examination of the complainant. Such omissions and improvements if any made during deposition should be promptly confronted and there by credibility of the complai nt can be impeached. If the complainant is not believed and in the absence of any cogent and independent witness, except the evidence of close relatives and friends, a conviction cannot be based: S (3) The appellant unil Bajaj5 v. state of M.P AIR2001SC2386 s 1,2&3 are convicted for offence u.s307 of I.P.C and sentenced to 5 years R.I and with a fine of Rs.5000/. The first appellant is named in the F.I.R whereas appellant 2 and 3 are not named in the F.I.R. But the complainant in cross examination admitted he knew the appellant 2 and 3 prior to the incident and stated that he informed the police about their complicity in the crime. The High court held that testimony of the complaint as regards to the participation of appellant 2 &3in the crime is not credibl e and the court acquitted both the appellantsno.2&3 since they wee not named in the F.I.R: Makbool and others v (B)Test identification parade State of M.P2004(1) Crimes 112(M.P) Facts establishing the identity of person are relevant facts u/s 9 of IEA. Th e object of conducting Identification parade is to test the truthfulness of the witness & his capability to identify an unknown person whom the witness may have seen only once. Rules and Procedure of conducting Identification Parade Criminal Rules of Practice & Circular Orders, 1990) (See Rules 34 & 35 During the investigation of a crime, the police agency is required to conduct T.I.P for the purpose of enabling the witnesses to identify the person alleged to have committed the offence particularly when the witness or informant did not previously know such person. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement. Identification parade may also not necessary in a case where the accusedpersons are arrested at the spot. The evidence of identifying the accused person at the trial for the first time is, from very nature, inherently of a weak character. The T.I.P even if held, cannot, in all cases, be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained. It is a rule of prudence, which is required to be followed in cases where accused is not known to the witness or the witnesses or complainant. the complainant not known to The holding of T.I.P in the instant case would have been irrelevant, had the name of the respondent no.2 been mentioned in the F.I.R. the prosecutrix in her deposition before trial court even deni ed the suggestion of the respondent no.2 to the effect that the respondent no.2 has been working at her place as a mason. The Supreme Court has observed that the respondentno.2 has been acquitted by the High court on the ground that the prosecution does no t establish his identity. The admitted position is that the name of respondent no.2 was not known to the prosecutrix and thus his name mentioned in the F.I.R T.I.P not conducted, it is fatal to the case of prosecution Delay in holding conviction is setasi de: It is not safe to place reliance on the identification for the first time in the court by the witnesses after inordinate delay of more than two years from the date of the incident, especially when the identification in court is not corroborated either by previous identification in the T.I.P or any other evidence. The T.I.P was carried after five months of incident. In these circumstances, it is highly improbable that the witness could identify the accused persons. Even otherwise the T.I.P was conducted after along time without assigning any reason for the delay. The possibility of prosecution showing the accused to alleged eyewitness or at least by showing photographs of the accused persons can’t be ruled out. Shivrathri @Gundla Komuriah & others v. Sta A.P, 2001(2) crime (419)(AP) The Persons with distinctive features not mixed during T.I.Pte of Accused entitled for benefit of doubt: Tulsi & others v. State of U.P., 2000 Cr.L.J3080 (All) If T.I.P is done in violation of proper procedure (See Rule 34&35 Rules of Practice of Criminal & Circular Orders, 1990) accused is entitled for Ahmed bins Salam v. State of A.P, 1999 Cr.L.J.2281 (SC). acquittal The S.C held that identification parade done is in peculiar in nature and the witness in his evidence stated that the police asked him whether he could identify the persons who were on the scooter to which he could identify the persons who were on the scooter to which he replied in the affirmative and then the two the accused persons were shown for the purpose o f identification and he identified them. The court held that so called identification done in the aforesaid manner will not assist the prosecution in any way and it cannot be held to be a test identification parade. (C) Pancahanama/ Seizure panchanama/ In quest report Law mandates whenever police seize articles, conduct inquest panc ha n a ma or confession pancahnamma, it must be in the hands of two respectable independent inhabitants (100(3) Cr.P.C).

(1) Defense counsel should try to establish relationship complainant and prosecution so as to show that panc ha between defacto s are not independent and consequently to devalue their evidence. By our cross should elicit that panc ha s are interested in the out of the examination we decision

(2) Defense counsel sho uld also try to elicit that panc ha . s are not respectable persons in the society.

(3) Defense can elicit that provisions relating to search & seizure are not complied with, hence same should not be given due regard if not looked into.

(4) Defense counsel c an also throw some spokes about presence of panchas at that place at relevant point of time.

(5) Omission on the part of I.O to join within some independent persons to witness the recovery devalues the evidence: (D) Postmortem report & Exper AIR 1981SC697 t opinion The opinion of expert is relevant under Section.45 of the Evidence Act. Opinion of the expert must be based upon reasons, failing which it has no value: 1999(1) ALD422 .In order to contradict an expert witness defense must have knowledge over the subject as well. If the expert is a doctor, counsel should elicit that the death of the deceased is not due to the alleged incident but because of some other reason. We must have knowledge over the Medico legal knowledge so as to successfully crossexamine the doctor, in case of any other expert counsel must have knowledge over the particular subject of that expert. For EX: Possibility of injury to cause death according to Medical science. If defense could elicit such wound has no possibility of cause death or alleged injury, death or injury might be the result of some other reason, not because of alleged charge, accused can be set at liberty. (E) Confession Confession is the acknowledgement of guilt by accused. S.25 of I.E.A: A confession made to a police officer is not admissible. S.27 of I.E.A: A confession made to a police officer is relevant when a fact is discovered in consequence of information received from such person, so much of the information as relates distinctly relates to discovery of fact onl as distinctly relates to discovery of fact. y so much of such fact The statement must be according to the language and also object of S.27, “relate distinctly” to the object discovered and in connection therewith it can be proved conclusively if the exact statement or words used are proved. Fake discoveries are not contemplated; the authorship of the discovery must be attributed to the accused. The court has a duty to discharge in this regard. the duty can be discharged if the entire statement and particularly in the language of the accused is proved. In the instant case ‘no statement’ at all has been proved. As there was ‘no statement’ on record about the alleged concealment the court held that th ere was no legal evidence on record to connect the accused with the gun recovered: 1057 pusa koiri v. state of Assam 1986Cr.L.J Recovery is said to have been made more than three weeks after the occurrence. Admittedly, the place form where the things are said t have been recovered was a pubic place and appears to have been very much accessible to the people of locality. It is difficult to believe that there had so concealed that they were not noticed and were available to be collected from the very pale su ch a long time after. Thus the evidence of discovery of the pant and shirt of the deceased couldn’t rely on. When the confession was subsequent to the discovery, it was held to be excluded. Where an accused person makes a confession subsequent to the disco very of a fact in consequence of information given by him to the police, the confession is rendered irrelevant. Merely on the basis of discoveries of incriminating articles containing human blood, a finding cannot be recorded that it is the accused who ki deceased. lled the Discovery of common Queen place articles cannot be construed as discovery of a Empress v. Pancam: fact. Where the prisoner had told the police that he had buried stolen property near some icepits ad accompanied by the police and shown the spot where he had done so and the property was there discovered buried in an eastern vessel; held, neither the statement nor the pointing out by the prisoner of the place where the stolen property was found, was relevant against him the stolen property was not discovered owing to any information given by the accused, but by his own act. That the information given by the accused person is admissible in evidence if it leads to the discovery of a relevant fact whether the actual recovery is made by police acting on the information or by the accused himself in pursuance of information. Confessional statement leading to discovery of the accused cannot be used against coaccused Kamal Kishore v. State,1997Cr.L.J.2106(Delhi) Some other Important points:

(1) S.60 of IEA says, Evidence m1ust be of a person who has perceived by his own senses, no one else. For Ex: If a person says he saw it, he must come before the court and should give evidence. In most of the cases, it is difficult to have eyewitne ss to the incident, hence police arrange some people as eye witness to the incident, hence counsel should cross that socalled witness is not the eyewitness. examine in such manner Kinds of witness: There is no rule that just because witness is interested , hostile witness, chance witness etc., their evidence shouldn’t be rejected, however court before acting upon their evidence should look for some other supporting evidence.

(2) Nonexamination of I.O: from t Where a number of contradictions are elicited he evidence of the witnesses which are put to the investigating officer and when the investigating officer in a police case fails to appear before the court to give evidence the case has to fail and there is no other way for the lower court except to acqui 1983(2HC350)

(3) t the accused on that sole ground: APLJ Leading questions shouldn’t be asked in chief

(4)examination There must be specific denial for every allegation leveled against the accused, including the one alleged for first time in the court.

(5) It should be borne in mind that suggestion given by defense counsel are said to be the story of Defense. For Ex: in case of alibi accused must say, while crossexamining the prosecution witness, that accused was not at the place of incident but some wh 313Cr.P.C. Menserea: ere else and he is not allowed take at the stage of No act of the person was punishable unless the same is done with evil intent. In the case of modern statutory offences the maxim has no general application and the statutes are to be regarded as them prescribing the mental element, which is prerequisite to a conviction. It was held in Gujaratv.V.D.Pandey (1970)3 SCC18: State of The plain words of statue are read subject to a presumption (presumption is mensrea is there).

It may be r ebutted by the general rule of law that no crime can be committed unless there is mensrea has not been ousted by the particular element. But this rule has several exceptions:

1. One is a clause of acts, which are not criminal in any real senses, but are ac ts, which in public interest are prohibited under a penalty.

2. All public nuisances

3.Alothugh proceedings are criminal in form; it is only a summary mode of enforcing a civil right. Words denote Mensrea in IPC: pro The word mensrea has not been expressly viding under the code but it is implied through various words in the statute. They are fraudulently, dishonestly, voluntarily, rashly & negligently.S: 25: Fraudulently;S: 24: Dishonestly; S: 23: Wrongful gain; S.39: Voluntarily. Rashly and Negligently: The words rashly and negligently have been used in sections 279, 280, 283, 289, 304, 336 to 338. Defense counsel by eliciting some important facts in the cross examination should show that accused doesn’t have guilty mind to commit the alleged act. For Ex: In case of 304A IPC, if defense counsel, by evidence proves that actions and omissions doesn’t fall within the scope of Rashly & Negligently and can take acquittal even though it was proved by evidence on record that accused drov e the vehicle. EX:2: Whenever a crime is registered against the buyer for reselling for two persons by way of double registration. Police register a crime against the 2nd purchaser as well U/S.420 R/w120BIPC. In such cases defense counsel should try to pro ve by way of evidence that 2 knowledge of alleged transaction between buyer and 1 st nd purchaser has no purchaser. EX:3: I n case of 498A we should elicit in such a manner that alleged acts do not amount to cruelty. What was the mode of conveying informati and complainant )? on of the F.I.R (telephone, informant, Who wrote the F.I.R if not the complainant himself? Who accompanied the informant? Was the accused name is mentioned in the F.I.R? Were the names of the witnesses mentioned n the F.I.R? Was the accus maker? ed name is omitted in the F.I.R although it was known to the Is there is a delay? There must be explanation? What is the distance of police station from the place of offence? What is the mode of conveyance generally available to go from the place offence to the police station? Was the writer of the F.I.R produced? If not, what is the reason? of Was the informant of the F.I.R examined as witness? If not, what is the reason? Was there any discrepancy between the F.I.R and subsequent evidence? Was the F.I.R made after commencement of investigation? Was the F.I.R given by accused or one of his party? When the accused person is arrested on the basis of physical features given by the eyewitness, police arranges the test of identification parade.Identifi cation parade is conducted in presence of judicial Magistrate and the police have to leave the scene to ensure the free and fair in conduct of Identification Parade. Arrested person will be placed among the other persons who have same physical characters of accused as far as possible. Then the Magistrate calls the witness to identify the accused person to whom he had seen while committing the crime. If the eyewitness identifies the accused he picks up the person to whom he had seen while committing the cri me, the Magistrate records to that effect and he completes the proceedings who identifies the accused will be produced in court at the time of trial to identify the accused person.