The Hindu : Tamil Nadu / Coimbatore News : Circumstantial evidence enough to prove conspiracy, says prosecution

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Wednesday, Apr 04, 2007
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Tamil Nadu

Tamil Nadu - Coimbatore

Circumstantial evidence enough to prove conspiracy, says prosecution

V.S. Palaniappan

Coimbatore: The prosecution in the Coimbatore serial blasts case on Tuesday argued that circumstantial evidence was enough for proving conspiracy and direct evidence was not required since the nature of conspiracy was always secret planning.

The prosecution counsel, T. Balasundaram submitted his arguments along with T.A. Selvaraj before the Judge of the Special Court for Bomb Blast Cases, K. Uthirapathy quoting exhaustively from the Supreme Court rulings.

P. Thirumalairajan, Bhavani B. Mohan, Mohammed Abubacker and a number of other counsel represented the defence. More than 50 persons were killed and over 250 injured in the serial blasts of February 14, 1998.

Mr.Balasundaram quoted as many as ten Supreme Court rulings and said, "In conspiracy charge - time, place and actual words of communication need not be proved."

All the conspirators were liable for the crimes committed by the co-conspirators and hearsay evidence was admissible.

Fading of memory due to lapse of time would result in contradiction by a witness and that could be ignored if the witness was trustworthy, he said.

Citing 11 judgements by the apex court, he argued that defects, faults, irregularity and illegality in investigation need not be held as grounds for summary rejection of the prosecution's case or in acquittal of the accused.

He also pointed out the apex court observation that "castigation of the investigation/prosecution had become a regular practice for acquitting the accused since no prosecution case could be completely flawless or absolutely foolproof. The conduct of the witness in disclosing the facts and the resultant discrepancy do not go to the root of the case hence it need not be considered".

He also said, "Defective investigations cannot be a ground for acquittal and appreciation of evidence; courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper-technical approach had to be replaced by rational, realistic and genuine approach for administering justice in a criminal court."

Technical errors should not be made fatal for the prosecution's case.

Regarding the test identification parade, Mr.Balasundram said it was only a part of the investigation and not for the trial.

Witness identifying the accused in the parade but not in the court need not be thrown out since the Magistrate conducting the parade had given evidence.

Parade proceedings could not be rejected on a mere suspicion that the accused might have been shown to the witness. If the witness did not suffering from any infirmity, the parade proceedings need not be taken as weak evidence.

On the photo identification, Mr.Balasundaram said that in the event of a photograph used for identifying an accused the evidence was admissible under Section 3 of the Indian Evidence Act if the person to whom the photograph was shown was examined before the court.

On the benefit of doubt, reasonable doubt and beyond reasonable doubt, he said minor shortcomings in the investigation do not create any reasonable doubt and should not be the ground for acquittal.

Pleading that the court should separate the grain from the chaff, he said that part of the evidence given by a witness could be believed and the reasonable doubt should be based on reason and common sense.

What is false or defective at first need not be so totally and "falsus in uno falsus in omnibus" was not applicable in India, he said.

Even if the major portion of evidence was found to be deficient, if the residue was sufficient to prove the guilt, it must be considered.

Defective investigation, omission or a mistake could not vitiate the trial and the case could not be completely thrown out.

Similarly, citing Section 36 and 156 (2) of Criminal Procedure Code and apex court rulings Mr.Balasundaram said that the investigation by the Special Investigation Team in this case was legally sustainable.

An investigation officer was not an eyewitness; hence his non-examination could not be fatal for the prosecution case unless the defence showed prejudice.

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