#Nirbhaya: Sole eyewitness “seriously unreliable”, argues Amicus Sanjay Hegde

The evidence in the Nirbhaya case seems to abound with contradictions, as was revealed in yesterday’s hearing before the Supreme Court of India’s Dipak Misra, R Banumathi and Ashok Bhushan JJ..After a long and detailed hearing allotted to the defence counsels in the past weeks, the Amicus finally weighed in. Senior Advocate Raju Ramachandran had previously argued that there were procedural flaws in the sentencing of the accused and the court had not given due weightage to mitigating circumstances while awarding the death penalty..And yesterday, Senior Advocate Sanjay Hegde elaborated on the evidentiary aspect of the Delhi Gang Rape that shook the collective conscience of the country on a winter day in 2012. He took the view that the case rested on weak evidence, a fact which was, during yesterday’s hearing supported by defence counsel ML Sharma..Hegde did not, however, argue that the crime itself was suspect, merely that the investigation was. Several of his statements pointed towards the singular conclusion that, at its very core, the case rested upon the testimony of one eyewitness. But whether this eyewitness could be believed, if at all, and to what extent, formed the core of his submissions. Points of fact on which the eyewitness was unclear at the very start seemed to come to him naturally during the cross examination..Noting the same in his written submissions, Hegde argued,.“Although an FIR need not be an encyclopedia of the crime, it is treated as a statement of the witness/complainant and can be used to contradict the witness. 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 made a subtle reference to the witness being pressurised to help the police close the case, observing,. “…injured witness can also be under prosecution pressure to crack the case, especially on one as closely watched by the media as [this case].”.Another of the major lines of argument made by Hegde centred around the recovery of the supposedly ‘clinching pieces of evidence’ that the police used as a foundation to build their case..“One of the significant pieces of evidence that corroborates the complainant’s version is the recoveries affected from the accused; recoveries of the stolen items from the prosecutrix and complainant. A closer examination of the recoveries will reveal that the recoveries themselves are suspect. .Seizure memos are unsigned by independent witnesses, despite the fact that this was a case in which there was considerable public interest. Further, the S. 313 statements of the accused reveal that the alleged recoveries affected from them had been planted and false, although this evidence was ignored by the trial court and the High Court.”.The argument was further buttressed by his perspective of the testimony of the the eyewitness. Observing that it could be “seriously unreliable”, he also took issue with the process of identification, which in no case could be called conclusive,.“Further, PW-1 made no allusion to the complexion of the accused, or any other identifying features when he made his first statement. That being the case, his identification of the accused is in doubt, if not entirely unreliable.”.Hegde shied away from propounding conspiracy theories, which the defence counsel chose to do aplenty. However, he did raise serious doubts over the veracity of the complainant’s statements, choosing to take the view that the Trial Court had erred in designating the inconsistencies as ‘merely an embellishment here and a flourish there’..With both the Amicus taking a stand contrary to the prosecution version, it is almost ironic how the accused had earlier written to the CJI to express their deep distrust in them.