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Crl.AppealNo.2295-2296of2010

Crl.AppealNo.2295-2296of2010

Crl.A.Nos.2295-2296 of 2010 -78-alleged letters were recovered in a perfect conditionfrom the clothes of the fidayeens. The High Court hadfailed to reconcile the fact of absence of bulletholes on the letters with the presence of multiplebullet holes on the pockets of the trousers, fromwhich the letters were purported to have beenrecovered.With regard to the letters being in aperfect condition, the High Court merely observed that“Truth is stranger than fiction” and it was submittedthat the courts below ought not to have relied uponsuch a document to record their findings of guiltagainst the accused persons on the basis of the same.58. The learned senior counsel also referred tovarious discrepancies in the statements of the twoimportant witnesses in relation to the letters, i.e ofPW-91, Lt. Col. Jayadeep Lamba, who, according to theprosecution, had recovered them from the pockets ofthe trousers of the fidayeens, but whose statement wasnot recorded under Section 161 CrPC and that of PW-

Crl.A.Nos.2295-2296 of 2010 -79-121, the translator of the letters. It was claimed bythe prosecution that PW-91 was not examined by theinvestigation officer under Section 161 CrPC since theNSG had refused to grant permission to its personnelto disclose any information regarding their operationwith respect to the attack. The prosecution had placedreliance upon a letter dated 11.02.2002 by theMinistry of Home Affairs to prove the same. Thelearned senior counsel contended that the prosecutionhad however, relied upon the statement made by thiswitness, PW-91 before the Special Court (POTA), whowas a chargesheet witness although his statement underSection 161 CrPC was never recorded and thus, theaccused persons had been naturally deprived of anopportunity to effectively cross-examine the witnessand thereby they were very much prejudiced.59. The learned senior counsel also contended that theclaim of the prosecution that the letters were foundin a pouch which was present in the pocket of the

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