Being forced to acquit a alleged murderer due to lack of evidence, the Supreme Court has ruled that criminal justice system in the country would be at crossroads unless and until witnesses were given protection to enable them to depose freely against the mighty criminals, at least in heinous crimes.
A bench comprising Justices Arijit Pasayat and Mukundkam Sharma, while upholding the acquittal of Mangilal in the matter of State of Maharashtra vs. Mangilal decided on 6th March,2009, which was recorded by the Bombay High Court noted, "The accused persons with money and muscle power can trample any witness who dared to depose against them. The victor will be injustice and it will be a slur on the criminal justice system if it so happens''.The bench also noted 'It needs no emphasis that in case of a gruesome murder, police protection should be given to witnesses.' The accused, who had murdered a widow and her three children, was sentenced to death by the trial court.
In the Present case, the relevant portion of the case are as below:-
It is true that four people had lost their lives and the accused does not seem to be a person of high morals, but that itself would not be a ground to record his conviction in the absence of reliable material and evidence. The circumstances highlighted by the prosecution are as follows:
1. Ilicit Relations between deceased Durgabai and accused.
2. Illicit relations between accused and Durgabai's daughter Yogita (15 years old).
3. Complaint made by deceased Durgabai on 20.7.1998 against accused regarding threat to kill.
4. Complaint made by deceased Durgabai one day before the incident regarding threat by accused.
5. Statement of PW-1 Laxman recorded under Section 164 of the Code.
6. Beating up of PW-1 Laxman by Prakash Bole to dissuade him from giving evidence in support of prosecution.
7. Police dog traced the scent from the place of incident to the house of the accused thereby connecting the accused to the ghastly murders.
8. Blood stained nail clippings of accused taken upon medical examination immediately upon arrest.
9. Recovery of blood stained jersey of accused from septic tank in the house of the accused and burnt pant at his instance.
6. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063);
Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890).
The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
7. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. state of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and
such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and
there should be no gap left in the chain of evidence.
Further the proved circumstances must be consistent
only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence....".
8. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence.
9. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been
fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
10. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable
doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4)in order to justify the inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5)if there be any reasonable doubt of the guilt of the accused, he is entitled asof right to be acquitted".
11. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
12. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should
be in the first instance be fully established and all the
facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused."
13. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned `must' or `should' and not `may
be' established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature
and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
14. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of
Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008).
15. So far as circumstance No.4 is concerned the trial Court observed that the prosecution failed to produce any evidence about the same. The police dog traced the scent from the place of incident to the house of the accused is really no evidence in the eye of law. So far as the blood stains are concerned medical examination revealed that the ladies had `B' blood group while
boys had `O' blood group. Merely because blood stains were found on the jersey of the accused from septic tank in the house of the accused and burnt pant, that is inconsequential since as noted above his blood group is also `B'. The trial Court observed that the weapon used was stone whereas the weapon recovered from the septic tank is stated to be `Kadbatodi'.
Unfortunately, no finger printing was done.
16. It is noted that though the blood of the accused was collected the same was not sent for chemical analyzer.
17. In view of the position in law highlighted above it cannot be said to be a case where the prosecution has established a complete chain of circumstances which rules out possibility of the involvement of any other person and unerringly points fingers at the accused to be the author of the crime.
18. It needs no emphasis that in a case of gruesome murder, police protection should be given to witnesses so that they can depose freely. Unless that is done result would be that justice would be done to the victim. The accused persons with money and power can trample any witness who dares to depose against them. The victor will be injustice and it would be a
slur on the criminal justice system if it so happens. In view of the above conclusions, the appeal is dismissed.
Earlier also, similar apprehensions had been expressed by another bench comprising Justices B N Agrawal, G S Singhvi and Altamas Kabir saying that possibility of breakdown of criminal justice system in the country could not be ruled out due to the manner in which the witnesses were bought over or silenced by the accused who were rich and powerful.
Justice Pasayat, writing judgment for the bench, pronounced that unless the witnesses were provided protection, at least in heinous crimes, victims would not get justice. The Centre had earlier expressed its inability to provide protection to witnesses in all cases as in Delhi alone, 20 lakh witnesses would require protection, which was not possible.
It was conveyed by Additional Solicitor General Gopal Subramanium to a bench headed by Chief Justice K G Balakrishnan in response to a bill seeking protection to witnesses. Acquittal in criminal cases has gone up sharply due to witnesses turning hostile due to intimidation.
