Court cannot declare reputation of a person merely because a person is educated and said to be God fearing

A Division Bench of  supreme Court of India comprising of Justice M.M Sundresh and Justice J.B Pardiwala allowed the appeal of appellant who was convicted of rape and murder by the High Court of Himachal Pradesh, by releasing him on the benefit of doubt. The Hon’ble Supreme Court set aside the impugned order of conviction of life imprisonment passed by Division Bench of High Court and restored the order of acquittal passed by the Additional Sessions Judge, Fast Track Court, Solan.

In the instant appeal, the Appellant along with ac-accused was charged under Section 302, 376, 511, 454, 380 read with Section 34 of Indian Penal Code. The accused/appellant was tried for theft and murder of the deceased on the information primarily given by the informant/prosecution witness who stated to be literate and presumably a God-fearing man.

During the trial the doctor(prosecution witness), who conducted post mortem deposed that there was no evidence of rape. Several other witnesses were examined.

Finally the trial Court rendered the order of acquittal mainly on the account of unnatural conduct of informant because the informant chose not to react even after the accused left the place of murder. And also several other discrepancies  during the course of trial such as non-examination of material witnesses, absent of finger print in record.

Further, on appeal by the State, the High Court set aside the order of acquittal by substantially placing reliance upon the evidence of informant because he was natural, educated and God-fearing person. Other witness also deposed based on the information given by informant that the accused was seen fleeing away towards the hillside.

According to High Court, the fact that the accused was proclaimed offender added substance to the case of prosecution. The High Court also observed –

“ Non-examination of the material witnesses and the non-availability of the finger print report would not render the prosecution version doubtful”.

Therefore the appellant got convicted for committing murder, attempt to rape and house breaking.

Aggrieved by the impugned order of the High Court, accused/appellant approached the Supreme Court for setting aside the conviction and restoration of order of fast track Court.

Before coming to conclusion, the Hon’ble Supreme Court laid down following factors in determining the case in hand.

REPUTATION IS A FACT

The Court noted :

“16. Reputation is indeed a fact as defined under Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as “Evidence Act”). Facts can broadly be divided into external and internal facts. External facts are those which can be perceived by the five senses while internal facts arise through thoughts and feelings such as love, anger, fear, hatred and intention etc. A reputation has to be seen from the point of view of an identifiable group while character is what a person really is. Character is to be formed while reputation is to be acquired. Character may lead to formation of one’s reputation but both are distinct and different. Reputation thus forms part of internal facts and therefore it is required to be proved in the form of opinion of persons who form it accordingly. When reputation is to be taken as a relevant fact, its evidentiary value becomes restrictive and limited. It is indeed a weak piece of evidence when becomes relatable to a fact in issue.”

The Court also held that a Court of law cannot declare the reputation of a person based upon its own opinion merely because a person is educated and said to be God-fearing.

It was also observed that courts are not expected to get carried away by the mere background of a person specially while acting an appellate forum, when his conduct, being a relevant fact, creates serious doubt.  The Court noted, the conduct of a witness under Section 8 of the Evidence Act, is a relevant fact to decide, determine and prove the reputation of a witness and when the conduct indicates unnatural from the perspective of normal human behaviour, the so called reputation takes a back seat.

The Hon’ble Apex Court relied on the decision of the case, Lahu Kamlakar Patil and Another vs. State of Maharshtra (2013) 6 SCC 417 that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded.

The most recent case of Narendrasinh Keshubhai Zala vs. State of Gujarat (2023) 4  SCALE 478 was also referred to observe that “ unnatural conduct and unexplained circumstances can be ground for disbelieving the witness”

The Hon’ble Court also took reliance on case, Rajesh Yadav and Another vs. State of Uttar Pradesh (2022) 12 SCC 200 regarding the principle of law i.e. appreciation of evidence by Court. Evidence can be divided into three categories broadly, namely, ( i ) wholly reliable, ( ii ) wholly unreliable, and ( iii ) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the Court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters.

 

CIRCUMSTANTIAL EVIDENCE

For the appreciation of evidence by the courts based on circumstantial evidence, the Supreme Court again reiterated on the landmark decision of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 (Click here) which laid down five golden principle that constitute the panchsheel of the proof of a case based on circumstantial evidence. These conditions must be fulfilled before a case against an accused can be said to be fully established.

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully 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.

( 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.

 

DOUBLE PRESUMPTION

            The Hon’ble Court was pleased to state that the presumption of innocence in favour of the accused gets strengthened by the decision of the trial Court when he gets an order of acquittal. The Court reiterated the decision of Jafarudheen and others vs. State of Kerala (2022) 8 SCC 440 which held that –

 “25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

Section 378 Cr.PC enables the State to prefer an appeal against an order of acquittal.

NON-EXAMINATION OF MATERIAL WITNESSES

The Court noted that when a circumstances has been brought to the notice of the Court by the defence and the Court is convinced that a prosecution witness has been deliberately withheld, as it in all probability would destroy its version, it has to take notice and anything contrary to such an approach would be affront to the concept of fair play. 

Failure on the part of the prosecution in not examining a witness, though material, by itself would not vitiate the trial. However, when facts are so glaring and with the witnesses available, particularly when they are likely to give a different story, the Court shall take adequate note of it – Court said.

 

EFFECT OF ABSCONDING

According to the Court mere absconding cannot constitute a sole factor to convict a person because an accused may abscond as he might fear an illegal arrest. A subsequent conduct of accused is a relevant fact under Section 8 of the Evidence act but such a fact has to be proved – judgment reads.

 

FINDINGS

After going thoroughly into the facts of the prosecution case and decision of the High Court,  top Court observed that the High Court has not dealt with the case of circumstantial evidence in caution. It has blindly hold homicide simply placing reliance upon the evidence of informant/prosecution witness. And the prosecution has not proved its case beyond reasonable doubt.

 

Therefore on the basis above findings, the appellant was released and acquitted by restoring the order of acquittal passed by Fast Track Court, Solan.

 

Case:

Harvinder Singh @ Bachhu  Versus The State of Himachal Pradesh. (CRIMINAL APPEAL NOS. 266-267 OF 2015)

Date of Judgment: 13 October, 2023

Click to view judgment