How to prove circumstantial theory?
32. After having appreciated the evidence of certain crucial witnesses, we would like to clarify at the outset that this is a case of circumstantial evidence. Jurisprudentially the meaning of circumstantial evidence has never been settled. Although we may not require a detailed analysis of the jurisprudential dichotomy which exists as to what amounts to ‘circumstantial evidence’, we may indicate certain precedents and legal literature have given a definite shape for the aforesaid term.
The aforesaid tests are aptly referred as ‘Panchsheel of proof in Circumstantial Cases’ [refer Prakash v. State of Rajasthan, AIR 2013 SC 1474]. The expectation is that the prosecution’s case should reflect careful portrayal of the factual circumstances and inferences thereof and their compatibility with a singular hypothesis wherein all the intermediate facts and the case itself are proved beyond reasonable doubt.
Motive plays lead role in circumstantial evidence
40. We need to consider five aspects and their impact on the case at hand, before we put forth our analysis. It is well settled that motive is an important aspect in circumstantial evidence case. In Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55 –
“In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy”.
In this case the motive has an important role as this case is based on circumstantial evidence, motive herein forms one of the intermediate fact/circumstances. In this case, the motive of killing Chander Bhan (deceased) was to foist a false case on Dharampal son of Beg Raj. If the motive was to foist a false case, then it is quite strange to believe that the accused went to the extent of killing their own (supporter of Maha Singh) to avenge the loss in the elections. Even if the motive is taken to be proved, then this too only forms one of the circumstances for adducing the guilt of the accused.
Material improvements in the witness statements not reliable
41. The credibility of the witnesses, which the prosecution mainly relies on to prove the case on the basis of the circumstantial evidence is an important aspect. In this case the evidence of PW-13 (wife of the deceased) is crucial. Her statements should be carefully appreciated. The statements, as indicated above, clearly portray that there were material improvements in the statements, which makes her statement unreliable and doubtful. The vindictive statements which were made during the cross examination, clearly bars us from taking her testimony into consideration. There is no dispute that there was prior enmity between the wife and the accused appellants, which makes her statements unreliable. It is revealed from her evidence that, even though she knew that her husband was taken for shooting somebody, she kept quiet and did not stop her husband from accompanying the accused. Such behavior would be suspicious as it does not fit with the natural human behavior to inspire any confidence.
Identifying the chance witness and its appreciation
43. Coming to the testimony of the PW-14 (Umed Singh), the defense has tried to exposé the aforesaid witness on certain contradictions and improvements, which needs our consideration. At the outset, they question the presence of the aforesaid witness at Hisar, as the veracity of him being a chance witness is questionable. Learned senior counsel for the accused-appellant, has strenuously contended that PW-14 is a chance witness, and contends that not much reliance may be placed on his statement.
44. Generally, the chance witness, who reasonably explains his presence in the named location at the relevant time, may be taken into consideration and should be given due regard, if his version inspires confidence and the same is supported by surrounding circumstances. Nonetheless, the evidence of a chance witness requires a very cautious and close scrutiny. A chance witness must adequately explain his presence at the place of occurrence [refer Satbir v. Surat Singh, (1997) 4 SCC 192; Harjinder Singh v. State of Punjab, (2004) 11 SCC 253]. Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded [refer Shankarlal v. State of Rajasthan, (2004) 10 SCC 632]. The behavior of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident. [refer Thangaiya v. State of Tamil Nadu, (2005) 9 SCC 650].
Confession of co-accused cannot be solely utilized to convict
47. Now we need to concentrate on the relevance of the alleged confessions of the co-accused made before Zile Singh (PW-16). In Re Periyaswami Moopan,AIR 1931 Mad. 177, Reilly J. observed “where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence”. Therefore, the aforesaid extra-judicial confession against the co-accused needs to be taken into consideration if at all it is one, only if other independent evidence on record have established the basic premise of the prosecution. The confession of the co-accused cannot be solely utilized to convict a person, when the surrounding circumstances are improbable and creates suspicion. [refer Haricharan Kurmiv. State of Bihar, AIR 1964 SC 1184]. As the confession of a co-accused is weak piece of evidence, we need to consider whether other circumstances prove the prosecution’s case.
Reasonable doubt must be practical and not on theoretical hypothesis
51. From the aforesaid circumstances, we may note that the hypothesis canvassed by the prosecution cannot be said to have been proved beyond reasonable doubt as there exist apparent gaps in the prosecution story, which are left incomplete or insufficiently proved. In Latesh v. State of Maharashtra, AIR 2018 SC 659, this court had observed the ‘When you consider the facts, you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense. The reasonableness of a doubt must be a practical one and not on an abstract theoretical hypothesis. Reasonableness is a virtue that forms as a mean between excessive caution and excessive indifference to a doubt. In view of this proposition, we accept that there is no direct evidence which led the prosecution to clearly prove that deceased was shot at Adarsh Nagar in Hisar. Even the circumstantial evidence which is led, has gaps in between. In the narration above, there is a big hiatus between the time the accused left the village and the accused-appellants were seen in the Hospital, at Hisar. Neither the intermediate facts are established with certainty, nor the case as a whole is established beyond reasonable doubt.
52. We may note that every acquittal in a criminal case has to be taken with some seriousness by the investigating and prosecuting authorities, when a case of this nature is concerned. We are aware of the fact that there has been a death of a person in this incident and there is no finality to the aforesaid episode as it ends with various unanswered questions, which point fingers at the lack of disciplined investigation and prosecution. Although Courts cannot give benefit of doubt to the accused for small errors committed during the investigation, we cannot however, turn a blind eye towards the investigative deficiencies which goes to the root of the matter.
Party
SURESH AND ANR vs. STATE OF HARYANA – Criminal Appeal Nos. 1445-1446 of 2012 – AUGUST 21, 2018.
