Prosecution not JUST 2 convict. Prosecution 2 place complete materials b4 Court & court decides guilt.

“….The duty of the prosecution is not to place materials which would ensure conviction. The duty of the prosecution is to place complete materials before the Court and it is for the Court to decide whether the evidence indicates the guilt of the accused or innocence of the accused. The excavation of the truth is the ultimate aim of any trial….”

Also, Non examination of Key witness fatal to prosecution case !

Classic case where the Hon. high court excavates the truth and exonerates the accused (falsely accused)

The maxim used herein should be of help in other cases as well !!

Excerpts :
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“…This appeal has been filed by the accused challenging the conviction and sentence passed under Section 3(1)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, ….”

“…It is stated that the accused who was being seated nearby the driver, scolded P.W.1 by invoking the caste name. ….”

“…5.2.So far as this case is concerned, there is no explanation as to how the accused person could have known the caste of the prosecution witnesses. Nowhere it is alleged that either they were friends or they belong to the same village or they are neighbours or they were known to each other at any point of time..”

“...The most competent person to speak about the motive / intention / the origin of occurrence is only the conductor of the bus. The non-examination of the conductor is fatal to the case of the prosecution.

“…5.The main ground of appeal in this case is that the Trial Court ought to have found that there is no intention or mens rea for the accused to have humiliated P.W.1 using the caste name, in the alleged occurrence and therefore the Court below ought not to have believed the evidence of P.Ws.1, 2 and 7….”

9.The Lower Court has considered this aspect and has given the opinion that the conductor would support only the accused as the accused was also a driver, and therefore the conductor could not have been examined. This proposition, if accepted, is very dangerous and the material witnesses could be suppressed by the prosecution by adopting this logic…..”

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 15.10.2015

CORAM : THE HONOURABLE MRS.JUSTICE S.VIMALA

Crl.Appeal(MD)No.466 of 2010

Francis Salaysia … Appellant

-vs-

1.State,
rep.by Deputy Superintendent of Police,
Pattukkottai, Thanjavur District.

2.State,
rep.by Inspector of Police,
Madukkur Police Station,
Tiruvarur District.
(Crime No.334/2009) … Respondents

Appeal filed under Section 374(2) of the Criminal Procedure Code, to set aside the judgment and conviction dated 01.12.2010 by the learned I Additional Sessions Judge (PCR Court), Thanjavur in Spl.S.C. No.44 of 2010.

!For appellant : Mr.A.K.Manickam

^For respondents : Mr.P.Kandasamy, Govt.Advocate(Crl.Side)

JUDGMENT

This appeal has been filed by the accused challenging the conviction and sentence passed under Section 3(1)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, under which the accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for three months. This judgment is under challenge in this appeal.

2.Brief facts:

P.W.1 is the defacto complainant. On 19.11.2009 in the evening, he boarded a Government bus at Pattukottai along with P.W.2-Senthamilchelvan and P.W.7-Subramanian and they were all travelling to Mogur. When the bus was nearing Mogur, P.W.1 requested the conductor to stop the bus at Mogur bus stop. The conductor had told P.W.1 that due to shortage of time, they won’t stop the bus. Thereupon, P.W.1 insisted that it should be stopped only at that place. It is stated that the accused who was being seated nearby the driver, scolded P.W.1 by invoking the caste name. P.W.1 responded to the comment saying that the accused has no authority to say about the stopping of the bus in the bus stop. The driver of the bus did not stop the bus, and he stopped the bus in the next bus stop. When P.W.1 got down from the bus, the accused attempted to assault P.W.1 with chappal, saying that he cannot dictate the conductor to stop the bus. Thereafter, P.Ws.1, 2 and 7 and the students who travelled in the bus, went to the Police Station and P.W.1 gave a complaint. The complaint given by P.W.1 was received by P.W.5-Gunasekaran, Head Constable and he registered a case in Crime No.334 of 2009 under Sections 294(b) of IPC r/w Section 3(1)(x) of Section 3(1)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. Thereupon, P.W.8-Zonal Deputy Tahsildar issued Community Certificate that P.W.1 belongs to the community which is coming under Schedule Caste. Thereafter, P.W.9- Deputy Superintendent of Police followed by P.W.10-Deputy Superintendent of Police, took up further investigation and after completion of investigation, P.W.10 laid the final charge sheet against the accused on 23.02.2010.

3.Before the Trial Court, the prosecution has examined 10 witnesses and marked 7 documents. Relying upon the evidence of P.Ws.1, 2 and 7, the Court came to the conclusion that the offence under Section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, is made out against the accused.

4.Whether the findings given by the Court below are sustainable, is the issue raised in this appeal.

5.The main ground of appeal in this case is that the Trial Court ought to have found that there is no intention or mens rea for the accused to have humiliated P.W.1 using the caste name, in the alleged occurrence and therefore the Court below ought not to have believed the evidence of P.Ws.1, 2 and 7.

5.1.The learned counsel for the appellant relied on the decision of this Court in Sekar v. State, reported in 2012 (1) MWN (Cr.) 87, wherein it has been held that existence of mens rea or criminal intention is very much essential and in the absence of an intention, no offence is made out under Section 3(1)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act.

5.2.So far as this case is concerned, there is no explanation as to how the accused person could have known the caste of the prosecution witnesses. Nowhere it is alleged that either they were friends or they belong to the same village or they are neighbours or they were known to each other at any point of time. In the absence of such evidence, the contention that the accused used abusive language involving the caste, cannot be believed. The dictum laid down in the above case is applicable to the facts of this case and therefore, the prosecution, as against this accused person under Section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not maintainable. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6.P.Ws.1 and 2 are stated to be brothers. P.Ws.3 and 4 are stated to be hearsay witnesses and P.W.7 is stated to be an independent witness belonging to the same village and the same community.

7.The learned counsel for the appellant / accused would submit that no independent witnesses, independent of bias on account of affinity towards community, village, has been examined, and in the absence of material witnesses not being examined, the Court ought not to have believed the prosecution case.

8.The most competent witness to speak about the occurrence is the conductor with whom P.W.1 was stated to have the war of words. It is his case that only on the refusal of the conductor to stop the bus, this occurrence is stated to have taken place. The most competent person to speak about the motive / intention / the origin of occurrence is only the conductor of the bus. The non-examination of the conductor is fatal to the case of the prosecution.

9.The Lower Court has considered this aspect and has given the opinion that the conductor would support only the accused as the accused was also a driver, and therefore the conductor could not have been examined. This proposition, if accepted, is very dangerous and the material witnesses could be suppressed by the prosecution by adopting this logic. It does not lie in the mouth of the prosecution to say that he would support the accused, without even examining the competent witness. During examination, if he supports the accused, he can be treated as a hostile witness and he could be cross-examined with the permission of the Court. When there is a procedure available to find oiut the truth, even from the mouth of a hostile witness and when there is a provision to take action for perjury, if the witness deliberately utter falsehood, it is not open to the prosecution to withhold an important witness and justify the non-examination by alleging that he would support the accused, that too, without any basis. Just because the accused is a driver belonging to some other bus, it does not mean that the conductor would support the driver. Even assuming that the conductor would support the accused, it is for the Court to find out the veracity of the evidence.

10.The duty of the prosecution is not to place materials which would ensure conviction. The duty of the prosecution is to place complete materials before the Court and it is for the Court to decide whether the evidence indicates the guilt of the accused or innocence of the accused. The excavation of the truth is the ultimate aim of any trial. Therefore, the Court should draw adverse inference for non-examination of the conductor, from whom the origin of the occurrence is stated to be.

11.Yet another finding in the judgment of the Court below is that there is no contradiction in the evidence of witnesses and therefore the Court is inclined to believe the witnesses. This finding is not correct and the evidence is not free from contradictions. Even assuming that there are no contradictions in the evidence of witnesses, the Court should have considered the possibility of producing parrot-like version in the evidence of witnesses. The prime consideration should be the acceptability of evidence in the light of the probability. The evidence should satisfy the mind of the Court with regard to the motive/ intention / origin of the occurrence. In the absence of the basic reasoning that is found within in the evidence of witnesses, it is not fair to say that there are no contradictions in the evidence of witnesses and therefore, the Court will accept the same. The Court is expected to not merely read the evidence and accept the same as true, but to marshal, read the evidence in between the lines, interpret and to find out even the gaps and omissions. The totality of the circumstances should satisfy the conscience of the Court, that the occurrence should have taken place in the way it is alleged to have taken place. In the absence of the same, the conviction and sentence recorded is liable to be set aside and accordingly set aside. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12.In the result, the Criminal Appeal is allowed. The bail bonds, if any executed by the accused, shall stand discharged.

To:

1.The Deputy Superintendent of Police, Pattukkottai, Thanjavur District.

2.The Inspector of Police, Madukkur Police Station, Tiruvarur District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..

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