Not wise to shift burden of proof on accused merely because of rampant increase in henious crimes; SC acquits man in a 2009 dacoity case 

Supreme Court: In a case where the Trial Court and Punjab and Haryana High Court had shifted the burden of proof on the accused merely for the reason that there has been a rise in the incidents of dacoity, the 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ has held that the Trial Court and the High Court have erroneously drawn adverse inference against the accused, in spite of the Prosecution having lamentably failed to adequately dispense with its burden of proof to depict culpability of the accused.

“It may not be wise or prudent to convict a person only because there is rampant increase in heinous crimes and victims are oftenly reluctant to speak truth due to fear or other extraneous reasons.”

Law on recovery of inculpatory material vis-à-vis burden of proof

It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt.

Circumstances such as,

• the period of interval between the malfeasance and the disclosure;
• commonality of the recovered object and its availability in the market;
• nature of the object and its relevance to the crime;
• ease of transferability of the object;
• the testimony and trustworthiness of the attesting witness before the Court and/or other like factors,

are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery.

Where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused.

“Its nearly three centuries old cardinal principle of criminal jurisprudence that “it is better that ten guilty persons escape, than that one innocent suffer”. The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that “the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent”.”

Further, the burden to prove the guilt beyond doubt does not shift on the suspect save where the law casts duty on the accused to prove his/her innocence. It is the bounden duty of the prosecution in cases where material witnesses are likely to be slippery, either to get their statements recorded at the earliest under Section 164 Cr.P.C. or collect such other cogent evidence that its case does not entirely depend upon oral testimonies.

Factual Background

• In the year 2009, four accused persons, including the Appellant were arrested on the basis of secret information received by the police and they were charged under Sections 392, 397 and 120¬B IPC and Section 25 of the Arms Act. The 5th co-accused could not be arrested and was declared a proclaimed offender under Section 82 Cr.P.C.
• In the eventual trial, 14 witnesses were examined by the Prosecution. No evidence was led by the Defence. The Prosecution argued that the accused conspired together to loot the Complainant, who, they were aware was carrying money for the purchase of a plot in Delhi.
• The Trial Court noticed that the Accused had failed to provide any explanation as to how they came into possession of the articles, especially the ‘red cloth’ that belonged to the wife of the Complainant and the passbook, which were recovered from the custody of the Appellant.
• Upon re-appraisal of evidence, the High Court concurred with the findings of the Trial Court and further noted that due to enormous rise in instances of dacoity, the non-identification of the accused in the Court could not be construed as a material consideration where other evidence points towards the commission of the crime to withstand his conviction under Sections 392 and 397 IPC.

Ruling on facts

The Court noticed that,

• the High Court and the Trial Court failed to take into consideration that the testimony of ASI exhibited no substantial effort made by the police for conducting the search of the residence of the Appellant in the presence of local witnesses. The only independent witness to the recovery was Raldu who was admittedly a companion of the Complainant.
• the Complainant as well as Raldu, have unambiguously refuted that neither the passbook, nor the ‘red cloth’ was recovered from the possession of the Appellant, as claimed in his disclosure statement.
• while the Complainant negated his signatures on the recovery memo, on the other hand, Raldu also neither enumerated the recovery memo in the catalogue of exhibited documents, nor did that he affirm to having his endorsement.
• the recovered articles are common place objects such as money which can be easily transferred from one hand to another and the ‘red cloth’ with ‘Kamla’ embossed on it which can also be easily available in market.
• the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the Complainant.
• there is no other evidence on record which even remotely points towards the iniquity of the Appellant.

It was, hence, found that the Prosecution had miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity.

“In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on the Appellant to elucidate how he bechanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct.”

Noticing that the Courts below have arrived at recording the guilt of the Appellant in absence of any cogent rationale, justifying his conviction, the Court acquitted the appellant of all charges.

[Bijendar v. State of Haryana, 2021 SCC OnLine SC 1028, decided on 08.11.2021]

*Judgment by: Justice Surya Kant