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Monday, October 24, 2022
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prosecution case…..”
116. In Mohar Rai (supra) it is made clear that failure of the prosecution to offer
any explanation regarding the injuries found on the accused may show that the
evidence related to the incident is not true, or at any rate, not wholly true. Likewise in
Lakshmi Singh (supra) it is observed that any non-explanation of the injuries on the
accused by the prosecution may affect the prosecution case. But such a nonexplanation may assume greater importance where the defence gives a version which
competes in probability with that of the prosecution. But where the evidence is clear,
cogent and creditworthy and where the court can distinguish the truth from falsehood,
the mere fact that the injuries are not explained by the prosecution cannot itself be a
sole basis to reject such evidence, and consequently the whole case. Much depends on
the facts and circumstances of each case. These aspects were highlighted by this
Court in Vijay Singh v. State of U.P., 1990 Cri LJ 1510.
CONCLUSION
117. Thus, none of the pieces of evidence relied on as incriminating by the courts
below, can be treated as incriminating pieces of circumstantial evidence against the
accused. Realities or truth apart, the fundamental and basic presumption in the
administration of criminal law and justice delivery system is the innocence of the
alleged accused and till the charges are proved beyond reasonable doubt on the basis
of clear, cogent, credible or unimpeachable evidence, the question of indicting or
punishing an accused does not arise, merely carried away by heinous nature of the
crime or the gruesome manner in which it was found to have been committed. Though
the offence is gruesome and revolts the human conscience but an accused can be
convicted only on legal evidence and if only a chain of circumstantial evidence has
been so forged as to rule out the possibility of any other reasonable hypothesis
excepting the guilt of the accused. In Shankarlal Gyarasilal (supra), this Court
cautioned -“human nature is too willing, when faced with brutal crimes, to spin stories
out of strong suspicions”. This Court has held time and again that between “may be
true” and “must be true” there is a long distance to travel which must be covered by
clear, cogent and unimpeachable evidence by the prosecution before an accused is
condemned a convict. [See Ashish Batham v. State of M.P., (2002) 7 SCC 317].
118. Before parting with the case, we would like to place on record an observation
of ours, touching an important aspect of the case. Without any hesitation and with
disappointment, we state that the case on hand is one of most perfunctory
investigation. It appears that the accused herein was provided with a legal aid. He
might not have been able to afford a good and experienced trial side lawyer to defend
himself. We have noticed that the cross-examination of each and every witness is
below average. Questions, which the defence counsel was not supposed to put to the
prosecution witnesses were put without realising or understanding the legal
implications of the answers to such questions, more particularly, when they were not
necessary. The defence counsel remained oblivious of the position of law that
suggestions made to the witnesses by the defence the answers to those are binding to
the accused.
119. Any defence counsel with a reasonable standing at the Bar is expected to
know that cross-examination is not the only method of discrediting a witness. If the
oral testimony of certain witnesses is contrary to the proved facts and if their
testimony is on the face of it unacceptable, their evidence might well be discarded on
that ground alone.
120. It is by far now well-settled for a legal proposition that it is the duty of the
court to see and ensure that an accused put on a criminal trial is effectively
represented by a defence counsel, and in the event on account of indigence, poverty or
illiteracy or any other disabling factor, he is not able to engage a counsel of his choice,
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