Post-Mortem Report Can't Be Sole Basis For Conviction In Absence of Incriminating Legal Proof: High Court of Jammu & Kashmir & Ladakh

The Jammu and Kashmir High Court recently dismissed a criminal acquittal appeal, noting that the evidence of post-mortem report by no stretch of imagination can be made the sole basis for the conviction of the accused in the absence of legal proof against them.

A Division Bench of Justices Mohan Lal and Sanjeev Kumar held,

"In a criminal trial, it is the duty of the Court to ensure that mere conjectures or suspicion do not take the place of legal proof. Suspicion, however strong or probable it may be, is not a substitute for the legal proof required to substantiate the charges against the accused for commission of crime. It would be a travesty of justice to rely upon the suspicion/conjectures as adduced by the prosecution in a criminal case as the case in hand. From the prosecution witness, it is not clearly established that deceased was killed by the accused persons."

The development arose in a criminal acquittal appeal filed by the Govt of Jammu Kashmir against the judgment of the Sessions Judge acquitting the accused of the charges for offences under Section 302 read with 34 of the Indian Penal Code.

It had raised three grounds: (a) the judgment is contrary to law and facts, passed mechanically; (b) the Court has not appreciated prosecution evidence; (c) judgment is based on surmises and conjectures.

Government Advocate Suneel Malhotra urged, that the body of the deceased was having gunshot injuries and torture in the post-mortem report. The Court rejected this argument for being devoid of any legal force for the reasons that none of the prosecution witnesses examined have shown the involvement/complicity of the accused persons in the crime of killing of the deceased. In the absence of the same, the Court refused to rely only on the post-mortem report for conviction.

On hearing both sides, the Court summarised that the prosecution, to prove the charges against the accused, has relied on: (i) the direct evidence of eyewitnesses; and (ii) the circumstantial evidence of circumstantial witnesses.

In the course of the prosecution, the eyewitnesses to the occurrence resiled from their testimonies recorded during an investigation under Section 161 of the Criminal Procedure Code and have been declared hostile by the prosecution. In this regard, the Court noted,

"The critical analysis of the evidence of eyewitness to the occurrence depict that they were subjected to the grueling cross-examination by the defence, and all of them do not claim to have personally seen the accused persons committing the murder of the deceased. The evidence of the eyewitness when tested and evaluated in its entirety makes it abundantly clear that they have not witnessed the occurrence of killing of the deceased by the accused persons. There is no credible evidence to prove that the deceased was taken/ kidnapped by the accused persons and lateron killed in their captivity. The evidence of star eyewitness of the prosecution is, therefore, not trustworthy, reliable and admissible in evidence, and thus the probability of any other person coming in contact in the company of deceased cannot be ruled out."

On the testimony of close relatives of the deceased, the Court noted that it does not prove that they have seen the accused persons killing the deceased. It emphasized that when the prosecution cites the relatives as witnesses, they are the interesting witnesses and their evidence must be scrutinized with care, caution, and circumspection. It observed,

"The Court should be on its guard while evaluating the truthfulness or the creditworthiness of the testimonies of such interested witnesses."

It relied on the apex court decision in Rai Sandeep @ Deepu v. State of NCT of Delhi. The Supreme Court had held that the evidence of a sterling witness should be of very high quality and caliber, and their versions should be unassailable.

The Court held that there is no legal evidence on record to prove that the accused person is the mastermind of the murder of the deceased. There is not enough merit in the eyewitnesses, and the circumstantial evidence relied upon by the prosecution. It noted,

"Evidence of prosecution witnesses is, therefore, qualitatively and quantitatively insufficient to bring nexus between the accused persons and commission of the offences indicated against them. This renders the entire story of the prosecution as incredible and unbelievable in the manner projected.......It would be highly dangerous and hazardous to hold the accused persons guilty of offences alleged against them on the basis of weak, shaky and unacceptable evidence. The whole case of the prosecution, therefore, becomes doubtful."

Case Title: State of Jammu & Kashmir v. Swarn Singh @ Titti

Citation: 2022 LiveLaw (JKL) 4

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