"Though the Witness Protection Scheme has been evolved in the year 2018, still the system is not providing confidence to the witnesses to come out with the truth as against the hard-core criminals", observed the Madras High Court on Friday.
Justices T. Raja and B. Pugalendhi were pronouncing the judgment in an appeal by three against conviction for murder and sentence of life imprisonment.
Noting that all three eye-witnesses had turned hostile at the trial, the division bench appreciated that the Apex Court in Rizan v. State of Chhatisgarh [(2003) 2 SCC 661], has clearly held that in such an instance, it is the duty of the Court to separate the chaff from the grain. Where the chaff can be separated from grain, it would be open to the Court to convict the accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of accused persons.
"As stated in Rizan's case it is the duty of the Court to separate the chaff from the grain. While doing so, we could separate the truth from the falsehood of the appellant's case", said the bench, in upholding the conviction and dismissing the appeal.
The Criminal Appeal was filed against the conviction and sentence imposed by the competent Additional District and Sessions Judge on 19.01.2018. The appellants/ Accused Nos.1 to 3 were tried before the trial Court for the commission of offence under Section 302 r/w 34 I.P.C. and the trial Court found the 1st appellant/Accused No.1 guilty for the offence under Section 302 I.P.C. and the appellants 2 and 3/Accused Nos.2 and 3 for the offence under Section 302 r/w 34 I.P.C. and sentenced them to life imprisonment.
Before the High Court, it was pleaded on behalf of the appellants that there is no evidence as against the appellants and all the eyewitnesses, that is PW 2, PW 3 and PW 4, were treated as hostile and the complaint was lodged as against 3 unknown persons. Even in the F.I.R., the names of the appellants/accused are not mentioned.
Further, it was contended that the trial Court has relied upon the evidence of P.Ws.2 and 3, who were treated as hostile, to convict the accused and P.Ws.2 and 3 cannot be trusted for the reason that P.W.2 is a relative of the deceased and though he is said to have witnessed the occurrence, he has not stated the names of the assailants at the time of registration of the complaint. P.W.2 is also attestor of the complaint. P.W.3 in his evidence has categorically admitted that he cannot identify any of the accused, who were present before the trial Court and even then, based on his evidence, the trial Court has found the accused/appellant guilty.
OBSERVATIONS OF THE BENCH
"Since there is no protection in the present system for the witnesses, most of the trials ended in acquittal as the witnesses did not come forward to give evidence", noted the bench.
The Court continued to explain that as per the directions of the Apex Court, the Witness Protection Scheme, 2018 is evolved to give confidence to the witnesses to come forward to assist law enforcement and judicial authorities with full assurance of safety and aiming to identify series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property. The bench enumerated that Section 7 of the Scheme provides the following protection measures:
"7. Types of Protection Measures:
The witness protection measures ordered shall be proportionate to the threat and shall be for a specific duration not exceeding three months at a time. They may include:
a) Ensuring that witness and accused do not come face to face during investigation or trial;
b) Monitoring of mail and telephone calls;
c) Arrangement with the telephone company to change the witness's telephone number or assign him or her an unlisted telephone number;
d) Installation of security devices in the witness's home such as security doors, CCTV, alarms, fencing etc;
e) Concealment of identity of the witness by referring to him/her with the changed name or alphabet;
f) Emergency contact persons for the witness;
g) Close protection, regular patrolling around the witness's house;
h) Temporary change of residence to a relative's house or a nearby town;
i) Escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing;
j) Holding of in-camera trials;
k) Allowing a support person to remain present during recording of statement and deposition;
l) Usage of specially designed vulnerable witness court rooms which have special arrangements like live video links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness' voice, so that he/she is not identifiable;
m) Ensuring expeditious recording of deposition during trial on day to day basis without adjournments;
n) Awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of re- location, sustenance or starting a new vocation/profession, if desired;
o) Any other form of protection measures considered necessary."
In the facts of the present case, the bench noted that P.W.2 in his evidence has admitted that he knew the accused through P.Ws.3 and 5, who were also present in the occurrence place and when he was cross-examined on behalf of the accused. During cross- examination by the public prosecutor after he was treated as hostile, he admitted that out of fear on the accused he has not stated about the occurrence in the chief examination.
"P.W.2 has also expressed his fear in his cross-examination and admitted that only out of fear he turned hostile", noted the bench, adding that "P.W.2 was a palm tree merchant and P.W.3 is a grocery merchant in a small village and it is obvious for ordinary persons to be afraid to come forward to give evidence against the persons like the accused, among them the first accused is running a bar in a wine shop".
"The Hon'ble Apex Court in Rizan v. State of Chhatisgarh [(2003) 2 SCC 661], has clearly held that it is the duty of the Court to separate the chaff from the grain. Where the chaff can be separated from grain, it would be open to the Court to convict the accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of accused persons", appreciated the bench.
The bench further asserted that as stated in Rizan's case, it is the duty of the Court to separate the chaff from the grain, and "while doing so, we could separate the truth from the falsehood of the appellant's case".
The bench noted that though in the complaint, the names of the assailants are not mentioned, it is mentioned that three persons who came on a motorcycle committed the offence. But the complaint mentions the presence of P.Ws.2, 3 and 4. Further, P.Ws.2 and 3 have deposed during the cross examination that those accused were present in the place of occurrence and left the place of occurrence after commission of offence on the motorcycle and P.W.2 has specifically stated that these accused have indiscriminately cut the deceased with bill-hooks. P.W.4. though stated in the chief examination that he went along with P.Ws.2 and 3 to the place of occurrence, he stated that 3 persons were standing with a bike, but refused to identify the accused and in the cross- examination he also stated that those three persons left the place of occurrence in a motorcycle. These accused have surrendered before the Court on various dates and were taken in police custody by the investigation officer and the weapons were also recovered pursuant to their confession statements recorded in the presence of the Village Administrative Officer and the evidence of the Village Administrative Officer has established the recoveries from the accused. The Doctor who conducted the autopsy has also pointed out that injuries found on the deceased are possible through the weapons.
"Therefore, this Court finds that the prosecution has sufficiently established their case as against the appellants/accused beyond any reasonable doubt and the defence has not demolished the prosecution theory, hence there is no reason for this Court to interfere with the judgment of the trial Court", concluded the bench.
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