Non-examination of independent witness fatal to prosecution case: HC

Saurabh Malik

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Chandigarh, April 10

In a significant judgment, the Punjab and Haryana High Court has made it clear that the non-examination of an independent witness can prove fatal to the prosecution case registered under the provisions of the SC/ST Act.

Justice Harkesh Manuja ruled the burden to prove offending words was on the prosecution as its utterance in public view was a necessary condition. As such, an accused in the case under the SC/ST Act was liable to be given the benefit of doubt in the absence of an independent witness.

Accused liable to be given benefit of doubt

As utterance of such words in public view is necessary condition, the onus to prove the same was on prosecution and in the absence of any such testimony of an independent person, accused is liable to be given the benefit of doubt. —Justice Harkesh Manuja, Punjab and Haryana high court

Justice Manuja was hearing state appeal against Jhajjar Additional Sessions Judge’s order dated October 31, 2019, acquitting an accused after observing that the prosecution failed to prove its case beyond reasonable doubt.

An FIR in the matter was registered on March 14, 2018, for wrongfully restraining a person and other offences under Sections 323, 325, 341 and 505 of the IPC and the provisions of the SC/ST Act at Sadar police station in Bahadurgarh.

Justice Manuja’s Bench was told that the complainant, earning his livelihood by running a three-wheeler, alleged that the driver of another vehicle used castiest remarks following an issue over the parking of vehicles. The complainant at that time was ferrying passengers. It was also alleged that the complainant suffered injuries on hands and legs after the accused attacked him with an iron rod.

The state counsel, among other things, contended the accused was liable to be punished as derogatory comments were made at a public place and in public view. The prosecution’s failure to join the passenger was given undue weightage. It was practically impossible as passengers were not known to the complainant and it was the general tendency of public persons not to become witnesses. As such, it could not be fatal to the case.

After hearing the arguments and going through the documents, Justice Manuja asserted the court did not much substance in the state counsel’s arguments. The complainant’s stand was that two passengers were sitting in the auto rickshaw at the time of incident. But neither was this disclosed to the police in his complaint, nor was an effort made to record their statement to corroborate the case.

A strong presumption was raised that the offence under the SC/ST Act was not made out in the absence of an independent public person’s statement regarding the castiest remarks. “As utterance of such words in public view is necessary condition, the onus to prove the same was on prosecution and in the absence of any such testimony of an independent person, accused is liable to be given the benefit of doubt,” Justice Manuja asserted after taking into consideration the other facts as well.