SC: Accused isn’t required to establish defence beyond all reasonable doubt.

Today, i.e. on 31.10.2018, in the matter of Reena Hazarika v. State of Assam, the Hon’ble Supreme Court held that whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated.

The Hon’ble Supreme Court also observed that:

Normally this court under Article 136 of the Constitution, would be reluctant in appeal to interfere with the concurrent findings of two courts by reappreciating the facts and evidence. But in an appropriate case, if this court finds that there has been erroneous consideration and appreciation of facts and evidence, leading to miscarriage of justice, this court is duty bound to ensure that ultimately justice prevails. It is a well-established principle of criminal jurisprudence that several accused may go free, but an innocent person should not be punished. (Para 7)

In a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. (Para 8)

Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act,1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given. (Para 8)

It is not uncommon human behaviour that on the death of a near relative, or upon witnessing a murderous assault, a person goes into complete silence and stupor showing no reaction or sensibility. Therefore absence of tears is not unnatural and is not sufficient to draw an adverse inference of guilt. (This inference has been drawn on the basis of Para 13)

Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the word ‘may’ cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing. (Para 16)

Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. (Para 17)

Copy of judgement: Judgement 31-Oct-2018

-Tushar Kaushik

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