DOUBT: The Additional District Judge in the Tarun Tejpal case gave him the benefit of doubt on the grounds that the evidence produced by the victim was not convincing enough.

By Adv Vinayak D Porob

The law is that any offense against an accused has to be proved beyond the shadow of any doubt. So much so if the proof is considered inadequate, as in the Tehelka case, the trial judge can acquit the accused. However, the State or the complainant here can go in appeal against the acquittal in a higher court right up to the Supreme Court.

In any criminal trial, the term convicted or acquitted is ultimate as the fate of the victim as well as the accused alleged to have committed the crime is dependent on these two words which are of great significance. Conviction in criminal cases is very hard fought for as criminal jurisprudence is governed by the principle that hundred guilty may go un-punished but one innocent person shall not be punished.

poor investigation

Acquittals in criminal cases are due to several factors and most crucial among it is the manner in which the investigation is carried out by the Police. The police officers enjoy unfettered powers in the process of investigation and the same is bestowed only with the intent that the police officer investigation a case shall not fall short in collecting evidence to prove the guilt of the accused while conducting investigation. The Investigating Officer is the captain of the ship during the course of investigation and is solely responsible to get the criminal investigation to its logical conclusion either by filing charge-sheet if there exists evidence or filing closure when there is no incriminating evidence against the accused alleged to have committed the offence. The investigating officer in the process of investigation can take all possible steps to collect evidence including arresting and subjecting the accused to custodial interrogation, Collection of Evidence which includes several aspects such as attachment and recovery of Weapons used in commission of the crime by drawing scene of offence or attachment Panchanama or disclosure Panchanama when the accused is under police custody, attachment of vehicles used by drawing attachment Panchanama, recording statements of eye witnesses and other witnesses, securing documents such as the medical certificates of the victims and /or autopsy reports in case of death of the victim and/or any other document etc.
The investigating officer is largely responsible for the final outcome of the criminal case investigated by him/her as any lapse in investigation, benefits and is to the aid of the accused who can take advantage of the lapses committed by the investigating officer to destroy the case of the prosecution. There are unintentional lapses in investigation perhaps due to lack of efficiency, knowledge, commitment or experience of the investigating officer, however in most of the cases the lapses are deliberate as they lack in integrity and honesty. Most of the police officers investigating serious and heinous offences are very well aware of the intricacies of criminal law and in many cases being managed by the accused and /or for being influenced by politicians intentionally carry out shoddy investigation by leaving loopholes for the accused to take advantage and to facilitate acquittals of the accused. The misdemeanor of the investigating officer in an investigation can be easily identified during trial as in most of the cases the investigating officer upon being managed by and for one reason or the other intentionally does acts in the course of investigation which are prejudicial to the investigation and subsequent trial to be conducted such as following improper procedure of arrest of the accused, not recovering the weapons used in commission of the offence, securing pancha witness who are of the choice of the accused and which pancha witnesses when examined during trial will turn hostile and deny the contents of the Panchanama etc.
Panchanama though is merely a record of what the panch sees and can be used as a record to refresh the memory of the panch witness when the panch witness steps in to the witness box and swears to what he has seen. However to prove an offence, the panchanama and the testimony of the pancha witness is as important as any other evidence in a criminal trial.
Evidence of eyewitnesses is very crucial to prove the guilt of the accused and criminal offences can be proved after trial in the courts either by direct evidence or by circumstantial evidence. Eye witnesses are those persons who have personally seen the incident /offence and can give a firsthand description of it in the court during trial. Direct evidence means examination of eye witness in support of the case of the prosecution to prove the guilt of the accused. Whereas in many cases when there are no eyewitness than under such circumstances, the guilt of the accused is to be proved by circumstantial evidence only and which should be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with the innocence of the accused.

unbroken chain

To prove offences by circumstantial evidence, the prosecution must prove all the circumstances connecting the unbroken chain of links leading to only one inference that the accused has committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances than the accused would be entitled for acquittal and hence proving the guilt of the accused by circumstantial evidence is very difficult. The last seen theory is a theory to prove a case on the basis of circumstantial evidence wherein the victim and the accused are seen together and after an interval of time the accused is found alive and the victim dead.
The accused to be convicted, the burden of proof lies on the prosecution to prove beyond reasonable doubt the guilt of the accused as there is a presumption of innocence in favour of the accused. To make things further difficult for the prosecution, there is a golden thread which runs through the web of administration of justice in criminal cases wherein if two views are possible on the evidence adduced in a case, one pointing to the guilt and the other to the innocence of the accused, the view which is favorable to the accused should be and is adopted and therefore many cases result in acquittal than in conviction of the accused.

public prosecutors

The role and responsibility of the Public Prosecutors conducting trial on behalf of the state is very crucial as the expected attitude of the public prosecutors while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial than the public prosecutors should not scuttle it but on the contrary should winch it to the fore and make it available to the accused even if the defence counsel has overlooked it and that is the reason why in heinous and serious offences a private counsel is not allowed free hand to conduct prosecution. The blame of acquittal should be casted on the investigating officer largely in most of the criminal cases and the public prosecutors should not be blamed as at least in the state of Goa, we are blessed to have very efficient and competent public prosecutors who only fall short most of the times due to the errors committed in investigation by the investigating officers and therefore it is for the lawmakers to answer the question whether acquittals in criminal cases are boon or a curse to the society?
The writer is a practicing criminal lawyer from Mapusa.