It is better that ten guilty persons escape, than that  one innocent  suffers: The Supreme Court of India
It may not be wise or prudent to convict a person only because there is rampant increase in heinous crimes and victims are often reluctant to speak truth due to fear or other extraneous reasons. The burden to prove the guilt beyond doubt does not shift on the suspect save   where the   law   casts   duty   on   the   accused   to   prove   his/her innocence. It is the bounden duty of the prosecution in cases where material witnesses are likely to be slippery, either to get their statements recorded at the earliest under Section 164 Cr.P.C. or collect  such other cogent evidence that its case does not entirely depend upon oral testimonies. The aforesaid has been established by the Supreme Court of India while adjudicating the case of Bijender v. State of Haryana [CRIMINAL APPEAL NO. 2438 OF 2010] which was decided upon by a single judge bench comprising Justice Surya Kant on 8th November 2021. The facts of the case are as follows. on 14th April 1999, at around 11:00 AM, Bal Kishan (Complainant) was on his way to Delhi on his motorcycle along with his nephew, Sanjay, to purchase a plot of land and was carrying a sum of Rs. 46,000/­ for the said purpose. When the Complainant reached near the farmhouse of one Virender Bansal,   on   Jatheri   Road,   he was intercepted by a   vehicle.   The Appellant and one   Manjeet   (co­accused)   stepped out of the said vehicle, armed with country-made pistols, and asked the Complainant to hand over the amount. The Complainant then handed over the key of the bike. The Accused took out the bag containing the money from the boot of the motorcycle and fled from the spot. Whereafter, the Complainant rushed towards the nearest Police Station on foot, leaving his nephew and the motorcycle behind, at the place of the incident. The Trial Court convicted the Appellant and Manjeet under Sections 392 &amp; 397 IPC. Manjeet was further convicted under Section 25 of the Indian Arms Act, 1959. Accused   Mukesh and  Subhash were also convicted under  Section 120B IPC. All the Accused were sentenced with a maximum sentence of rigorous imprisonment of 10 years each under Section 397 IPC and/or Section 120B IPC. However, the High Court reduced the sentence under Section 397 IPC to rigorous imprisonment of 7 years so as to meet the ends of justice. The court perused the facts and arguments presented. It was of the opinion that “ Unmindful of these   age­old   parameters,   we find that the  Prosecution in the present case has miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity. In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on the Appellant to elucidate how he bechanced to be in possession of the incriminating articles,   without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct. In light of the afore­stated discussion, we are of the considered opinion that the evidence on record does not establish the guilt of the appellant beyond reasonable doubt and the Courts below have arrived at   recording   the   guilt   of   the   Appellant   in   absence   of   any   cogent rationale, justifying his conviction.”
The instant Criminal Appeal emanates from the judgment and order dated 7th September 2009 of the High Court of Punjab and Haryana at Chandigarh whereby the order dated 20th March 2002 passed by the Additional Sessions Judge Sonipat convicting the Appellant­Bijender @ Mandar under Sections 392 and 397 IPC was imprisonment with a fine of Rs.10 000 ­ for the offence punishable under Section 397 IPC. Both the sentences were directed to run Briefly put the Prosecution version is that on 14th April 1999 at on his motorcycle along with his nephew Sanjay to purchase a plot of Bansal on Jatheri Road he was intercepted by a vehicle. The Appellant and one Manjeet stepped out of the said the boot of the motorcycle and fled from the spot. Whereafter the Complainant rushed towards the nearest Police Station on foot leaving his nephew and the motorcycle behind at the place of the the occurrence to him. Consequently an FIR was lodged and the was declared a proclaimed offender under Section 82 Cr.P.C. the Prosecution. No evidence was led by the Defence. The Prosecution presented its narrative before the Trial Court that the Accused persons along with Vinod conspired together to loot the Complainant Delhi. Whereas co­accused Mukesh and Subhash had provided the information the Appellant Manjeet and Vinod actually carried out the The case of the Prosecution banked heavily on the disclosure made pursuant thereto. The Appellant in his revelation in his deposition acknowledged Appellant in his presence. He further denied that the Accused including the Appellant matched the identity of the persons who committed the felony. He also denied that the recovery memo bore his signature. The Complainant’s nephew Sanjaywho was an eye­witness also debunked the very occurrence of the incident in its entirety and testified that no amount was snatched from his uncle the Complainant. In a similar vein PW­5 and PW­8 police and to the alleged conspiracy respectively also resiled and were and stood their ground qua the guilt of the Accused. In this regard including the Appellant and stated that the Complainant in his supplementary statement before the police had contended that Rs Manjeet had sought for Test Identification Paradewould be killed. H.C. Karmbir Singhwho was present with were the statements made by other co­accused under Section 313 The Trial Court found strength in the contention of the of the articles especially the ‘red cloth’ and the passbook which were guilt of the Accused. Consequently the Trial Court convicted the further convicted under Section 25 of the Indian Arms Act 1959 Accused Mukesh and Subhash were also convicted under Section of rigorous imprisonment of 10 years each under Section 397 IPC basis of disclosure statements. Upon re­appraisal of evidence the High Court was unimpressed by the plea raised on behalf of the Accused and concurred with the findings of the Trial Court and commission of the crime. The High Court vide a common judgment maintained the conviction of the Accused persons. Nonetheless the 11. We have heard learned counsel(s) for the Appellant and the depth. The principal contention raised on behalf of the Appellant is that his conviction is based solely on the basis of the ‘disclosure that during the pendency of the present appeal this Court in 2013 had already acquitted co­accused Mukesh and Suresh with a 12. Learned State Counsel on the other hand reminded us of the limited scope of interference by this Court in a case of concurrent the basis of his disclosure statement which led to the recovery of Rs 5 000 ­ along with the ‘red cloth’ and the Indian Bank passbook was sufficient to foster the conviction of the Appellant. Regarding the acquittal of the co­accused it was rebutted that the allegations qua them pertained only to the extent of conspiracy and hence their Appellant herein who is alleged to have actually carried out the yet while beseeching such powers in a criminal appeal by special re­appraisement of evidence and doubt the credibility of witnesses circumstances where the decision(s) under challenge are shown to 14. Adverting to the case at hand indubitably the only eye­ witnesses to the alleged crime i.e. the Complainantand his denied that the Appellant or his co­accused were involved in the execution of the offence. Further in the deposition of ASI Rajinder Kumarwho was the investigating officer of the case there is no mention of T.I.P. even attempted to be led in so far as the of the perpetrators stands obscured particularly considering that all the accused in the case were arrested on the basis of a secret 15. The short question that falls for our consideration thus is whether the conviction of the Appellant on the strength of the PD 2) in the absence of any corroborative evidence can sustain to sustain the guilt of such accused the recovery should be hasten to add that circumstances such as the period of interval between the malfeasance and the disclosure commonality of the recovered object and its availability in the market nature of the object and its relevance to the crime ease of transferability of the object the testimony and trustworthiness of the attesting witness Haryana3 State of Rajasthan vs. Talevar & Anr4 and Bharama Incontrovertibly where the prosecution fails to inspire to its nexus to the alleged offence the Court ought to stretch the persons escape than that one innocent suffer”. The doctrine of of a guilty person constitutes a miscarriage of justice just as save where the law casts duty on the accused to prove his her material witnesses are likely to be slippery either to get their statements recorded at the earliest under Section 164 Cr.P.C. or collect such other cogent evidence that its case does not entirely 19. Unmindful of these age­old parameters we find that the by irrelevant considerations such as the rise in the incidents of incriminating articles without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the Firstly the High Court and the Trial Court failed to take into consideration that the testimony of ASI Rajinder Kumar as well as Raldu have recovery memo on the other hand Raldu also exhibited documents nor did that he affirm to having his Fourthly the recovered articles are common place objects such as Investigating Officer Rajinder Kumar can also be easily of the alleged offence. We find it incredulous that the Appellant in his custody along with the money he allegedly robbed off the Sixthly and finally there is no other evidence on record which even view of the Trial Court and the High Court qua the alleged threat is Although the Prosecution has attempted to place reliance on the at recording the guilt of the Appellant in absence of any cogent 22. Consequently and as a sequel thereto the criminal appeal is allowed. The judgments and orders passed by the Trial Court and Bail bond if any stands discharged. 