CHAUNA ORANG Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE case is entirely dependant on 'Circumstantial evidence' as opposed to what is styled as 'direct evidence'. 'Circumstantial evidence' ordinarily means a fact from which some other fact is inferred, whereas, 'direct evidence' means testimony given by a person as to what he has himself perceived by his own senses. All evidence is either 'direct' or 'circumstantial'. It will be noticed that direct evidence means 'direct assertion' whereas 'circumstantial evidence' means a fact on which an inference is to be founded. Direct evidence is the testimony of a witness to the existence or non -existence of a fact or facts in issue. By circumstantial evidence is meant the testimony of a witness to other facts i. e. facts other than those in issue which are of course relevent facts from which the fact in issue may be inferred. As to the admissibility both forms of evidence stand, generally speaking, on the same footing, and the testimony, whether the 'factum probandum' or the 'facta probantia' is equally as original and direct. In the abstract sense, direct evidence is of superior cogency in so far as it contains only one source of error, fallibility of testimony, whereas in addition, circumstantial evidence may suffer from fallibility of inference. But when circumstances connect themselves closely with each other, when they form a large and strong body, so as to carry conviction to the mind of a Judge, it may be proof of a mere 'satisfactory sort' than that which is direct. When the proof arises from the irresistible force of a number of circumstances which we cannot conceive to be fraudulently brought together to bear up one point that is less fallible than under some circumstances direct evidence may be. It is often said 'facts cannot lie' but men can. When we derive knowledge of a fact through the medium of a witness, the truth of the facts depends upon the honesty and truthfulness of the witness. Therefore, evidence which proves or tends to prove the factum probandum indirectly, by means of certain inferences or deduction to be drawn from its existence and its connection with other 'facta probantia', it is called circumstantial evidence. The force of the evidence does not depend merely on the credit attached to the 'factum prbbandam' but to the result which by a process of Reasoning it indirectly establishes in the mind of the Judge. It is sometimes styled as collateral evidence or presumptive evidence. When we infer or presume things from the collateral circumstance the nature of the evidence is styled as collateral evidence.

(2.) IT is a common fallacy to assert that circumstantial evidence is of an inferior and less safe quality than direct evidence. Of course, if direct, evidence is credible it is superior to any other class and more satisfactory to the judicial mind. However, it must be borne in mind how very easy it is to fabricate direct evidence, how simple a matter it is for a witness to swear falsely ''I saw 'X' dealing the fatal blow'. On the contrary a connected and consistent chain of circumstantial evidence can with difficulty be concocted: and the concurrence of many minute facts is often far more cogent than the oral testimony of a host of personal witnes - ses. It is often stated that circumstances cannot lie. It is also equally fallacious, as appears from every day's experience. Circumstances do lie most cruelly. The innocent often succumbs to the unfounded suspicions from circumstances which appear to tell strongly against him the true bearing which the accused has neither the opportunity, nor often the means to explain. The truth is that either kind of the evidence has its peculiar excellencies and defects. For the purpose of the case I enumerate the following rules governing admissibility and use of circumstantial evidence : Rule 1 : The facts alleged as the basis of any legal inference must be clearly proved and indubitably connected with the 'factum probandum'. Rule 2 : The burden of proof is always on the party which asserts the existence of any fact which infers legal accountability. Rule 3 : In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits. Rule 4 : In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt Rule 5 : If there be. any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.

(3.) THEREFORE , let me concentrate on the following : Whether (i) 'the lathi' was seized by the prosecution; (ii) it was in the possession of the police; (iii) it was produced and exhibited in Court; (iv) the lathi was sent to an expert for examination to establish that it was stained with human blood or blood. The indubitable prosecution case is that the lathi was seized from the accused, taken possession by the police and exhibited in court. However, the prosecution never made an effort to produce any evidence to establish that the staff was stained with blood and/or human blood. When the prosecution seized the lathi, had it in its possession but failed to prove that it had traces of human blood on it, the reasonable deduction is that the prosecution has failed to discharge its burden of proving the circumstances, which was entirely and exclusively upon it. It was obliged to establish that the lathi was the weapon of assault. The nature of the injury has been deposed by P. W. 1 Dr. N, C. Pegu. It appears from his evidence that the facial bones were fractured at several places by a crushing blow with a heavy weapon; left maxilla was fractured into two pieces which covered an area measuring 3' x 5' x 1 1/2', the nasal bone was fractured and left mandible was broken to pieces. That the injuries inflicted would have certainly left traces on the weapon of assault is beyond any doubt. On proof of the circumstance with the aid of the two elements the guilt of the accused would have been proved to the hilt. On the other hand, failure or neglect to prove the third element by the prosecution creates a void and the entire chain snaps. It is hardly possible, to draw a conclusion of guilt. The default of the prosecution can be said to be intentional and it must be held that the prosecution has kept back or withheld vital evidence. It is a vital omission on the Part of the prosecution from which a reasonable conclusion can be drawn that if the staff was sent to an expert, the result would have been in favour of the accused. I draw the conclusion that the failure of the prosecution to prove that there were traces of blood, hair or skin on the lathi, which the prosecution could have with a slightest effort established is a vital lacuna, destructive of the first two circumstances. It establishes that the lathi was innocuous and was not the weapon of assault. Therefore, the entire chain of circumstances is snapped and the conclusion of guilt of the accused cannot be brought home. The maxim 'res ipsa loquitur' (the thing speaks for itself) is directly applicable In the instant case. The circumstance that the accused was found immediately after the incident by the side of the accused (deceased ?) carrying a lathi which had no bloodstains speaks for itself that the lathi was not the weapon of assault. This fact negatives the culpability of the accused. The circumstance turns in favour of the accused. Standing at the place of occurrence with a lathi which was not the weapon of assault clearly establishes the fact that the accused did not deal the blow but someone did it with another weapon.