Silent Witness Theory to counter Hostile Witnesses: What Madras HC held in Dinakaran Newspaper Office attack

The Madras High Court on Thursday convicted ten persons, including a policeman, in the case concerning the 2007 Dinakaran Newspaper Office attack, which had cost the lives of three persons..The judgment was rendered by Justices PN Prakash and B Pugalendhi after the CBI, as well as the mother of one of the deceased, moved the High Court against the verdict of a Madurai trial court. The trial court had acquitted all the accused in the case..A newspaper poll taken by Dinakaran newspaper had indicated that MK Stalin, son of DMK patriarch and former Chief Minister M Karunanidhi, was viewed more favourably as Karunanidhi’s political successor compared to his older brother MK Alagiri. Incensed by the poll, Alagiri’s supporters wreaked havoc and set fire to the Dinakaran newspaper office building on the morning of May 9, 2007, leading to the death of three, Vinoth Kumar, Gopinath and Muthuramalingam..Following a detailed examination of the material on record, including visual evidence on CDs, the High Court eventually concluded that the trial court had erred in acquitting the ten accused. The High Court concluded,.“… we have no manner of doubt that the conclusions reached by the trial Judge are palpably erroneous and suffer from manifest perversity. We find that the learned Judge has perfunctorily rejected valuable material and has based his findings on an incomplete evaluation of the evidence on record resulting in total miscarriage of justice.”.Application of the Silent Witness theory after Human Witnesses turn hostile.Inter alia, the High Court relied on photographs and videos of the incident to set aside the trial court acquittal and convict the accused. To this end, the Bench relied on the silent witness theory, which has also been recognised in foreign jurisdictions, such as in the cases of State of Nevada v Archanian (2006) and Her Majesty v Jaiyhi He (2017)..“The theory proceeds on the footing that photographic and video evidence are ‘silent witnesses’ which speak for themselves. They are substantive evidence of what they portray,” noted the Court..The Court was constrained to base a large part of their conclusions on such evidence given that as many as 49 out of 83 witnesses in the case had turned hostile during the trial court proceedings. Among the hostile witnesses were 21 police officers, a revenue officer and 15 media persons, including colleagues of the deceased..Expressing its dismay at such a turn of events, the Bench observed,.“… we must perforce point out that this case bears an eerie similarity with Zaheera Habibulla Sheikh vs. State of Gujarat and others [(2004) 4 SCC 158], infamously called as the Best Bakery case… .All of the principal eye-witnesses, including the employees of ‘Dinakaran’ newspaper who witnessed the incident, turned hostile. The newspaper reporters and photographers, who were present on the spot, turned hostile. Several police officials, who had witnessed the incident, were turning hostile. Some of them who did not turn hostile, covertly supported the defence case in the cross-examination..This is, therefore, yet another case where the criminal justice system has been subverted and undermined by the scourge of witnesses turning hostile. Time and again, acquittals are obtained as vital witnesses turn turtle, abandoning their respective stands..We say, without fear of contradiction, that there can be no greater affront to our system of administration of justice than erroneous acquittals in criminal cases resulting from witnesses turning hostile. The very edifice of the criminal law is compromised when the enforcement machinery of the State is subverted and the perpetrators of crime walk out scot-free.“.In fact, the High Court even reproduced the hostile testimony on record to point out irregularities in the later statements of the hostile witnesses. The brazen inconsistencies in the testimony given by the hostile witnesses even led the Court to remark,.“Literally and allegorically, Muthupandian’s (P.W.2’s) above statement reminds us of the classical quote ‘Nero fiddled when Rome burned.’.Fortunately, Muthupandian (P.W.2) and the other colleagues of the deceased did not say that the trio [deceased] committed suicide by self-immolation in the Dinakaran newspaper office and that is why the office went ablaze..… all the policemen who had witnessed the occurrence turned completely turtle excepting Aaladiyan (P.W.1)… all the Pressmen, excepting Nakkeeran Kamaraj (P.W.26) and Nakkeeran Gopal (P.W.75), who wailed that the assault on the Dinakaran newspaper office was an assault on democracy and who shed crocodile tears over the bodies of the deceased, and who took out candlelight processions (which can be seen in the videos) have conveniently turned hostile. The deceased must be turning in their graves at the perfidy of their colleagues like Muthupandian (P.W.2).”.Hostile witnesses alone not an obstacle to appreciating evidence.Even though a large number of witnesses had turned hostile, the High Court proceeded to observe that the trial court was wrong to disregard the evidence unearthed by their testimony altogether, as well as the visual evidence on record. The trial court’s disregard of such evidence on technicalities was faulted. On this aspect, the Bench pointed out,.“In matters of appreciation of evidence, the Trial Court is not required to abandon common sense and persist in non-existent hyper-technicalities like a rudderless boat in an endless sea….… It is settled law that merely because the witnesses have turned hostile, their testimony need not be discarded in toto in view of Section 154(2) of the Indian Evidence Act, 1872, which came into force with effect from 16.04.2006. Even before its incorporation, the Supreme Court has held that the evidence of hostile witness need not be discarded lock stock and barrel and those portions which are all compatible with the case of the prosecution, can be relied upon. “.Notably, the judges themselves identified that the accused were involved in the acts of rioting and arson after cross-checking visuals recorded in the CDs with the accused who were made to present themselves before Court. The judges were prompted to undertake this exercise given that no witnesses came forward to carry out the identification. The trial court had disregarded the photographic and video evidence on the CDs for this reason. However, the High Court found the trial court’s approach on this aspect erroneous, remarking,.“Instead of making a witness look at the photograph and identify the person in the dock, nothing prevented the Trial Judge to use his own eyes to see the person standing in the dock and the person seen in the photographs/videos and arrive at a just conclusion..Perhaps, the Trial Judge was labouring under a belief that since the Goddess of Justice is a blindfolded lady with a physical balance in one hand and a sword in the other, he could follow suit and turn a Nelson’s eye to the electronic records that were before him. The trial judge could have very well used his own eyes to correlate the accused present before him with those found in the material objects.”.On Sentencing and Compensation.The Court proceeded to sentence nine of the accused convicted to life imprisonment for various offences under the Indian Penal Code (IPC) including murder, as well as offences under the Explosives Substances Act and the Tamil Nadu Property Prevention of Damage and Loss Act..The tenth person convicted in the case was Deputy Superintendent of Police, V Rajaram, who the Court found had aided the attackers instead of preventing the crime. As noted in the judgment,.“We are appalled to find from the photographs and the video footage that during the course of the incident, Rajaram (A17) went along with Attack Pandi (A1) as if he was giving him a police escort!!.… In our view, Rajaram (A17) could have easily prevented the arson and arrested Attack Pandi and his group, when they unabashedly went about committing cognizable offences right under his nose. He could have even opened fire in the air with his weapon to scare the arsonists. On account of his supine indifference and his wilful and intentional failure to prevent the attack or arrest the attackers, three precious lives were lost..In view of the same, the Court convicted Rajaram under Sections 217 (public servant disobeying a direction of law with intent to save person from punishment) and 221 (intentional omission by public servant to apprehend an offender) of the IPC. The High Court has ordered his presence before the Court next Monday to decide on the quantum of sentence to be imposed..Further, the Court has also ordered the State to pay the families of all three deceased a sum of Rs 5 lakhs each within three months for the supine indifference shown by the police in failing to protect their lives..The acquittal of seven others in the case was confirmed. Of the seven, one of the accused had died during the pendency of the case..Read the Judgment:.Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.