The Special Court for Scheduled Castes and Scheduled Tribes in Kerala's Mannarkkad in Palakkad on August 20, Saturday, quashed the bail of 12 accused persons in the lynching of Madhu, a tribal youth from Attappady in the district. The court canceled the bail owing to a prosecution request that claimed that the accused had influenced the witnesses. Though it has come as a huge relief to the family of Madhu, several witnesses have turned hostile in the case and may affect the prosecution.
There are 122 witnesses in the case in total and 13 of them have turned hostile. “Witnesses turning hostile has been happening in India in scores of cases. This could be due to personal proximity to the accused, under the influence of money or due to threat. This naturally would affect the case," advocate PV Dinesh, a Supreme Court lawyer told TNM.
Madhu, a 30-year-old youth of Chindakki tribal hamlet in Attappadi was lynched by a mob on February 22, 2018. They had accused him of stealing rice from a grocery shop. The trial in the case began on June 8 this year at the Special Court. The court had suspended the trial on August 10 after the prosecution sought the cancellation of bail granted to the accused.“The witnesses in a case initially give statements before the police. The prosecution relies on these statements given by the witness to the police. A witness turns hostile when they submit during the cross examination that they had not told the police so. This would naturally affect the case," Dinesh added.
Boris Paul, a lawyer based in Kollam said the court always considers the statement that the witnesses give at the court as evidence, not the one given to the police. “The prosecution in this case should have anticipated this (of witnesses turning hostile) and should have ensured that the witnesses provided statements fearlessly at the court. The prosecution can still cross examine the witnesses. The court may use the statement, if anything substantial comes out during cross examination, in the case as evidence in the case,” he added.
The trial also witnessed the resignation of public prosecutors. A new public prosecutor, Rajesh M Menon, was appointed on June 25. He replaced special public prosecutor C Rajendran. Madhu's mother Malli had submitted a petition to the Director-General of Prosecutions seeking to remove Rajendran after the family feared that his conduct may affect the prosecution chances in the case.
Dinesh continued: “The judge can go only by the statements or evidence – documentary as well as oral evidence. In cases like this there won't be a lot of documentary evidence making oral evidence more important. When the witnesses turn hostile, what would be the oral evidence left to convict a person? There will be an absolute lack of evidence unless the judge feels that the witness is acting under dictation or acting under pressure. The prosecution can still cross-examine a witness and elicit information regarding why the witness turned hostile. Also, hostile witness evidence can also be considered with a lot of caution and corroboration”.
The cancellation of the bail granted to the accused has however come as a solace to the family.
"We are happy that the court canceled the bail. We are hopeful that the rest of the accused won't turn hostile," Sarasu said.
The family believes that the witnesses turned hostile under the influence of the accused. Chandran, a close relative of the family, had also turned hostile. "It was a shock when he too turned hostile. The accused influenced the witnesses giving money and even dictated to them for doing so by meeting them at Mukkali (the main town near Attappadi)," she alleged. She thanked Rajesh Menon for taking the efforts to cancel the bail of the accused.
The family, however, is hopeful that they will get justice.
Watch Madhu’s mother Malli’s interview to TNM