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Evidence Act – Test to determine whether recovery is from an open place.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. Vinod Chandran M.R. Anitha, JJ.
Crl.A. No. 141 of 2017; 1 July, 2021
Against the Order / Judgment in SC No. 245/2011 dt. 25.01.2017 of Additional Sessions Judge I Kasaragod CP 28/2011 of Judicial Magistrate of First Class -I, Hosdrug, Kasargod

MTP MUHAMMED FAISAL @ FAISAL

Vs.

INSPECTOR OF POLICE

By Advs. Sunny Mathew, C.K. Sreedharan; Senior Government Pleader S.U. Nazar

J U D G M E N T

Vinod Chandran, J.

Pliable and prevaricating witnesses question the credibility of the criminal judicial system and test the skill of adjudicators and stretch their patience to breaking point. An inept prosecution and an equally abject defense does not serve the cause of justice delivery; which problems are at times compounded by an indifferent Court. The trial of a seemingly open and shut case, of a murder committed in the open and in public view has been complicated by witnesses of the aforementioned category. An enquiry into whether it is on purpose or on threat or purchase, obviously is beyond our ken. But all the same, we have to sift the grain from the chaff and find out the truth as discernible from the evidence on record.

2. The appellant-accused, according to the prosecution, stabbed the deceased on account of the latter having taken up cudgels against the illicit liquor sale conducted by the former. The immediate provocation is also alleged to be a shove delivered by the deceased to the accused, on his approaching a fast food shop wherein the accused was also present. The accused took the knife kept in the fast food shop and stabbed his alleged enemy to death.

This was in the presence of other customers and the fast food shop owner. The accused also injured PW1, who gave the First Information Statement, in the scuffle that ensued. The victim succumbed to his injuries and the appellant was booked as the aggressor-accused.

3. In the trial, PW1 to PW14 were examined and Exts.P1 to P20 were marked. Material objects MO1 to MO7 were also produced and marked. The learned Sessions Judge on the basis of the evidence led, which included the recovery of the weapon and the dress worn by the accused as also the report of the Forensic Science Laboratory (FSL), convicted the accused and sentenced him to undergo rigorous imprisonment for life, for the commission of offence punishable under Section 302 of the Indian Penal Code, pay an amount of Rs.3,00,000/- (Rupees Three lakh only) as fine with default sentence of RI for 2 years. He was further sentenced to undergo RI for a period of 3 years and to pay a fine of Rs.10,000/-(Rupees Ten Thousand) with default sentence of RI for 6 months for the offence punishable under Section 324 of IPC. If the fine amount is remitted or recovered, it was to be disbursed to the wife of the deceased Babu as compensation U/s 357(1)(b) of Cr.PC. The sentences aforesaid were directed to run concurrently.

4. Sri.Sunny Mathew, learned Counsel appeared for the accused and Sri.S U Nazar, learned Senior Public Prosecutor appeared for the State. On behalf of the accused it was argued that there is absolutely no evidence to convict him. PW1 2, who were arrayed as eye-witnesses turned turtle in cross-examination and gave an entirely different version of the incident. Though they were declared hostile and cross-examined by the prosecution, it was not done in the manner known to law. In fact the Court should have found that both the said witnesses were unbelievable and eschewed their testimonies from consideration. [2015 (9) SCC 588 Mishra v. State of Utharakhand] was relied on to challenge the manner in which the witnesses were examined after declaring them to be hostile. The contradictions put to PW1 was from the FIS and not from the Section 161 statement. The contradictions were not marked either by the prosecution or by the Court nor were these contradictions proved by putting those to the Investigating Officer. There is hence no proof of the statements recorded by the Police under Section 161. [AIR 1976 SC 294 Sat Paul v. Delhi Administration and 1976 AIR 202 Bhagwansingh v. The State of Hariyana] were relied on to argue that the witnesses stood thoroughly discredited. The finding of the trial Court that PWs 1 2 corroborate each other cannot at all be countenanced when the evidence relied on is of the same brand or suffered from the same infirmity, as held by a Division Bench of this Court in [1985 KLT 198 Kunjappan v. State of Kerala].

5. It was also argued that the FIS is not the first statement given by PW1. In cross-examination he had specifically admitted to have been taken to the hospital, after the incident, by the Police, from his house from where he had given a statement to the Police. The said statement has been suppressed and it leads to a presumption that the story in the FIS is one concocted by the Police. As far as the recovery is concerned, the learned Counsel assails it on three counts. PW1 in cross-examination by the defense stated that he had seen the knife on the very next day of the incident. PW8, the Doctor, had also spoken of the Police having shown him the knife, which could only be during the postmortem examination, which occurred on 27.10.2010. The recovery itself was after that on 01.11.2010. Further, in P3 seizure mahazar the recovery is not seen to have been carried out from a place of concealment. The knife was recovered from an open place from under a coconut tree; kept without concealment ie: not buried nor even concealed among dry leaves or such. Reliance is placed on [Shivnarayanan v. State [NCT of Delhi] 93 2001 DLB 681] to bring home this point. Recovery in any event has been declared to be a weak piece of evidence by the Hon’ble Supreme Court in [2008 (1) Crimes 174 (SC) Moni v. State of Tamilnadu]. On the motive the prosecution has two stories; one, of the appellant having dealings in illicit liquor which was objected to by the deceased and then, the shove delivered to the accused just prior to the incident. As far as the dealings in illicit liquor, there is absolutely no evidence led by the prosecution but for the oral testimony. The shove, projected as an immediate provocation, is not sufficient cause for murder. There was no premeditation alleged even by the prosecution and the motive falls to the ground. The learned Counsel would argue that the evidence is not sufficient enough to prove the case against the appellant beyond reasonable doubt. The totality of the circumstances as can be detected from the evidence only raises a suspicion which falls short of a valid ground to convict for murder.

6. Sri S.U. Nazar arguing for the State vehemently opposed the contentions raised in appeal. The learned Prosecutor would argue that in fact there was no requirement to declare the witnesses hostile since on material particulars, there was no departure in cross-examination of PW 1 2. The presence of the accused and the deceased as also the witnesses are admitted. The death caused by injuries suffered at the scene of occurrence also is admitted. What is resiled from is the evidence regarding infliction of injuries, which at the earlier point; both the eye-witnesses spoke in tandem with the FIS and Section 161 statements. Even if the testimony after declaration of the witnesses hostile is eschewed for reason of the contradictions having been not proved through the Investigating Officer; the Court has to weigh the evidence led in chief examination and the departure made in cross-examination. It is pointed out that the learned Counsel for the accused before the Trial Court had submitted no cross immediately after the chief examination. PW3 too was then examined. Only after that PW1 2 were recalled for cross-examination. The testimony from the delayed crossexamination also indicates a clear tutored version. The witnesses at that point speak of the dress worn by the accused to challenge the recovery and also PW1 makes the further statement that the knife was shown to PW1 immediately on the next day. This was purposefully brought out to discredit the recovery. Reliance is placed on [2012 KHC 312 (Vyasan v. State of Kerala)] and [2012 KHC 4317 (Ramesh Harijan v. State of U.P.)] to contend that the material particulars spoken of by even a hostile witness can be looked into. [2011 KHC 4008 (Himanshu @ Chintu v. State of NCT of Delhi)] and [1999 KHC 1451 (Kollilakhmandhai Chanabhai v. State of Gujarat)] were also relied on along with [2014 KHC 4397 (Paulmari v. State of Tamilnadu)]. It is further pointed out that the mention of the torch in the FIS, which stood recovered from the crime scene adds veracity to the FIS and the chief-examination as does the wound certificate of PW1 too.

7. The learned Prosecutor would on the same count urge us to look at the documents, which offer corroboration to the testimony in chief examination. PW1 is an injured witness and there is a built in guarantee that he would be deposing the truth, in this case at the first instance, when he was examined in chief. Ext.P11 is the Wound Certificate, which names the accused as the person who caused the injury. This clearly indicates that PW1 resiled from his earlier version on either promised gratification or threats levelled. The motive as is trite is not an essential requirement, when there are eye-witnesses. The prosecution also does not have a case of premeditation, but the shove delivered brought forth the earlier enmity, which resulted in the stabbing of the deceased by the accused. There can be no argument raised of a sudden provocation, since as rightly put forth by the learned Counsel, a mere shove is insufficient to evoke designs of murder. What goes on in the inner recesses of the human mind will not be available to the prosecution and the innocuous shove could have regurgitated prior animosities. The repeated stabbing, that too without any sufficient provocation, reveals healed wounds having been reopened. The learned Prosecutor would point out that, accepting the contention of the accused that there was no sudden provocation, would only dis-entitle the accused from claiming any benefit of the Exception under Section 300. The learned Prosecutor would seek the conviction to be affirmed.

8. Before we go to the appreciation of evidence, we would first briefly refer to the evidence led in trial. PW1 gave the FIS, Ext.P1. As per the FIS, which was given at 11.45 p.m on 27.10.2010 the incident happened around 8.30 p.m. PW1 was waiting for an omelet, for which he placed an order at the fast-food joint owned by PW2, wherein the accused was also present. The deceased, who was running a miscellaneous shop nearby came to the joint and he too ordered an omelet. On his entry, he shoved the accused, who was standing nearby, with his shoulder, when the accused grabbed a knife at the shop and stabbed the deceased two or three times. PW1 intervened, at which point the accused stepped down to the court-yard and from there, when a stab was aimed at the deceased, it mistakenly graced PW1s left knee. PW1 too then stepped down to the road and saw the accused again repeatedly stabbing the deceased. The deceased cried for help of PW1 and collapsed on the veranda, wherein the fast-food joint was functioning. PW1, after the incident, ran to the nearby house, bandaged his leg and returned home. Later he proceeded to the Life Care Hospital for treatment of his injury. While he was at the hospital, the deceased was brought there, dead and then taken to the Medical College Hospital mortuary. He spoke of having knowledge of an earlier animosity between the accused and the deceased.

9. PWs 1 2, the first informant and the owner of the fast-food joint, in chief examination supported the prosecution to the hilt. PW1 and PW2 were examined in chief on 14.07.2014 but then subjected to cross-examination on 23.08.14. On conclusion of chief examination of PWs 12 it has been recorded as ‘no cross’. Learned Counsel for the accused took us through the proceedings sheet to urge that in all possibility there would have been some inconvenience on the part of the defence and though the witnesses were crossexamined after 1½ months, summons was issued, recalling them just after a week as seen from the proceedings sheet. There is also no application for recall of witnesses referred to. We will deal with the said question a little later.

10. In cross-examination both PW1 PW2 gave a different story. Though the presence of all involved were admitted, it was stated that on the crucial day and time there was a commotion in front of the nearby toddy shop and the deceased was seen quarreling with a group of people assembled in front of the toddy shop. The deceased then came to the fast-food joint followed by 8 to 10 people. The deceased stepped on to the veranda and asked for an omelet, which PW2 immediately offered. However the deceased abused PW2 and refused to take the omelet, upon which the persons gathered there questioned the deceased. This resulted in a scuffle and later the deceased was seen running into the veranda of the fast-food joint saying that he was stabbed. PW1 also stated that, in the scuffle he too suffered injuries. The essential departure from the earlier deposition was that PW1 said he had not seen the accused stabbing the deceased. He also deposed that after he reached home the Police came and recorded his FIS and took him to the hospital. He denied having given any statement at the Police Station on the night of the incident. The cross-examination of PW2 also proceeded on the same lines.

11. Both the witnesses were allowed to be questioned by the prosecution, as in cross-examination. Here we find serious infirmity; for which both the prosecution and also the Court was responsible. The contradictions confronted to PW1 were from Ext.P1, FIS, which cannot be faulted. As far as PW2 is concerned, there is no recital as to the source from which the contradictions were put to the witness and there was no marking of the various contradictions. The source obviously was the 161 statement which Court cannot look into. In the context of the contradictions having not been extracted in its entirety or marked, we are disabled from knowing the exact nature of such contradictions, since we will have to read the entire statement to find out the portions recorded in the deposition; with dots in between the the first and last words. As submitted by the learned Counsel for the accused, the contradictions elicited from PW1 PW2 were also not put to the Investigating Officer, who was examined as PW13, who took the Section 161 statement.

12. Reverting back to the evidence, PW3 is the mahazar witness of Ext.P2 scene mahazar, wherein he identifies inter alia MO3 torch taken from the scene of occurrence. PW4 witnessed the S.27 recovery (Ext.P3 seizure mahazar) of a blue jeans and a slate coloured shirt worn by the accused and marked them as MO6 MO7. PW5 is witness to the inquest report, Ext.P5 and PW6, is a relative of the deceased who identified MO5 saffron colour dhothi and coffee coloured shirt of the deceased again marked as MO7. Here we have to notice that there is a confusion about MO7 which different witnesses identified as that belonging to the deceased and the accused. The trial court has not relied on the recovery of MO7 as that of the accused. MO1 is the knife, the weapon used to stab. PW7 also identified MO5 and MO7 as the dress worn by the deceased and was a witness to Ext.P6. PW13, Investigating Officer identified both shirts but thus were both described as MO7, in the deposition.

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13. PW8 is the Doctor who conducted the postmortem on 28.10.2010. There were altogether 20 wounds of which injuries No.1, 4 to 18 were either incised or cut injuries. The other four were aberrations. The expert opinion was that the deceased died out of penetrating injuries to chest involving lung and aorta. Injury Nos. 9 to 12 and 16 were independently sufficient to cause death in the ordinary course of nature and the aberrations according to the Doctor would have been caused when the person fell. The fatal injuries were opined to be caused by a sharp edged weapon, similar to MO1. The medical evidence established that the death was a homicide with fatal stabs on the body by a sharp edged weapon.

14. PW9 is an official of the local body who marked the ownership certificate of the shop at the scene of occurrence and PW10 Village Officer who prepared the eye sketch of the site produced as Ext.P9. Ext. P9 clearly indicates that the mobile fast food joint was on the veranda of the building and Ext.P2 Scene Mahazar speaks of the veranda having two steps to get down to the road. This establishes that the veranda is at a higher level from the road. PW11 is the Sub Inspector who recorded FIS and registered FIR; Ext.P1 and Ext.P10. Though he admitted that he had gone to PW1’s house at 9.30 p.m; he denied the suggestion that he had recorded a statement at the house of PW1. PW12 is the Medical Officer of Life Care Hospital who marked Ext.P11 wound certificate of PW1. PW13 is the Investigating Officer and PW14 the Inspector of Police who marked Ext.P20 Chemical Examination report and filed a charge sheet before Court.

15. [In 2015(9) SCC 588 (V.K. Mishra v. State of Uttarakhand)], the Hon’ble Supreme Court, as argued by the learned Counsel for the accused, explained the procedure for contradicting witnesses with his previous statement reduced into writing, under S.145 of the Evidence Act. The portion of the statement recorded under S.161 has to be shown to the witnesses and this should reflect in his cross-examination by way of reproduction in the deposition. If the witness admits that portion, it stands proved and if it is denied the reproduced portion in the deposition has to be proved by putting it to the I.O who would confirm such a statement having been made to the Police. In the present case, we see that PW1 was confronted with his statements in the FIS and there is nothing indicated in the deposition of PW2 as to the source of the statements confronted to the witness. We also notice that the learned Sessions Judge has not marked any of these portions. Marking of such portions may not be compulsory when such portions are reproduced in its entirety. For convenience, often the first and last words of the particular statement/s are reproduced with dots in between and that portion marked in the S.161 statement. Here not only was the marking omitted but the statements were not reproduced in its entirety. I.O was also not confronted with any of these statements.

16. As for the manner in which contradictions are to be marked and proved we refer to two decisions of this Court which alerted the trial judges more than three decades back. 1988(1) KLT 256 George vs. State held so:

“7. The learned Special Judge seems to be unaware as to how statements under S.161(3) Crl. PC. will have to be used for contradiction. The exact portions sought to be contradicted must be put to the witness and recorded in the deposition and it will have to be marked subject to proof by the investigating officer. Then it must be put to the investigating officer and proved. The Special Judge has not at all recorded the C D. statement and there is nothing to show which portion of the statements were confronted”.

17. His Lordship, S. Padmanabhan, J. sitting in a Division Bench reiterated so in [1989(1) KLT 956 (Imbayi vs. State)]:

“6. If we go by the evidence of PWs.2, 4 and 10, there was only one incident which is the first one admitted by the prosecution. It is true that they are hostile witnesses interested in the appellant. But they were not confronted, contradicted or discredited with the statements given by them under S.161 of the Code of Criminal Procedure. The prosecutor seems to have resorted to an unusual and irregular method, in violation of S.162, to get the entire case diary statements of these witnesses marked en bloc as Exts.P2, 3 and 7 without any objection from the court or the defence counsel. The case diary statements in full were not incorporated in the depositions. Instead, the beginning and end were put in inverted comas with dotted lines in between. Case diary statements contain contradicted and uncontradicted portions. The portions sought to be contradicted were not put to the witnesses. They were not duly proved by putting to the investigating officer also. Instead, he was made to swear generally that they said “as stated in Exts.P 2, 3 and 7”. Neither S.162 of the Code of Criminal Procedure nor S.145 of the Evidence Act was complied with in form. But it cannot be said that there was no compliance in substance or that prejudice resulted. This court had occasion to remind judicial officers of the irregularity of resorting to such method of whole-sale marking of case diary statements. What is required to be done is when a witness is called for the prosecution in the inquiry or trial consequent on the investigation during which his statement is recorded under S.161 and when occasion arises, any part of his statement necessary should be put to him for contradiction as provided in S.145 of the Evidence Act and duly proved through the investigating officer who recorded the same. The witness must get an opportunity of admitting or denying that statement or to give his own explanation which will have to be considered by court. If denied the statement will have to be duly proved also. Then only it becomes admissible though the admissibility is only to be used for contradicting,discrediting or considering the veracity of that witness and not otherwise to be used as substantive evidence. A contradicted and denied statement, even if duly proved, cannot be used as substantive evidence against the accused.

[underlining by us for emphasis]

18. We have here, a more peculiar situation in so far as the prosecution having not put the statements, the witnesses were confronted with, even generally to the prosecution. The prosecution though having attempted to cross-examine its own witnesses, it was not done effectively nor were the statements proved. However, as the learned Prosecutor submits, there was no requirement for putting the entire statements made by the witnesses to the Police, since the relevant departure was only with respect to the infliction of injuries on the deceased. Both the witnesses in chief-examination spoke in tune with the FIS as per the prosecution case, of having seen the accused inflicting the injury on the deceased. In cross-examination by defence, there were some embellishments made, not seen from the FIS. This involved a quarrel having commenced in front of the toddy shop, which continued in front of the fast-food shop, in which the accused suffered injuries. Both the witnesses feigned ignorance as to the infliction of injuries, in the process, speaking in favour of the accused, in crossexamination. They have no explanation as to why they spoke otherwise in chief-examination nor was any question put by the defence as to why such a departure was made or even as to why they admitted to seeing the crime proper in chief-examination.

19. As far as PW1 is concerned, he does not deviate from the fact that he had signed Ext.P1. But his contention is that he had made the statement at his house, which the defence argues has been suppressed. Again pertinently, the defence does not put any question as to the contents of his statement allegedly made to the Police earlier to Ext.P1; which he asserts in cross-examination to have been made at his residence on the previous night, immediately after the incident. The accused would urge that the different versions given in cross-examination by the two eye-witnesses absolves the accused. It is also argued, in any event the deposition of witnesses who were declared hostile should be totally eschewed as being unbelievable. The State however argues for the position that there is only one crucial departure with respect to the infliction of injuries and the FIS as also earlier statements are in tune with what has been stated in chief-examination. It is for this Court to look at the different versions and decide on the genuineness of either of those versions, with corroboration from other materials.

20. The State has, with genuine concern, pointed out the delay in cross-examination of PW-1 and PW-2. The accused rubbishes the delay as merely due to the inconvenience of his lawyer. The further delay caused, as is evident from the proceedings sheet available in the files produced, was by reason of the witnesses themselves seeking for adjournment, argues the accused. We see an application filed by the Advocate for the accused in the trial court on 14.07.2014, requesting an adjournment on the ground that he is engaged in a case before the High Court of Kerala. The said application was rejected for reason of the trial having already been scheduled. On the very next day, a copy application to receive the certified copy of depositions of PWs.1 and 2 has been filed, again signed by the Counsel for the accused. Later, an application has been filed on 22.07.2014 citing the very same reason in the application for adjournment, seeking recall of PWs 1, 2 4, which was allowed. There is thus an application filed for adjournment, which was rejected and one filed for recall of the witnesses, which was allowed. None of these have been recorded in the proceedings sheet by the learned Judge. Be that as it may, we cannot simply brush aside the delay. We notice the decision of the Hon’ble Supreme Court in 2017 (1) SCC 529 Ramesh vs, State of Haryana where the Hon’ble Supreme Court termed one of the reasons for witnesses turning hostile as a ‘culture of compromise’.

21. Ramesh(supra) was a case in which the accused husband and in-laws were acquitted of the charge of wife burning, wherein the brother and father of the deceased turned hostile and the brother provided an alibi to the husband. The Hon’ble Supreme Court while affirming the reversal of the order of acquittal, by the High Court, found that the witnesses turning hostile is now a common phenomenon and a regular feature in criminal cases. Reasons were enumerated with reference to decisions, Krishna Mochi vs. State of Bihar (2002) 6 SCC 81 [decline of ethical values and threats levelled],Zahira Habbibulla Sheikkh (5) vs. State of Gujarat (2006) 3 SCC 374 [negligence, ignorance or corrupt collusion], Sakshi vs. Union of India (2004) 5 SCC 518 [extreme fear on the mere sight of the accused], State vs. Sanjeev Nanda (2012) 8 SCC 450 [monetary consideration or other tempting offers], Manu Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1 [inducement, intimidation and other manipulations] and additionally the hassles of a protracted trial too was noticed. Quoting Bentham: “Witnesses are the eyes and ears of justice”, it was lamented that if they turn blind and deaf, then the trial gets putrefied and paralyzed and is completely devoid of fairness. Reference was also made to an article ‘Courts of Law and Legal practice’ by Daniela Berti in which the motivation to turn hostile was stated to be compensation, threat or blackmail.

22. We also refer to the following passage from Sanjeev Nanda (supra):

100. This Court in State of U.P. v. Ramesh Prasad Misra(1996) 10 SCC 360[State of U.P v. Ramesh Prasad Misra another] held that it is equally settled law that the evidence of a hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Supt. of Police(2004) 3 SCC 767[K. Anbazhagan v. Superintendent of Police and others], this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole, with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.

[underlining by us for emphasis]

23. We also have to necessarily look at the decisions, on how the evidence of the witnesses declared as hostile has to be appreciated; which as per the above extract has only to be ‘subjected to closest scrutiny’ and what is ‘credit worthy, accepted with due caution’. The accused has placed before us the decision of the Hon’ble Supreme Court in Sat Paul[AIR 1976 SC 294] to urge that both the said witnesses are discredited and as a matter of prudence their evidence has to be discarded in toto. On a reading of the decision we are afraid that the dictum is otherwise. The Hon’ble Supreme Court, in the cited case, considered in detail the question as to how the evidence of a so called ‘hostile’ witness has to be appreciated. The Hon’ble Supreme Court was considering a case where the appellant was said to have taken a bribe on the basis of the evidence of persons, who were earlier booked under the Suppression of Immoral Traffic Act. The appellant was an Assistant Sub Inspector in the Railway Police and the incident arose allegedly with the detention of PW1, from the Railway Station, where he was found loitering without cause. The minor discrepancies and improbabilities in the evidence of witnesses, though normally found to be of little consequence; in the context of the subject persons being discredited persons with suspicious antecedents their dispositions were held liable to pass the test of severe scrutiny. There is no such ground arising insofar as the witnesses in this case. It was also found that PWs.3 4 therein, independent witnesses, did not support the prosecution.

24. The Supreme Court, in considering the admissibility of evidence of the independent witnesses, raised the issue as to whether the Court could validly pick out tiny bits from their evidence and use the same to support the prosecution case. On a detailed consideration, it was held that the terms ‘hostile witness’, ‘adverse witness’, ‘unfavourable witness’, ‘unwilling witness’ are all terms of English Law, the admissibility of whose evidence, has given rise to considerable difficulty and conflict of opinion in England. In India, as per the Indian Evidence Act, 1874, the grant of permission to cross-examine one’s own witness is not conditional on the witness being declared ‘adverse’ or ‘hostile’. The grant of permission under Section 142 to put leading questions or the leave granted under Section 154 is entirely at the discretion of Court. Relying on [AIR 1922 PC 409 (Vaikundha Nath v. Prasanna Moyi)] it was held so in Para 37 with emphasis: The discretion conferred by Section 154 on the court is unqualified and untrammeled, and is apart from any question of “hostility”. It is to be liberally exercised whenever the court from the witness’s , demeanour temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, think that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as “declared hostile”, ”declared unfavourable”, the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion and conflict that had so long vexed the English Courts.

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25. The Hon’ble Supreme Court also noticed certain decisions of the Calcutta High Court interpreting and applying Section 154 with reference to the meaning of the term ‘adverse’ as available in the English decisions. It was found that those decisions enunciated the proposition that when a party calling a witness requests the Court to declare him hostile and cross-examines him with leave of Court, his evidence has to be excluded altogether in criminal cases. While expressing a caution in importing, without due discernment, the principles enunciated in ancient English decisions for interpreting and applying the Indian Evidence Act, the decision of a Full Bench of the Calcutta High Court in [AIR 1931 Cal 401 (Prafulla Kumar Sarcar v. Emperor)] was approvingly cited, which overruled the earlier decisions of the Calcutta High Court. Disapproving the earlier decisions, the Hon’ble Supreme Court itself held so in paragraph 41, 42, 43 44:

41. The fallacy underlying this view stems from the assumption that the only purpose of cross-examination of a witness is to discredit him; it ignores the hard truth that another equally important object of crossexamination is to elicit admissions of facts which would help build the case of the cross-examiner. When a party with the leave of the court confronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is not deliberate but is due to faulty memory or a like cause, there is every possibility of the witness veering round to his former statement. Thus, showing faultiness of the memory in the case of such a witness would be another object of cross-examining and contradicting him by a party calling the witness. In short, the rule prohibiting a party to put questions in the manner of crossexamination or in a leading form to his own witness is relaxed not because the witness has already forfeited all right to credit but because from his antipathetic attitude or otherwise, the court feels that for doing justice, his evidence will be more fully given, the truth more effectively extricated and his credit more adequately tested by questions put in a more pointed penetrating and searching way.

42. Protesting against the old view of the Calcutta High Court in Sohrai Sao v. Emperor, ILR 9 Pat 474 = (AIR 1930 Pat 247); Courtney Terrell C. J. pointed out that the main purpose of cross-examination is to obtain admission, and it would be ridiculous to assert that a party cross-examining a witness is therefore prevented from relying on admission and to hold that the fact that the witness is being cross-examined implies an admission by the cross-examiner that all the witness’s statements are falsehood.

43. The matter can be viewed yet from another angle. Section 154 speaks of permitting a party to put to his own witness “questions which might be put in crossexamination”. It is not necessarily tantamount to “cross-examining” the witness. ‘Cross-examination’, strictly speaking means cross-examination by the adverse party as distinct from the party calling the witness. (Section 137, Evidence Act). That is why Section 154 uses the phrase “put any questions to him which might be put in cross-examination by the adverse party”. Therefore, neither the party calling him nor the adverse party is, in law, precluded from relying on any part of the statement of such a witness.

44. The aforesaid decisions of the Calcutta High Court were overruled by a Full Bench in Prafulla Kumar Sarkar’s case (AIR 1931Cal 401) (FB) (supra). After an exhaustive survey of case law, Rankin C. J. who delivered the main judgment, neatly summed up the law at pages 1428-l430 of the Report (pp. 407-408 of AIR):

“In my opinion, the fact that a witness is dealt with under Section 154 of the Evidence Act, even when under that section he is ‘cross-examined’ to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross-examined him can take no advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say.”

[underlining by us for emphasis]

26. We also notice the following extracts from Prafulla Kumar Sarkar (supra), which enunciation was respectfully agreed with by their Lordships of the Hon’ble Supreme Court in Sat Paul[AIR 1976 SC 294]:

“32. As a practical matter, therefore, Section 154 refers exclusively to cross-examination of a witness by the party calling him. We are not asked to state the circumstances in which the court may exercise its discretion in favour of the party seeking to cross-examine, and indeed it would be impossible to formulate any comprehensive rule. One observation, however, is permissible. The object of calling witness is to elicit the facts, and if the facts to be elicited are such as ought to be elicited from a witness, and if this cannot be elicited without cross-examining him, it would be difficult to say that the discretion was wrongly exercised. Testamentary proceedings furnish an admirable example of what is meant. The only surviving witness to a will may be unwilling to depose in favour of the executor who applies for probate. He may, however, be more unwilling to commit perjury and if cross-examined, a few leading questions suggesting the essential facts may elicit all that is necessary to entitle the court to direct probate to issue. This instance exposes the fallacy of the proposition that, as a matter of law, the evidence of a witness who has been allowed to be crossexamined by the party who calls him must be wholly disregarded. When a witness has made contradictory statements in examination-in-chief and in crossexamination, whether such cross-examination be by the party who has called him or by the adverse party or by both parties, the resultant position as regards his deposition is the same. It makes not one iota of difference whether his answers have been given in reply to questions by one side or by the other or even by the court itself. The deposition itself and what it is to which the witness has deposed is all that matters, and the direction to the jury should be the same in every case and their attention should be drawn to the contradictions with such observations as to the circumstances in which contradictory statements were made as the judge may consider to be necessary; and the jury should be left to form their own conclusions as to the value to be attached to the statements which the witness has made. There can be no question as a matter of law of rejecting the evidence of such a witness either so far as it is in favour of the party calling the witness or so far as it is in favour of the adverse party.”

[emphasis by underlining by us]

27. Their Lordships of the Full Bench of the Calcutta High Court raised six questions and answered four. It was held that when a witness is treated as ‘hostile’, (i) his evidence cannot be rejected in whole or in part, (ii) so much of it which is in favour of a party calling a witness or (iii) in favour of the opposite party, also cannot be rejected. As to the last question, it was held that the whole of the evidence so far as it affects both parties favourably or unfavourably must go to the Jury for what it is worth. Hence, it is for the Court, in the present circumstances of abolition of Jury trial, to decide on the evidence led, or rather discern from the conflicting depositions to find in favour of either the party who produces the witness or the party to whom, the witness is adverse.

28. In the present case we notice that the contradictions were not properly proved as required in law. Even if it were properly done, there is no question of the Courts placing reliance on such Section 161 statements to convict the accused as those statements are neither substantive or even corroborative evidence. This brings us again to the reality of two different versions having been deposed, by the witnesses in chief-examination and cross-examination on the particular aspect of infliction of wounds on the deceased. In chief-examination both the witnesses had deposed to their having seen the deceased being stabbed by the accused. In cross-examination no contradiction was marked from Section 161 statements of these witnesses, making it evidently clear that they, at least, had stated before the Police about their having seen the infliction of injuries. The FIS of PW1 also indicates the witness having seen the infliction of injuries, which he stated to the Police at the first instance. We have before us the chief-examination and the cross-examination and it is for us to decide, as any reasonable man would, as to which of them has the ring of truth.

29. 2013 (7) SCC 125 Akil v. State (NCT of Delhi) was a case in which, on almost similar grounds of being engaged in the High Court, adjournment was sought for cross examination. In that case PW20, a relative of the accused, in chief examination identified the accused as the person who attempted to molest the victim and shot dead the deceased on objections being raised. In cross-examination after two months the witness resiled from his earlier stand to state that on the earlier occasion the identification was at the instance of the Police who tutored him. The Hon’ble Supreme Court drew an inference that the witness had been won over and improperly induced to change his stand and gave false testimony since the witness had completely changed his stand in cross-examination, exculpating the accused as compared to the examination in chief in which the accused stood inculpated. The diametrically opposite stance taken in cross-examination, which was held with a delay of two months, was held to be a circumstance in which such an inference could be drawn. In corroboration the recovery of a gold chain and Rado watch from the person of the accused, which belonged to the complainant (PW17) was relied on for corroboration. The witness who resiled in cross-examination, from the identification he asserted in chief-examination, was not declared hostile. Even then the Hon’ble Supreme Court upheld the reliance placed by the Courts below on the identification in chief examination. This decision was followed in 2017(9) SCC 340 (Ratanlal v. Prahlad Jat) wherein an application filed under S.311 of the Cr.PC after a passage of 14 months was rejected, which was held to be justified. We have also seen that the evidence of a hostile witness is not to be thrown out in its entirety and so much of it which is corroborated, can be relied on by the Courts (AIR 1989 SC 1543 (State of U.P v. Chet Ram), AIR 2011 SC 200 (Paramjeet Singh v. State of Uttarakhand), AIR 2011 SC 2328 (Yomeshbhai Parashankar Bhatt v. State of Gujarat), AIR 1991 SC 1853 (Khujji alias Surendra Tiwari v. State of Madhya Pradesh)

30. AIR 2003 SC 4230(State of Rajastan v. Bhawani and another) held so:

9.The fact that the witness was declared hostile by the Court at the request of the prosecuting counsel and he was allowed to cross-examine the witness, no doubt furnishes no justification for rejecting en bloc the evidence of the witness. But the Court has at least to be aware that prima facie, a witness who makes different statements at different times has no regard for truth.

His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same. The Court should be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. The High Court has accepted the testimony of the hostile witnesses as gospel truth for throwing overboard the prosecution case which had been fully established by the testimony of several eyewitnesses, which was of unimpeachable character. The approach of the High Court in dealing with the case, to say the least, is wholly fallacious. AIR 2011 SC 3753 (Mrinal Das. V . State of Tripura) held so :

42. In the case on hand Ganesh Kol (PW-2), Satyendra Tanti (PW-9), Ramakanta Paul (PW-10) and Prabhir Biswas (PW-12) were declared as hostile witnesses. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.

[underlining by us for emphasis]

31. As we noticed PW1 and PW2 when they were examined in chief fully supported the prosecution case and their evidence was in tune with the FIS. We reiterate, there was no contradiction or omission marked by the defence while cross-examining the witnesses. In cross-examination there were some embellishments and with respect to the incident which took place on the crucial date and the witnesses resiled from the earlier testimony of they having witnessed the infliction of injury. According to the new version, spoken of by both PW1 and PW2, there was a commotion in front of the nearby toddy shop wherein the deceased was found to be quarreling. The deceased is said to have then hurriedly approached the fast food shop with around ten people following him. He is also said to have ordered an omelet, with PW2-the fast food shop owner; very unlikely of a person who was running away from a commotion, with about 10 people on his heels. Again, it is stated that when he was offered an omelet, he refused to take it, abused PW2 and stepped down on to the road, when the people standing there questioned him and in the resulting scuffle the deceased suffered the injuries to which he succumbed. It is also to be noticed that both the witnesses spoke of the accused having worn a ‘baniyan’ and a ‘dhothi’; obviously to challenge the recovery made under S.27 of a jeans and shirt.

See also  41A CrPC. - Direction to ensure compliance of safeguards from arbitrary arrest in 498A Cases

32. We also have to notice that PW1 is a person who suffered an injury in the scuffle. The injury suffered was also on his left knee. This again is very unlikely in a scuffle, where the injuries caused on the deceased and on the witness were with a knife. As per the version in chief-examination, the incident commenced just in front of the fast food shop which was on a veranda, at a higher plane from the road (two steps high as seen from Ext.P2 Scene Mahazar). PW1 suffered the injuries when the accused brandished the knife to ward of those who intervened. The accused was then on the road, to which he stepped down from the raised veranda after he stabbed the deceased two or three times. On seeing the deceased being stabbed, PW1 intervened at which point the accused was on the road and PW1 on the raised veranda which resulted in the injuries to PW1s knee, when the accused waved the knife to ward of the intruder. The said version in chief-examination is very likely, while the other in cross-examination is very unlikely.

33. Corroboration is available from Ext.P11 which is the accident register cum wound certificate of PW1, issued by the hospital in which he took treatment. The history and alleged cause of injury is written in the hand of the Medical Officer as “alleged h/o assault by a person named-Faisal at 9.00 p.m. near Poodvel Toddy shop on 27.10.2010′(sic). The certificate was marked and proved by PW12-the Medical Officer of the same hospital, who is acquainted with the signature and handwriting of the Medical Officer who issued it. He also spoke of the history as is seen from the above recital. 1982 (1) SCC 700 (Mohanlal Gangaram Gehani V. state of Maharashtra) with respect to S.32 of the Evidence Act held that the first statement in point of time made by the injured must be preferred to any of his subsequent statements. The version of PW1 in cross-examination is quite inconsistent with the statement first made by him to the Doctor who treated him. Of course in cross-examination the astute defence lawyer has made him state that the witness himself did not speak to the Doctor about the injury and that those who accompanied him recited the same to the Doctor; quite unbelivable. For one, there is nothing in the statement which shows that the injured PW1 was either unconscious or disoriented at the time of examination. There is hence no circumstance for the Doctor to have not elicited the history from the injured. Further the witness does not have a case that those who were with him had said anything else to the Doctor or that while speaking on the injury they deliberately narrated a falsehood. No question was put to the Doctor who was examined to prove the certificate as to whether the statement was one elicited fom the injured itself. We are aware that the Doctor examined was not the Doctor who issued the certificate, but the defence ought to have questioned him if it was their case that the injured did not speak on the cause of injury; in which event it could have been elicited from the Doctor as to the usual practise. We are hence convinced that the inconsistent stand taken in crossexamination was definitely on inducement or intimidation which we infer garnering support from 2013 (7) SCC 125 Akil (supra).

34. In addition to the eye witness testimony in chief-examination, we are inclined to look for corroboration to the recoveries made under S.27. The recoveries made on the confession statement of the accused are the knife and the dress worn by him at the time of occurrence. Ext.P4 is the recovery mahazar of the knife in which the confession statement has also been extracted. The accused agreed to point out the place where he had kept the knife and led the police to his own house. The knife was recovered from under a coconut tree on the south-eastern corner of the property. The recovery as has been argued by the learned Counsel was not from an open place. The High Court of Delhi in Shivnarayanan (supra) referred to the spot of recovery in that case, as an open place, since it was an open plot adjacent to some factories. It was in that context that their Lordships specifically found that it was not buried or concealed under the earth or inside the bushes. Quite distinctly here, the knife was recovered from the residential property belonging to the accused himself which cannot be said to be an open place easily accessible to the public or even the police nor would it be visible to the public eye. In AIR 1999 SC 1293 State of H.P v. Jeet Singh the question arose of a recovery from an open place where the object was hidden. It was held that if there is concealment and the object had to be dug out, then recovery would not be vitiated since though the place was open the buried object would not be visible to the public. What is relevant is whether the object recovered was lying in a place accessible to the public and the said object was visible to all and sundry. Here neither was the residential property accessible to the public nor would a knife thrown under a coconut tree be visible to all.

35. Challenging the recovery of the knife, learned Counsel for the accused had referred to the cross-examination of PW1 wherein he deposed that he was shown the knife the very next day by the police. We do not find any credence to the said statement made in the tutored cross-examination of PW1. Another contention is that PW8 Doctor who conducted the postmortem had said that MO1 was shown to him and it could only be at the time of postmortem. There is some confusion in the readable copy of the deposition supplied to us. Hence we looked at the original record. The statement made by PW8 is: ‘All injury except 2,3,19,20 could be caused with MO1 and MO1 was shown to me while recording statement on 06.11.2010.’ Obviously the statement referred to is that under S.161. We also looked at the property list at Ext.P15 series by which the properties were produced before the Magistrate’s Court. MO1 is included in the property list received by the Court on 08.11.2010. Hence the Doctor was shown the knife after its recovery on 01.11.2010 and before it was produced before Court on 08.11.2010. We do not find anything to vitiate the recovery.

36. Now we come to the recovery of the dress of the accused. At the outset we notice that MO7 shirt was spoken of by different witnesses as that of the deceased and the accused. No reliance hence was placed by the trial Judge on the recovery of the shirt belonging to the accused in which there were traces of blood found in chemical analysis, sufficient to identify the group, which was also that of the deceased. We, from the documents do not agree with the trial Judge on this aspect. We will first notice the inconsistencies in evidence. PW4 was the witness examined to substantiate the recovery of the knife and the dress worn by the accused. The dress of the accused; jeans and slate coloured shirt, were marked as MO6 and MO7. The recovery mahazar is at Ext.P3. The confession statement was on the date of occurrence and the pants and shirt worn by the accused at the time of occurrence was hidden in the roof of the room near the central hall, lying to the south east of his house. The jeans MO6 was not send for analysis and we need not tarry on that. However, the shirt recovered on the confession statement of the accused was described so in Ext.P3:

“മുതൽ വിവരം

1. കോളറിന്കത്ത് SAN ADISON എന്ന സ്റ്റിക്കർ ഉള്ളതും മുൻഭാഗം കോളർ മുതൽ താഴോട്ട് 7 ബട്ടൺ ഉള്ളതും, 67 cm ഇറക്കമുള്ളതും ഇടതു ഭാഗം പോക്കറ്റ് ഉള്ളതും അവിടവിടെ രക്തംപുരണ്ടതുമായ സ്ലേറ്റ് കളർ ഉള്ള  ഹാഫ് കൈ ഷർട്ട് എണ്ണം – 1

37. From the above extract in Malayalam we emphasise the sticker on the inside collar of the shirt which reads ‘San Adison’. PW6 is the relative of the deceased who had produced the dress of the deceased to the police which was again marked as MO7. PW7 is the mahazar witness of Ext.P6 who too identified the shirt of the deceased as MO7. We look at the seizure mahazar Ext.P6 which shows the description of the shirt as item No.2, which is extracted hereunder:

“2. കീറി തിരിച്ചെടുത്ത നിലയിലുള്ളതും, കാപ്പി കളറിൽ കറുപ്പ് ലൈൻ ഓട് കൂടിയതും രക്തം പുരണ്ടതും അവിടെ കീറിയ നിലയിൽ ഉള്ളതുമായ  ഷർട്ട് 1”

The description is of a ‘a torn off coffee coloured shirt with black lines containing blood stains’; torn off obviously due to the difficulty of removing the shirt from the dead body. Here we pertinently note that both the shirts were seized validly and they were marked in evidence. However, either the same material object was marked differently as that of the deceased and accused or one was not marked properly, a serious lapse on the prosecution and of the Court. We hence thought it fit that we verify the material objects which are brought to the High Court only if it is found necessary.

38. The trial was proceeded with at Kasaragod, the northern most district of Kerala and the pandemic restrains us from asking the material object to be brought in person from Kasaragod to Ernakulam. We hence directed the Principal District Judge (PDJ) Kasaragod to come on Video Conferencing with the material objects from Kasaragod. The PDJ came on Video Conferencing in the midst of the hearing which was also proceeded with on the digital mode. The Counsel for the appellant and the learned Senior Prosecutor were present on the digital mode. The Court staff, in the presence of PDJ, displayed two shirts to us which were available with the material objects of the particular Sessions Case. Myself and my learned Sister as also the learned Counsels were able to clearly see the material objects. One was a slate coloured shirt with the sticker in the inner collar (‘San Adison’) the other was a completely torn off coffee colored shirt. PW4 the mahazar witness of recovery under S.27 was examined first in point of time. He has identified the shirt recovered at the instance of the accused as MO7. As we noticed the two other witnesses who were examined after him also correctly identified the shirt of the deceased which too was marked by the Court as MO7. Or they wrongly identified the shirt of the accused as that of the deceased. The I.O, PW13 was shown both shirts which were identified, but both were marked as MO7; obviously a mistake committed by the Court. This is especially so since both the shirts are available in the material objects of the Sessions Case preserved in the trial Court. Whatever be; the identification by PW4 which was first in point of time has to be accepted.

39. In addition to this we looked at the property lists at Ext.P15 series by which the I.O produces the material objects before Court. It shows the ‘slate coloured shirt’ of the accused as Item 1, on the third page in the property list dated 01.11.2010, the description containing the sticker with ‘San Adison’. The ‘coffee colored shirt’ is item No.2 in the property list dated 28.10.2010. Ext.P16 is the forwarding note by which, before the committal proceedings, the Magistrate forwarded the various objects produced before Court for chemical examination, which is dt.16.02.2011. The ‘coffee coloured shirt’ is shown as item No.2 and the ‘slate coloured shirt is’ shown as item No.5, the descriptions of both are as earlier noticed, with the later mentioning the sticker on the inside collar with the name ‘San Adison’. Now we come to the report of chemical analysis which is produced as Ext.P20. The first page shows the receipt where Item NO.2 is shirt (coffee brown color) and Item NO.5, shirt (gray colour-obviously the colour can be said to be slate or gray; as we have personally seen). The report of analysis speaks of human blood in both the shirts; ie: on the shirts of the accused and the deceased and the origin is human and group, B-positive, which is the blood group of the deceased as seen from the postmortem report Ext.P7. Witnesses may lie but documents do not. The document trail in the above case starting from the recovery mahazar Ext.P3, the property list at Ext.P15 series and the forwarding note Ext.P16 shows the distinct description of the shirts worn by the deceased and the accused; that of the deceased handed over to the police by his relative and that of the accused recovered on his confession statement. The chemical analysis report also supports the prosecution case thus providing scientific evidence to nail the accused as the perpetrator of the crime.

40. In the above circumstances, based on the testimony in chief examination of the eye witnesses PW1 and PW2 as corroborated by Ext.P11 wound certificate of PW1, Ext. P4 recovery of the weapon, Ext.P3 recovery of the shirt of the accused, Ext.P15 property list, Ext.P16 forwarding note and the scientific evidence provided by the chemical analysis report, Ext.P20, we find the accused guilty. Even if we eschew the evidence of PW1 PW2 to the extent they inculpate the accused as to the infliction of injury, we find an unbroken chain of circumstances unerringly pointing to the guilt of the accused. The recoveries and scientific evidence offer corroboration to the prosecution case as first spoken of by PW1 and PW2. The recovery of the weapon and blood stained shirt has been effected through the confession statement of the accused. We find sufficient evidence to convict the accused for the offences charged and we affirm the sentence passed. We see serious indifference, if not negligence on the part of the Addl.Sessions Judge I who tried the case and a copy of this judgment shall be sent to him as a word of caution. We dismiss the appeal. We notice that the appellant/accused was set at large by suspending the sentence passed by the trial court by order dt.29.06.2017. The bail bonds executed by the accused appellant would stand cancelled and he shall surrender before the Addl.Sessions Judge I, Kasaragod forthwith.

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