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2019 DIGILAW 1409 (ALL)

Mahtab Alam @ Safullah v. State of U. P.

2019-05-23

PRADEEP KUMAR SRIVASTAVA

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JUDGMENT : Pradeep Kumar Srivastava, J. Heard Shri Chandra Kumar Rai, learned counsel for the appellant, Shri Manoj Kumar Singh, learned AGA for the State and perused the record. 2. At the very outset, learned counsel for the accused appellant has submitted that instead of arguing on bail application, he will argue the appeal on merits to which the learned AGA has agreed. 3. This Criminal Appeal has been preferred against the Judgment dated 14.09.2018 passed by learned District & Sessions Judge, Azamgarh in ST No. 448 of 2014 (State Vs. Mahtab Alam @ Safullah), arising out of Case Crime No.120 of 2010, under Sections 308, 504 IPC, Police Station : Jiyanpur, District Azamgarh by which learned Court below has convicted and sentenced the appellant for the offence under Sections 308 IPC for seven years rigorous imprisonment and Rs.10,000/- fine and under Section 504 IPC for one year rigorous imprisonment and in case of default in payment of fine two months additional imprisonment. Both the sentences have been directed to run concurrently. 4. Perusal of record shows that FIR was lodged by the informant Subash Gupta stating that on 25.2.2010, his brother Om Prakash, who used to sell peanuts, when he was coming back at 9.15 p.m. with his 'Thela' on the way the accused Mehtab Alam @ Safullah forcibly obstructed the 'Thela' and started abusing and when Om Prakash prevented him. He hit on his head by the electric rod. He sustained injuries and fell on the ground and became unconscious. Witnesses & informant came there, whereupon the accused ran away from there. The injured was taken to the police station and the informant gave a report, on the basis of which, the F.I.R. was registered under Sections 308 and 504 IPC. The injury of the injured was examined in the District Hospital, Azamgarh. The case was investigated and charge-sheet was submitted under the aforesaid sections and charges were framed in the offence under Section 308 and 504 IPC and the accused was tried. 5. To prove the case, the prosecution has examined as many as four witnesses namely- PW-1 Om Prakash (injured), PW-2 Subhash (informant) who proved his written report as Ext. Ka-1, PW-3 Jaihind and PW-4 Lochan. The accused admitted the genuineness of the papers such as Chik FIR Ext. Ka-2, GD Ext. Ka-3, Medical Report Ext Ka-4, Site Plan Ext. Ka-5 and charge-sheet Ext. Ka-6. 6. Ka-1, PW-3 Jaihind and PW-4 Lochan. The accused admitted the genuineness of the papers such as Chik FIR Ext. Ka-2, GD Ext. Ka-3, Medical Report Ext Ka-4, Site Plan Ext. Ka-5 and charge-sheet Ext. Ka-6. 6. The statement of the accused was recorded under Section 313 Criminal Procedure Code who stated that the incident is false and the report was falsely lodged and has further stated that the whole case was framed because of enmity. No evidence in defence has been given by the accused. 7. After hearing the prosecution and defence and perusing the evidence on record, the learned Trial Court passed the impugned judgement convicting and sentencing the accused appellant. 8. Aggrieved by the said judgement, this Appeal has been filed and the impugned judgement has been challenged on the basis that it is not based on the evidence on record and the same is contrary to law. The sentence imposed has been based on wrong appreciation of evidence. The learned Trial Court did not consider the fact of presumption of innocence in favour of the accused and on hypothetical basis, the impugned judgment was passed, therefore, the same is liable to be set aside and the appellant is entitled for acquittal. 9. It is clear from the reading of the evidence that out of four witnesses examined by the prosecution, P.W.2 Subhash, P.W.3 Jaihind and P.W.4 Lochan were declared hostile at the very initial stage and in their testimony, they did not support the prosecution version. The injured Om Prakash was also examined and in examination-in-chief, he supported the prosecution version. In the very beginning of the cross examination, he was also declared hostile and he was cross examined by the learned prosecutor but nothing has come in the cross examination, by which the prosecution story may be supported. 10. The learned trial court has discussed with the help of a dozen rulings to conclude that the evidence of an injured witness is to be considered on better footing and as his presence at the time of incident is supported by virtue of injury he has sustained in the incident. The law is that the testimony of injured witness has been attached better sanctity as compared to statements of other witnesses. The law is that the testimony of injured witness has been attached better sanctity as compared to statements of other witnesses. In this case the offence has been committed against the injured witness only and after supporting the prosecution version in his examination-in-chief, he has disowned his statement and has turned hostile. No other witness has supported the prosecution story. The guilt of the accused was to be determined on the basis of only witness who turned hostile. Thus, the fact that he was injured is hardly material and it was to be kept in mind that even though the offence was committed against him only, he disowned his statement and gave entirely a different statement, and as such his credit as witness was shaken. Therefore, the law referred by the learned trial court is sheer waste and has been misunderstood and misapplied. 11. Learned Trial Court has also referred to a number of judgements to point out the settled principle of law that the testimony of the hostile witness is not washed off from the record and can be used to the extent it supports the prosecution version. A number of case law has been referred in support, which need not to be repeated as that proposition of law is not disputed. But in the manner, it has been applied by the learned trial court was not correct and was unwarranted in the facts and circumstances of the case. The reason being that such testimony of examination in chief can be used in support of other evidence available on record, but using the solitary statement of such witness to record conviction is not expected and the same can be used in support of some substantive evidence. 12. It is made clear that the judgement of the superior courts are for the guidance of the trial courts and while applying them the factual matrix should not be ignored and should be taken into account. The rulings are applied on facts and factual differences are very important in applying the law and to reach to correct conclusion. For instance, it was necessary to look into the facts and to get assured whether in any of the referred judgement, the conviction was upheld where the only witness who supported the prosecution version in examination-in-chief and turned hostile during cross-examination? For instance, it was necessary to look into the facts and to get assured whether in any of the referred judgement, the conviction was upheld where the only witness who supported the prosecution version in examination-in-chief and turned hostile during cross-examination? Or whether the testimony of such solitary witness formed basis for conviction or it was used in support of any substantive evidence on record? 13. Let us take judgement referred by the learned trial court on the point one by one. In Satpaul vs Delhi Administration, (1976) AIR SC 294, the case was based on trap for the offence under the Prevention of Corruption Act and the independent trap witnesses turned hostile, but the officials conducting trap supported the prosecution version with regards to demand of bribe and passing to and recovery of tainted currency notes from accused. One of the hostile witness however said that when currency notes and pant pocket was dipped in sodium carbonate, they turned pink. The trial court court convicted the accused and the same was affirmed by the high court. Acquitting the accused, the supreme court, laid down the law how the testimony of a hostile witness needs to be considered and appreciated and observed as follows: " ........his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or still can be believed in regard to a part of his testimony. If the judge 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 and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If......, the witness stands squarely and totally discredited, the judge should, as a matter of prudence, discard his evidence in toto." 14. Pointing out that the prosecution can take support from the statement of such hostile witness, the supreme court remarked, "But as a matter of prudence, on the facts of the case, it would be hazardous to allow the prosecution to do so. Pointing out that the prosecution can take support from the statement of such hostile witness, the supreme court remarked, "But as a matter of prudence, on the facts of the case, it would be hazardous to allow the prosecution to do so. These witnesses contradicted substantially their previous statements and as a result of the cross-examination, their credit was substantially if not wholly, shaken. It was therefore, not proper for the courts below to pick out a sentence or two from their evidence and use the same to support the evidence of trap witnesses." 15. Another judgement referred by the learned trial court is Alok Dev Roy vs State of Assam, (2004) CriLJ 3048 (SC) and the supreme court, referring Satpaul (supra), further remarked, "The probative value of the evidence of a hostile witness therefore would depend on its quality and the confidence it generates in the mind of the court after being subjected to a close scrutiny. If the testimony of such a witness placed in juxtaposition to the other evidence on record does not appear to be consistent and acceptable the same cannot be relied upon." 16. Another one is Guru Singh vs State of Rajasthan, (2001) AIR SC 330 where the case was based on circumstantial evidence and the accused had made extra-judicial confession before four witnesses and three of them turned hostile. The fourth witness though vividly supported the confession but he was declared hostile on limited point that contrary to his statement given to police, he said that initially the police did not register FIR saying that it was a family matter and FIR will be registered after an inquiry by the police. 17. The next is Mallappa Siddappa Alakanur vs State of Karnataka, (2009) 14 SCC 748 and it was found that this witness was not hostile even then the prosecution was permitted to cross-examine as he had said that he did not see the accused persons cutting the neck of his son, he just saw them running after him at the time of incident. 18. Sucha Singh vs State of Punjab, (2003) 7 SCC 643 is a decision on appreciation of evidence but not about the testimony of hostile witness. 18. Sucha Singh vs State of Punjab, (2003) 7 SCC 643 is a decision on appreciation of evidence but not about the testimony of hostile witness. Yomeshbhai Pranshankar Bhatt vs State of Gujarat, (2011) 6 SCC 312 is a case based on death caused by burning a woman and the husband, not being eyewitness, who only took the wife to hospital had stated that his wife had tendency of suicide. In Mirnal Das vs State of Tripura, (2011) 9 SCC 479 , seven fact witnesses including the hostile witness established the prosecution case. In Radha Mohan Singh vs State of U.P., (2006) 2 SCC 450 , one injured witness and one eyewitness supported the prosecution and they were further supported by hostile witness in his examination-in-chief who was declared hostile in his cross-examination. In Sarvesh Narain Shukla vs Daroga singh, (2007) 13 SCC 360 , five eyewitnesses were examined including one hostile witness who disowned his earlier statement whereas other witnesses proved the prosecution version. 19. In the above discussion, I have tried to pinpoint the factual and contextual differences between this case and the judgements referred on the point in impugned judgement to lay emphasis that in such factual situation it is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or still can be believed in regard to a part of his testimony and whether there is substantive evidence on record, direct or circumstantial, for the support of which the statement of such hostile witness can be used. In the instant case, there was no such evidence on record which could be supported by the evidence of such hostile witness. 20. The principle of law as laid down by different judgements of the Supreme Court that the testimony of hostile witnesses shall not be completely discarded and the part of the statement which supports the prosecution version can always be taken into consideration cannot be disputed, but the way it has been applied in the facts and circumstances of this case, that was totally uncalled for and unwarranted. It has been held in Ram Swaroop v. State of Rajasthan, 2004 AIR SC 2243; 2005 SCC (Cri) 61, that the credibility of a hostile witness cannot be discarded altogether. It has been held in Ram Swaroop v. State of Rajasthan, 2004 AIR SC 2243; 2005 SCC (Cri) 61, that the credibility of a hostile witness cannot be discarded altogether. But this puts the court on guard and cautions the court against acceptance of such evidence without satisfactory corroboration. Thus, it appears that the aforesaid principle of law was misread and misunderstood by the learned trial court to mean that a conviction can be recorded on solitary statement of a witness who has disowned his testimony of examination-in-chief and has turned hostile during the beginning of the cross-examination. No doubt, where other reliable and trustworthy evidence is available on record, the same can be used in support thereof. 21. In a recent judgement, Ramesh vs State of Haryana, (2017) 1 SCC 529 , the supreme court expressed concern on witnesses turning hostile, particularly in high profile cases. In the instant case even the injured witness who was present on spot, turned hostile and the trial court disbelieved the dying declaration of the deceased on the basis of the statement of a hostile witness whose testimony was found false on the basis of evidence on record. The Supreme Court after analysis of various cases underlined the reasons of hostility to be (1) threat/intimidation (2) Inducement by various means (3) Use of muscle and money power by the accused (4) Use of stock witness (5) Protracted trial (6) Hassles faced by the witnesses during investigation or trial (7) Non-existence of any clear-cut legislation to check hostility of witness. (8) Culture of compromise which results from various factors like village and family solidarity, compensation, false case, false statement recorded by police, subsequent good relationship developed between the parties and the like. This view has been further reiterated in Mahender Chawla vs Union of India, 2018 SCCOnline 2679. 22. The purpose of the above discussion is to point out that there may be various reasons for hostility and while appreciating the evidentiary value of a hostile witness, the trial courts should not be mechanical and should consider the evidence in the light of factual matrix in each case. In case the witness has turned hostile during cross-examination, the statement in examination-in-chief may be taken in support of other reliable and trustworthy evidence available on record. In case the witness has turned hostile during cross-examination, the statement in examination-in-chief may be taken in support of other reliable and trustworthy evidence available on record. It should be always kept in mind that right of cross-examination is available to the accused as part of his right to fair trial and unless there is evidence of threat, fear or pressure or the like to procure hostility, the trial courts should be very cautious in placing reliance on it, otherwise, the valuable right of the accused of cross-examination and fair trial will become futile and nugatory. 23. On the basis of above discussion, I find that the finding of the learned Trial Court is perverse and not sustainable under law and the impugned judgement suffers from illegality. 24. Consequently, the appeal is allowed. The impugned judgement dated 14.09.2018 passed by learned District & Sessions Judge, Azamgarh in S.T. No.448 of 2014 (State Vs. Mahtab Alam @ Safullah), arising out of Case Crime No.120 of 2010, under Sections 308, 504 IPC, Police Station : Jiyanpur, District Azamgarh is set aside. The accused appellant Mahtab Alam @ Safullah is acquitted from the charges under Sections 308, 504 IPC. 25. The office is directed to transmit the lower Court record along with a copy of judgement for information and necessary compliance.