The testimony of hostile witnesses can be relied on to the extent, it supports the prosecution case: Allahabad High Court

Court No. 37 Case : JAIL APPEAL No. 3113 Appellant : Prakash Respondent : State of U.P Counsel for Appellant : Form Jail Shweta Pandey Sweta Pandey Counsel for Respondent : A.G.A Hon ble Dr. Kaushal Jayendra Thaker J Hon ble Ajai Tyagi J Oral judgment by Hon ble Ajai Tyagi J This appeal has been preferred by the appellant Prakash against the judgment and order dated 16.2.2008 passed by Additional Sessions Judge Court No.9 Kanpur Dehat in Session Trial No.807arising out of Case Crime No.6706 under Section 302 323 324 IPC Police Station Ghatampur District Kanpur Nagar whereby the accused was convicted and awarded sentence under Section 302 IPC for life imprisonment and fine of Rs.10 000 . He was directed to undergo further imprisonment for one year in case of default of fine. The appellant was further convicted and sentenced under Section 323 IPC for six months RI and further convicted and sentenced under Section 324 IPC for one year RI. All sentences were directed to run concurrently The facts giving rise to this appeal are that complainant Ram Khelawan submitted written report at Police Station Ghatampur District Kanpur Nagar stating therein that on 18.12.2006 his elder brother Prakash was going to the brick kiln of Jawahar with his wife PhoolkaliShiv Raj s o Bheekkhu ran towards that direction and saw that Prakash was attacking on his own wife Phoolkali with spade. They anyhow saved both the children during which Shiv Raj and daughter of Prakash namely Goldialso sustained injuries. So many people of village gathered on the spot but Prakash fled way. He brought injured Phoolkali for treatment but she died A case crime bearing No.6706 was registered at police station under Sections 302 and 323 IPC. Investigation was taken up by SI Badam Singh. Investigating Officer recorded statements of witnesses prepared site plan collected plain and blood stained earth. Inquest report was also prepared Postmortem was conducted on the body of deceased by Dr.Autar Singh and postmortem report was prepared. In the postmortem cause of death was ascertained as excess bleeding from antemortem injuries. Injured Shiv Raj and Kumari Goldi were also medically examined and their injury reports were also prepared by Dr.Vinod Kumar Mishra. During the course of investigation the Investigating Officer arrested the accused Prakash and on his pointing out made recovery of spade which was said to be used in commission of crime. After completing the investigation charge sheet was submitted against accused appellant Prakash under Sections 302 324 and 323 IPC. The case being exclusively triable by court of session was committed to the court of session for trial Learned trial court framed charges against appellant under Sections 302 324 and 323 IPC. Charges were read over to the accused who denied the charges and claimed to be tried To bring home the charges following witnesses were examined by the prosecution Apart from oral evidence following documentary evidence were produced by prosecution and proved by leading Dr.Vinod Kumar Misra Written report Recovery memo of blood stained and Recovery memo of spade Injury report Charge sheet Mool Site plan with Index Site plan with Index Accused appellant was examined under Section 313 Cr.P.C. and evidence led by prosecution against him was put to him. Accused stated that false evidence has been led against him. Accused did not examine any witness in his defence 8. We have heard Ms.Shweta Pandey learned Amicus Curiae appearing for the appellant learned AGA for the State and perused the record Learned counsel for the appellant submitted that appellant has been falsely implicated in this case. He is innocent. It is strongly argued that all the prosecution witnesses of fact have turned hostile. No witness has supported the prosecution case. It is also submitted that antemortem injuries shown in postmortem report were not sufficient to cause death of the deceased. It is next submitted that appellant was not arrested on the spot and prosecution could not establish any motive to commit the crime by appellant. Deceased was wife of appellant and nothing is brought forward by prosecution as to why the appellant would have killed his own wife. Motive is absolutely silent. She also argued that false recovery of spade is made by Investigating Officer to strengthen the prosecution case and recovered spade is in fact planted by the police Appellant is languishing in jail for more than 14 years 10. Per contra learned AGA submitted that appellant is named in FIR as single accused and it is very important to note that the FIR of this case was lodged by appellant s real younger brother. It is next submitted that first information report was lodged very promptly nearly about two hours after the occurrence. Therefore there was no reason for false implication of the appellant. It is also very important to note that first information report is lodged by younger brother of accused and there is nothing on record that there was any sort of enmity between these two brothers. Learned AGA further submitted that the spade which was used in commission of crime was recovered by Investigating Officer on the pointing out of the appellant. It is also argued that antemortem injuries found in postmortem could be inflicted to the deceased with the weapon instrument like spade if it is used from reverse side. In this way medical evidence also corroborates the prosecution version. Lastly it is submitted by learned AGA that no doubt witnesses of fact have turned hostile but they have become hostile due to being close relative i.e. brother and daughter etc. therefore to save the accused from punishment witnesses have turned hostile but learned trial court has rightly appreciated the evidence on record and convicted the accused It is contended by the defence that prosecution could not establish the motive of crime but this is the case of direct evidence and in case of direct evidence motive losses importance. Hence absence of motive does not affect the prosecution case adversely 12. Perusal of the record shows that in this case prosecution has produced three witnesses of fact namely Ram Khelawan who is complainant and eye witness of the occurrenceShiv Raj injuredand Silta the daughter of the accused PW3). All these three witnesses have turned hostile. In such a situation heavy duty has been cast upon us to scrutinize the evidence of PW1 PW2 and PW3. It is settled law that testimony of hostile witnesses cannot be thrown away merely on the ground of being hostile. The testimony of hostile witnesses can be relied on to the extent it supports the 13. Hon ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat8 SCC 624] has held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence In Ramesh Harijan vs. State of UP5 SCC 777 Hon ble Supreme Court has also held that it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record In State of UP vs. Ramesh Prasad Mishra and another 2766] Hon ble Apex Court held that evidence of a hostile witnesses would not totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. Thus the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole and relevant part thereof which are admissible in law can be used by prosecution or the 16. We have scrutinized the evidence of hostile witnesses very meticulously and have also gone through the findings recorded by learned Trial Judge 17. First information report was very promptly lodged at police station just after two hours of incident in which the complainant named appellant Prakash and he was single accused named in the FIR. There is no reason to falsely implicate the appellant by his real brother. Ram Khelawan PW1) although has turned hostile but in examination in chief he has stated that written report was written by Raj Kumar but he had written it on his dictation. Although he has further stated that it was not read over to him but this statement cannot be believed in the light of evidence of scribe. The scribe of first information report Raj Kumar has been produced as PW9. He has stated in his examination in chief that report of occurrence was written by him on the dictation of Ram Khelawan and he had written verbatim whatever was dictated by him. In his cross examination PW9 has stated that he had written above report at police chauki on the dictation of police inspector Learned trial court has very well scrutinized the factum of writing of first information report and came to the conclusion that it is clear that first information report was written by Raj Kumar on the dictation of complainant Ram Khelawanis cousin of complainant. It is said that on hearing the screaming he also ran towards the place of occurrence. His presence is also proved on the spot because he sustained injuries as it is said in the first information report that Shiv Raj sustained injuries while trying to save the deceased Medical examination of injuries of this witness was conducted by Dr.Vinod Kumar Mishra has also turned hostile but injury sustained by him shows that he was present at the place of occurrence and as stated in the FIR he sustained injury while trying to save the deceased from the clutches of accused appellant. The same case goes with the daughter of appellant namely Kumari Goldi. Unfortunately Kumari Goldi died before she could depose. In this way the injuries of above injured persons established the fact that the incident as alleged in the FIR took place and while trying to save the deceased from the attack of appellant they sustained injuries. Although Shiv Rajhas stated that he got injury by falling but this statement cannot be believed in view of the above circumstances. Learned trial court has rightly opined that a person can tell a lie but not the circumstances 19. We are convinced that learned trial court has rightly held that inquest report was prepared and punch gave opinion that deceased Phoolkali died due to inflicting the injuries with spade by Prakash. Complainant Ram Khelawan has also signed the inquest report and Bhola has also signed who is the witness of recovery of spade. This witness namely Bhola is produced as PW7 and has stated that police called him at police chauki and sought his thumb impression on a plain paper. He has denied recovery of spade in his presence but in this way however he has admitted his thumb impression on recovery memo. Learned trial court has very rightly appreciated the fact that there is no signature or thumb impression of accused Prakash on inquest report. It shows that accused appellant was not present at the time of preparation of inquest report of the deceased while deceased was his wife. His real brother Ram Khelawan the complainant and Bholaetc. were present but accused was not present meaning thereby that he had fled away from there. It is very strong circumstance against the appellant 20. The finding of fact regarding the presence of witnesses at the place of occurrence cannot be faulted with. Death of deceased was a homicidal death. The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within the four corners of murder or culpable homicide not amounting to murder. Therefore we are considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC. Accused is in jail for the last more than 14 years. In State of Uttar Pradesh vs. Mohd. Iqram and another 8 SCC 80] the Apex Court has made the following observations in paragraph 26 therein 26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime then the onus stood shifted on the defence to have brought forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and therefore they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so the trial court was justified in recording its findings on this issue The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus the judgment proceeds on a surmise that renders it 22. Considering the evidence of these witnesses and also considering the medical evidence including postmortem report there is no doubt left in our mind about the guilt of the present appellants. However the question which falls for our consideration is whether on reappraisal of the peculiar facts and circumstances of the case the conviction of the appellant under Section 302 IPC should be upheld or the conviction deserves to be converted under Section 304 or of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code which reads as under 299.Culpable Homicide Whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide 23. The academic distinction between murder and culpable homicide not amounting to murder has always vexed the Courts. The confusion is caused if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 IPC. The following comparative table will be helpful in appreciating the points of distinction between the two offences A person commits culpable homicide if the act by which the death is caused is done to homicide is murder is the act by which the death is caused is done a) with the intention of causing death or 1) with the intention of causing death or b) with the intention of causing such bodily injury as is likely to cause death or c) with the knowledge that the act is likely to cause death 2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused the act 4) with the knowledge is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and without any excuse for incurring the risk of causing death or such injury as is mentioned In the case in hand the postmortem of deceased Phoolkali was conducted by Dr.Autar Singh who has produced before trial court as PW5. According to postmortem report the deceased sustained following antemortem injuries a) contusion on back at level of T 6 to T 12 about 15 cm x 9 b) contusion on the right side of back at level of T 10 to T 2 about 5 cm x 4 cm c) abrasion on post aspect of right thigh near right knee joint about 2 cm x 1 cm In the internal examination on the body of the deceased the spinal cord and ribs were found fractured. Right lung and liver also found injured. The doctor opined that deceased died due to excess bleeding from antemortem injuries. Therefore it is established that deceased died due to excess bleeding of internal injuries sustained by her. Having analyzed the antemortem injuries we have reached to the conclusion that appellant used the spade to attack the deceased from reverse side because deceased sustained two injuries of contusion There is no injury of incised wound. Hence spade was used from reverse side which shows that appellant was not having any intention to kill the deceased but certainly he had knowledge that his act was likely to cause death 26. On overall scrutiny of the facts and circumstances of the case coupled with the opinion of the medical officer and considering the principle laid down by the Hon ble Apex Court in the case of Tuka Ram and others vs. State of Maharashtra 4 SCC 250] and in the case of BN Kavadakar and another vs. State of Karnataka 304] we are of the considered opinion that the offence would be punishable under Section 304IPC 27. From the upshot of the aforesaid discussion it appears that the death caused by the accused was not intended and the injuries were though sufficient in the ordinary course of nature to have caused death the accused had no intention to cause death therefore the instant case false under the Exceptions 1 and 4 to Section 300 IPC In the light of the foregoing discussions the appeal is liable to be allowed in part. Appellant is held guilty for commission of the offence under Section 304 IPC instead of offence under Section 302 IPC along with other offences punishable under Sections 323 and 324 IPC 29. Hence the conviction and sentence awarded to the appellant for the offence under Section 302 IPC is converted into the offence under Section 304IPC and appellant is sentenced under Section 304IPC for 14 years rigorous imprisonment and fine of Rs.5 000 . The appellant shall undergo further simple imprisonment for one year in case of default of fine. Sentence awarded under Sections 323 & 324 IPC shall remain intact. All the Sentences shall run 30. Accordingly the appeal is partly allowed as modified Ajai Tyagi J.) (Dr. Kaushal Jayendra Thaker J Order Date : 27.10.2021

Summary: There is no reason to falsely implicate the accused-appellant by his real brother. Thus, his witness cannot be thrown away merely on the ground of being hostile. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Dr. Kaushal Jayendra Thaker &amp; Hon’ble Justice Ajai Tyagi in the matter of Prakash vs State Of U.P. [JAIL APPEAL No. – 315 of 2013] on  27.10.2021. 
The facts of the case revolved around the homicidal death of one Phoolkali who was alleged to be killed by his own husband by a spade. The eye-witness was of the incident, who was the complainant, was the real brother of the accused-appellant. After examining the pieces of evidence led by the prosecution the learned session judge found the accused guilty under section and awarded a sentence of life imprisonment including a fine of Rs. 10,000/-. He was directed to undergo further imprisonment for one year, in case of default of fine. The appellant was further convicted and sentenced under Section 323 IPC for six months rigorous imprisonment and further convicted and sentenced under Section 324 IPC for one year rigorous imprisonment. All sentences were directed to run concurrently. Thus, the present appeal was preferred by the appellant stating that the witnesses cannot be held to be valid on the reason of being hostile.

The Hon’ble High Court referred to the judgment in the case of Koli Lakhmanbhai Chandabhai vs. the State of Gujarat [(1999) 8 SCC 624] in which Hon’ble Supreme Court held that “ evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. Evidence of such a witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. ”

Finally, the Hon’ble High Court upheld that the order conviction of the learned session judge but turned the conviction from 304 to 304 of IPC, 1860.
Click Here To Read The Judgment
Judgment Reviewed by: Rohan Kumar Thakur
 The facts of the case revolved around the homicidal death of one Phoolkali who was alleged to be killed by his own husband by a spade. The eye-witness was of the incident, who was the complainant, was the real brother of the accused-appellant. After examining the pieces of evidence led by the prosecution the learned session judge found the accused guilty under section and awarded a sentence of life imprisonment including a fine of Rs. 10,000/-. He was directed to undergo further imprisonment for one year, in case of default of fine. The appellant was further convicted and sentenced under Section 323 IPC for six months rigorous imprisonment and further convicted and sentenced under Section 324 IPC for one year rigorous imprisonment. All sentences were directed to run concurrently. Thus, the present appeal was preferred by the appellant stating that the witnesses cannot be held to be valid on the reason of being hostile. 
The Hon’ble High Court referred to the judgment in the case of Koli Lakhmanbhai Chandabhai vs. the State of Gujarat [(1999) 8 SCC 624] in which Hon’ble Supreme Court held that “ evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. Evidence of such a witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. ”

Finally, the Hon’ble High Court upheld that the order conviction of the learned session judge but turned the conviction from 304 to 304 of IPC, 1860.
Click Here To Read The Judgment
Judgment Reviewed by: Rohan Kumar Thakur
 The Hon’ble High Court referred to the judgment in the case of Koli Lakhmanbhai Chandabhai vs. the State of Gujarat [(1999) 8 SCC 624] in which Hon’ble Supreme Court held that “ evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. Evidence of such a witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. ” 
Finally, the Hon’ble High Court upheld that the order conviction of the learned session judge but turned the conviction from 304 to 304 of IPC, 1860.
Click Here To Read The Judgment
Judgment Reviewed by: Rohan Kumar Thakur
 Finally, the Hon’ble High Court upheld that the order conviction of the learned session judge but turned the conviction from 304 to 304 of IPC, 1860.