Witnesses becoming hostile cannot be ignored or pardoned: Bombay High Court

 on 19 01 2021 on 05 02 1 crapeal40o15IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.40 OF 2015Saraswati w o Ganpat Landge Age : 66 years Occupation : Nil R o Gawaligalli Raviwar Peth Ambajogai Tq.Ambajogai District Beed....APPELLANT ACCUSED versus The State of Maharashtra.(Copy to be served on P.P.High Court of Bombay Bench at Aurangabad)...RESPONDENT…Shri Aniket Vagal Advocate for the appellant accused.Shri R.D. Sanap APP for the respondent State.... CORAM : RAVINDRA V. GHUGE & B. U. DEBADWAR JJ.Reserved on : 04th January 2021Pronounced on : 19th January 2021JUDGMENT: 1.By this appeal the appellant original accused prays for on 19 01 2021 on 05 02 2 crapeal40o15quashing and setting aside the judgment and order of conviction deliveredby the learned Additional Sessions Judge Ambajogai District Beed dated11.09.2014 in Sessions Case No.1 2014. By virtue of the said judgment the appellanthas been convicted for theoffence of murdering her husbandpunishable underSection 302 of the Indian Penal Code. She has been sentenced to sufferimprisonment for life and pay a fine of Rs.1000 or suffer rigorousimprisonment for two months. 2.We have heard the learned advocate for the appellant and thelearned prosecutor on behalf of the prosecution. With their assistance wehave gone through the appeal paper book the record and proceedings andthe muddemal.3.The prosecution has been successful in proving the chargeleveled upon the accused on the basis of the following factors:who is the son of the deceased. Tukaram narrated thatthere used to be frequent quarrels between his parents. On one occasion his father had fractured the limb of his mother and in a subsequent fight the appellant had fractured the limb of the deceased.had killed“Anna”alleging that his mother theappellant herein had murdered his father Ganpat Landge.(b)The appellant herself went to the Police Station on10.10.2013 and narrated her story of daily quarrels with her husband dueto which she murdered her husband.8 SCC450 and Mallikarjun and others vs. State of Karnataka 8 SCC359 either he has been won over or threatened etc.. Nevertheless suchconduct of a panch witness cannot be countenanced. 10.PW 2 Tukaram Ganpatrao Landge is the first informant. He isthe son of the deceasedand appellant accusedand denied hispresence. In his cross examination as permitted by the Trial Court uponbeing declared hostile he has denied that pieces of bangles wooden log blanket pillow saree and blouse were lying in the room or that thosearticles were seized by the police under the panchanama. The appellant ishis relative and he had signed the panchanama without reading it. Hedenied that the clothes of the deceased were seized under thepanchanama in his presence. Unfortunately the prosecutor has notproperly cross examined PW 5 so as to expose his somersault and taking astand which would defeat the justice dispensation system. Considering thelaw laid down in Sanjeev Nanda and Mallikarjunthe conduct ofPW 5 cannot be countenanced. 17.PW 6 Himmat Bhagurao Kale claimed that he was present inthe police station Ambajogai on 11.10.2013. The police asked him to signthe panchanama. Accordingly he signed it and identified his twosignatures on exhibits 31 and 32. Upon being declared hostile the learnedprosecutor cross examined him. He denied that the appellant was presentat the police station or that the appellant has made a voluntary statement on 19 01 2021 on 05 02 19 crapeal40o15that she would hand over the stone and wire from her house. He deniedthat the statement of the appellant was reduced into writing andthereafter PW 6 has signed it. He then admitted that the appellant was hisrelative. This is yet another case of a witness turning hostile which hasfacilitated an advantage to the appellant. 18.PW 7 Pradip Tribhuvan is the Investigating Officer. He hasstated that the appellant accused had come to his police station and hadadmitted of having murdered her husband. The I.O. rushed to the spot andprepared the spot panchanama. The panchanamawasidentified by the PW 7. It bears the signatures of the panchas. Pieces ofbangles a wooden log a blackish colour blanket old bucket faint skycolour blouse sky colour saree stained with blood and a sample of bloodstained earth were seized in the panchanama. He identified the complaint(exhibit 16) and his signature along with that of the complainant. It alsocarried the endorsement and signature of a PSO. The clothes of thedeceased were seized after the postmortem and a panchanamawas prepared.19. PW 7 then contended that the appellant had made avoluntary statement. The appellant had stated that she will handover thestone and wire. The investigation team and the appellant proceeded to herhouse. She handed over the stone kept behind the steel tank. She herselfhanded over a wire kept in the middle room. The muddemal articles and on 19 01 2021 on 05 02 20 crapeal40o15clothes were sent to the forensic laboratory for examination. In cross examination PW 7 denied that the appellant and her son PW 2 wereresiding in a tin room. 20.Considering the deposition of witnesses it is obvious thatdoubt has been created as to whether PW 2 had gone to sleep for thenight with his sister Satyasheela and that it was only the deceased and theappellant who were alone in the room in which the crime was committed.Section 106 of the Indian Evidence Act is therefore not applicable to thiscase. Five out of seven witnesses have turned hostile and have not madeany statement which could have been accepted as being a corroboration tothe evidence brought on record by the prosecution in the light of thejudgments in Yomeshbhai Pranshankar Bhatt vs. State of Gujarat 2 SCC 455. Even a little portion of the testimony favouring theprosecution and being corroborated by other pieces of evidence found inthe testimonies of these hostile witnesses could be used as substantiveevidence. The Honourable Supreme Court has crystallized the law in acatena of judgments that even a part of the testimony of a hostile witnesssupporting the case of the prosecution.21.We therefore find that the conclusion of the Trial Court thatthe quarrels between the appellant and the deceased were proved from on 19 01 2021 on 05 02 21 crapeal40o15the evidence of PW 2 and PW 3 on the basis of the FIR is unacceptable.The FIR cannot be used as substantive piece of evidence. The story of aneighbouras regards daily quarrels between the two is held to besufficient evidence to prove the said fact when PW 2 has introduced atotally different theory before the Trial Court. 22.The Trial Court has concluded that though the panchwitnesses have not supported the prosecution the admission of theappellant in her statement under Section 313 that the bangle pieces awooden plank a blanket a blouse a saree were found at the place of theincident is significant. The blood stains appearing on her clothes havebeen explained by her by saying that she has lifted the body of thedeceased and therefore since the appellant was alone with the deceased she has to explain as to how the incident had occurred.23.We find such conclusion to be unsustainable since PW 2 hasclearly stated that he had gone to sleep in one room along with his mother(appellant) and the deceasedwas sleeping in an adjacent room.We however agree with the Trial Court only on one count and which is that the learned prosecutor has not properly or skillfully cross examinedthe hostile witnesses and it appears that he has halfheartedly and casuallyconducted the cross examination. Even the photographs of the dead bodyand the interiors of the room though clicked were not proved by theprosecution. The articles were sent to the forensic laboratory and yet the on 19 01 2021 on 05 02 22 crapeal40o15carrier of such articles was not examined by the prosecution. Though thefirst information was said to have been given by the appellant herself byreaching the police station which was entered in the station diary by theSHO and though the extract of the station diary was produced on record the said SHO was not examined and the extract of the station diary wasnot even exhibited much less it s contents being proved. 24.Notwithstanding the factual position as above the Trial Courthas held that the charge against the appellant is proved as articles andclothes were stained with blood and the deceased and the appellant wereall alone in a room in the house. 25.It is now a crystallized position of law that if the case of theprosecution appears to be improbable or a doubt has been created on thebasis of the evidence available or if two views are possible the view infavour of the accused has to be accepted and the benefit of doubt has to begiven to the accused. Keeping in view that the prosecution has conductedthe trial in a casual and halfhearted manner five out of seven witnesseshave turned hostile and as material witnesses have not been examined that we are constrained to grant the benefit of doubt to the appellant accused and order her acquittal.26.In the result this Criminal Appeal is allowed. The impugnedjudgment and order dated 11.09.2014 in Sessions Case No.1 2014 isquashed and set aside. The appellant accusedwho is about 75 years of age today is hereby acquitted from thecharge of committing an offence punishable under Section 302 of theIndian Penal Code. The amount of fine of Rs.1000 if deposited by theappellant accused shall stand refunded to her. The muddemal propertybe destroyed after the appeal period is over. The record and proceedingsbe returned back to the Sessions Court.27.Before parting as has been observed by us in a judgmentdelivered in the State of Maharashtra vs. Krishna Sitaram Pawar CriminalConfirmation Case No.2 2020 decided on 22.12.2020 and keeping in viewthe law laid down in Ramji Duda Makwana vs. The State of Maharashtra 1994 Cri.L.J. 1987and State through PS LodhiColony New Delhi vs. Sanjeev Nanda 8 SCC 450 we find itappropriate to hold that we cannot turn a blind eye to the menace ofhostile witnesses and we cannot find ourselves helpless as against theconduct of the hostile witnesses. Less said the better insofar as the learnedprosecutor is concerned who has taken no efforts in conducting the trialefficiently. We are finding practically in every case before us that day byday the list of hostile witnesses is getting enlarged and the witnesses aregetting emboldened in turning hostile for the reasons which can bespeculated and perceived. The reasons for turning hostile could includethreats coercion and pressure tactics. However it is a matter of a greatconcern if the witnesses turn hostile for extraneous considerations and on 19 01 2021 on 05 02 24 crapeal40o15such hostile witnesses begin to believe that they are far beyond the reachof the arms of law. This would not only be a serious ailment disease tothe justice dispensation system but could as well be cancerous to the ruleof law and the justice delivery system. Though the respect for law cannotbe ensured by the threat of legal action the time has come to initiateaction against hostile witnesses in all such cases so as to send out amessage loud and clear to the society at large that the witnesses becominghostile cannot be ignored or pardoned.28.As such we direct the Trial Court to initiate the action underSection 340 of the Code of Criminal Procedure against all hostile witnessesin this case.29.A copy of this judgment be forwarded to the learned PrincipalDistrict & Sessions Judges in the State of Maharashtra for being circulatedto all Additional District & Sessions Judges and Judicial Officers so as toapprise them as regards the action to be initiated against the hostilewitnesses in appropriate cases.kps (RAVINDRA V. GHUGE J.) 

Summary: Hostile witnesses are those whose testimony on direct examination is either openly antagonistic or appears to be contrary to the legal position of the party who called the witness. Bombay High Court stated that legal actions must be taken against such witnesses because they are cancerous to the rule of law and the justice delivery system. The decision was taken in the case of Saraswati vs. the State of Maharashtra [Criminal Appeal no. 40 of 2015] by the bench of Hon’ble Justice Ravindra V.Ghuge and Justice B.U Debadwar. In this case, the appellant (accused) had appeared in the High Court to quash the judgment of the Trial Court which had convicted her for the charges of murder u/s 302 of IPC and sentenced them for the imprisonment of life. The appellant was accused of murdering her own husband because of some quarrels between them for 3 acres of land. After committing the murder, the appellant herself went to the police station and gave the statement that she had murdered her husband. The dead body of the deceased husband was found with injuries on his head, face, all over the body, and on his genitals. After the recording of evidence and the voluntary statement made by the appellant while being in police custody, the stone and the plank used to strike at the deceased were seized under the panchanama. And therefore, the trial court had convicted the accused for murder u/s 302 of IPC. In the High Court, the appellant’s counsel contended that:- Five out of seven witnesses had turned hostile and vital witnesses. On the other hand, the prosecution had contended that the accused killed her husband, causing him grievous injuries with the use of a stone, wooden plank, stick, and by crushing his genitals and also electrocuted him. However, no evidence was found against the accused which proved that she electrocuted her husband. HC observed that a 65-year-old village lady could not have lifted an 8 kilogram stone to assault the deceased and stone and a wire was found planted in another room to which there was access from the room in which the deceased was found killed. Hence, HC found that the conclusions made by the Trial Court were unsustainable. In the post-mortem report, the doctor had declared that the deceased met a homicidal death. While referring to the cases of State through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda, (2012) 8 SCC 450 and Mallikarjun and others vs. State of Karnataka, (2019) 8 SCC 359, HC stated that the conduct of the witnesses cannot be countenanced. HC stated that “The statements made to the police have no evidentiary value. The prosecution claims that the admission by the appellant of having murdered her husband. Though the prosecution has made such a submission, we do not find that such alleged extra-judicial confession has been proved before the Trial Court. A high degree of proof is required for proving an extra-judicial confession”.