Law Web: Whether court can convict accused on the basis of evidence of hostile witness?

It is settled law that the evidence of a hostile witness can be

relied upon to the extent to which it supports the prosecution version of

the incident. In the case of Bhajju alias Karan Singh versus State of M.P.

reported in (2012)2 C CrLR (Supreme Court) 358 the Apex Court, while

discussing the effect of hostile witnesses held as follows in paragraphs 36and 37 of the judgement: “36. It is settled law that the evidence of

hostile witnesses can also be relied upon by the prosecution to the

extent to which it supports the prosecution version of the incident.

The evidence of such witnesses cannot be treated as washed off the

records, it remains admissible in trial and there is no legal bar to

base the conviction of the accused upon such testimony, if

corroborated by other reliable evidence. Section 154 of the Act

enables the Court, in its discretion, to permit the person, who calls a

witness, to put any question to him which might be put in crossexamination

by the adverse party.”

“37. The view that the evidence of the witness who has been called

and cross-examined by the party with the leave of the court, cannot

be believed or disbelieved in part and has to be excluded altogether,

is not the correct exposition of law. The Courts may rely upon so

much of the testimony which supports the case of the prosecution

and is corroborated by other evidence. It is also now a settled canon

of criminal jurisprudence that the part which has been allowed to be

cross-examined can also be relied upon by the prosecution”.

In the High Court at Calcutta

Criminal Appellate Jurisdiction

Appellate Side

Present:

The Hon’ble Justice Aniruddha Bose

And

The Hon’ble Justice Asha Arora

C.R.A 713 of 2006

Mahadeb Mal@ Geru V The State of West Bengal

Judgment on : 15th November, 2016

Citation: 2017 CRLJ 470 Cal

1. The present appeal at the instance of the accused/appellant is against

the judgement and order of conviction and sentence dated 28th June, 2006and 29th June, 2006 passed by the learned Additional Sessions Judge, Fast

Track Court Bankura in Sessions Trial No. 3 of February 2006 arising out

of Sessions Case No. 29 of January 2006 whereby the appellant has been

convicted for the offences punishable under section 498A and 302 of the

Indian Penal Code (herein after referred to as the IPC) and sentenced to

suffer rigorous imprisonment for three years and to pay a fine of Rs.

1000/- in default of which to suffer rigorous imprisonment for three

months for the offence under section 498A of the IPC and sentenced to

suffer imprisonment for life and to pay a fine of Rs. 3000/- in default of

which to suffer rigorous imprisonment for six months for the offence

punishable under section 302 of the IPC.

2. Prosecution case, sans unnecessary details is as follows:

On 3rd December 2005 at 13.15 hours the complainant Dukhu Mal of

village Kendkunia within Police Station Bankura submitted a written

complaint to Sub-Inspector Ramagati Dutta (PW 16) of Bankura Police

Station stating that his daughter Khandi Mal alias Sulochana Mal was

married to the accused Mahadeb Mal alias Geru about four years ago

whereafter the accused started torturing his wife (complainant’s daughter)

over his unfulfilled demand for a cycle. On 3rd December 2005 at about

9.00 AM on being informed that the accused had murdered his wife, the

complainant rushed to his daughter’s matrimonial home and found her

lying dead on a cot in the courtyard of the house. The sister of the accusedinformed the complainant that the deceased was mercilessly assaulted and

throttled to death by the accused.

3. On the basis of the aforesaid written complaint of Dukhu Mal (PW 1),

Bankura P.S Case No. 322 of 2005 dated 03.12.2005 was registered under

section 498A/304B/302 of the IPC against the accused/appellant.

Investigation into the case culminated in the submission of the charge

sheet against the accused/appellant under section 498A/302/304B of the

IPC. The case being a sessions triable one was committed to the Court of

the Sessions Judge, Bankura wherefrom it was transferred to the

Additional Sessions Judge, Fast Track Court, Bankura for trial and

disposal. The Trial Court framed the charge against the accused for the

offences punishable under section 498A, 302 and alternatively under

section 304B of the IPC. The accused pleaded not guilty to the arraignment

and claimed to be tried. During trial prosecution examined seventeen

witnesses and exhibited several documents. The defence of the accused

was complete innocence and outright denial of the prosecution case. After

conclusion of trial, the learned Additional Sessions Judge, Fast Track

Court, Bankura rendered the aforesaid judgement and order of conviction

and sentence for the offences under section 498A and 302 of the IPC

against the accused/appellant.4. The point for consideration is whether the conviction and sentence of the

accused/appellant is sustainable.

5. The main thrust of argument of Mr. Bakshi, learned counsel for the

appellant is that PW 14 the star witness of the prosecution turned hostile

during the trial so the case has no legs to stand. Leading us through the

evidence of PW 14 Mr. Bakshi sought to impress that this witness did not

see the incident as alleged by the prosecution since she had gone to the

field for tending the cows and after returning home she found the victim

lying dead. To buttress his submission learned counsel for the appellant

invited our attention to the evidence of PW 14 in cross-examination (on

behalf of the accused) wherein she (PW 14) stated that on the day of

incident when she left the house for tending the cows, her elder brother

(accused) had already left the house for his work. Further contention of the

learned counsel is that the evidence of PW 4 is not worthy of credence

since she is an interested witness. It has also been canvassed that there is

no evidence to prove that the alleged torture upon the deceased continued

till the date of the incident. Another branch of argument of the learned

counsel for the appellant is that the incident was the outcome of a quarrel

and the act in question was not premeditated. According to the learned

counsel, there was no intention to kill so the act attributed to the accused

would not fall within the offence of murder. It would at best constitute a

lesser offence under section 304 of the IPC.6. Repudiating the submissions on behalf of the appellant, the learned

counsel for the respondent/State countered that though there is no ocular

witness to the incident, there is a complete chain of circumstantial

evidence which conclusively proves the charge against the

accused/appellant. It has been argued on behalf of the State that through

PW 1, PW 2, PW 4, PW 5 and PW 6 prosecution succeeded in proving that

the deceased was subjected to torture by the accused while the testimony

of PW 14 corroborated by the circumstantial evidence unerringly points to

the accused as the murderer of the deceased. Placing reliance upon the

decision reported in AIR 1986 Supreme Court 683 in the case of Jaspal

Singh versus State of Punjab learned counsel for the State argued that

the intention to cause the death of the victim is clear from the nature of the

injuries found on the person of deceased so the conviction of the appellant

under section 302 of the IPC is justified.

7. This now leads us to advert briefly to the witnesses examined by the

prosecution. PW 1 Dukhu Mal is the complainant who is the father of the

deceased. PW 2 Tapan Mal is the cousin brother of the deceased who

deposed regarding the assault upon her by the accused since his demand

for a cycle was not fulfilled. PW 3 Mohan Mondal is the scribe of the FIR

(exhibit 3). PW 4 Sabila Mal is a neighbour of the accused who testified

regarding a significant incriminating circumstance against the appellant.

PW 5 Rabi Mal is another co-villager of the accused/appellant who testifiedregarding the torture upon the deceased. PW 6 Debu Mal, a resident of the

neighbouring village spoke about the torture upon the deceased. PW 7

Aditi Das Gupta is the Deputy Magistrate who held inquest on the corpse

of the deceased. PW 8 Kalipada Mahato is the constable who identified the

dead body of the victim to the autopsy surgeon and seized the wearing

apparels of the deceased. PW 9 Pravash Chandra Chakroborty, the

Associate Professor and Head of the Department of Forensic and State

Medicine concurred with the opinion of the autopsy surgeon (PW 17) as to

the cause of death of the deceased. PW 10 Soma Mazumder is the Judicial

Magistrate who recorded the statement of witness Sakhi Mal (PW 14) under

section 164 of the CrPC. PW 11 Gopal Dey was posted as the Inspector-incharge

of Bankura P.S on the relevant date. He is a formal witness who

received the written complaint and registered the case against the accused.

He also drew up the formal FIR and endorsed the case for investigation to

S.I Ramagati Dutta (PW 16). PW 12 Constable Susanta Dutta is another

formal witness who witnessed the seizure of the wearing apparels of the

deceased. PW 13 ASI Anup Kumar Raj is also a formal witness of seizure.

PW 14 Sakhi Mal the sister of the accused is a vital witness for the

prosecution. PW 15 Mala Mal is yet another co-villager of the accused who

turned hostile during the trial. PW 16 S.I Ramagati Dutta is the

Investigating Officer and PW 17 Dr. Pralay Mazumdar held post mortem

examination on the corpse of the deceased.8. There being no ocular witness to the incident, prosecution case rests

entirely on circumstantial evidence. The incriminating facts and

circumstances on which prosecution led evidence may be broadly

enumerated as follows:

(1) Deceased was the wife of the accused and they were residing together in

the same house on the date of the incident.

(2) Deceased was subjected to torture by her husband (accused) over his

unfulfilled demand for a cycle.

(3) The accused/appellant was last seen with the deceased in the

courtyard of their house on the date of the incident.

(4) The (deceased)victim was found lying dead on a cot in the courtyard of

the house shortly after the assault upon her by the accused.

(5) Post occurrence conduct of the accused.

(6) The medical evidence of the autopsy surgeon (PW 17) corroborating the

prosecution version regarding the cause of death of the deceased.

(7) Silence of the accused on being questioned during his examination

under section 313 of the CrPC as to the cause of death of his wife.

9. It is not in dispute that the deceased was the wife of the accused and

they were residing together in the same house at the relevant time. This

vital piece of incriminating circumstance has been testified by PW 1, PW 2,

PW 4, PW 5, PW 14 and PW 15. In this context it is significant to refer to

the evidence of PW 14 the sister of the accused who categorically testifiedthat her brother accused Mahedeb Mal and his wife Khandi Mal resided in

a room while she (PW 14), her sister and mother resided in a separate

room. PW 15 a co-villager of the accused deposed in conformity with the

evidence of PW 14 by stating that the accused and his wife Khandi used to

reside together in a room while the mother and sister of the accused

resided in a separate room. The evidence regarding the factum of marriage

and that the accused and the deceased resided together remained

unchallenged in cross-examination. Even during his examination under

section 313 of the CrPC accused admitted the aforesaid facts in reply to

question nos. 1 and 3 which are reproduced hereunder:

“Q.1. It is revealed from the deposition of witness no. 1 and other witnesses

that the daughter of witness no. 1 Khandi alias Sulochana was your wife

and you have a four month old child. What will you say?

Ans. It is true.

……………………………………………………………..

Q.3. Witness no. 14 Sakhi Mal who is your sister has stated that you used

to live with your wife in a room and your sister and mother stayed in

another thatched room, adjacent to your room. What will you say ?

Ans. It is true”10. Through the evidence of PW 1, PW 2, PW 4 and PW 5 prosecution

sought to prove that the deceased was subjected to torture by the accused.

PW1 father of the deceased testified in his evidence that his daughter

disclosed to him that accused would torture and assault her over his

demand for a cycle. This fact also finds place in the FIR (exhibit 3).

Evidently PW 1 deposed in conformity with the FIR on this material aspect.

Therefore it cannot be said that PW1 introduced a false story of torture as

an afterthought to improve the case during the trial. Nothing could be

elicited in the cross-examination of PW1 to suggest that he had any reason

to depose falsely against the accused. The testimony of PW 1 regarding this

piece of incriminating circumstance has been corroborated by PW 2, PW 4

and PW 5. PW 2 stated in his evidence that there was a talk of giving one

cycle at the time of marriage of Khandi. He (PW 2) was told by Khandi that

as the cycle was not given to the accused, he would beat her. It has

surfaced in the cross-examination of PW 2 that the panchayat member

Anna Mondal was informed verbally about the torture and the accused was

warned by the said panchayat member whereafter for some time accused

did not torture Khandi. Nothing could be brought on record by way of

cross-examination of this witness to show that he was inimically disposed

to the accused. On the contrary, it has emerged in the cross-examination

of PW 2 that he had visiting terms with the accused. So there was no

reason for him to depose falsely against the accused. PW 4 is an

independent witness who supported the version of the complainantregarding the torture upon the deceased. The relevant portion of the

evidence of PW 4 is reproduced hereunder:

“After her marriage for 3/4 months Khandi Mal was treated well but later

she was subjected to torture in her husband’s house as Khandi’s father

could not give one cycle to the accused as per their agreement. I heard the

cries and noise when she was tortured. I could hear this as my house was

very near to their house”. No contradiction could be pointed out in the

aforesaid portion of the evidence of PW4 in relation to her statement made

under section 161 of the CrPC during investigation. The evidence of PW 4

remained unscathed in cross-examination. Nothing could be elicited from

the cross-examination of this witness to suggest that she had any reason

to depose falsely against the accused. It is evident that PW 4 deposed

spontaneously without any exaggeration. The evidence of PW 4 inspires

confidence and is worthy of credence. PW 5 is another independent witness

who spoke about the torture in the following words :

“Initially Khandi was treated well but later she was tortured by her

husband in connection with his demand for a cycle. I came to know of the

said torture on Khandi as she would tell the same to us”. No contradiction

has emerged in the evidence of PW 5 in relation to his statement made

during investigation. There is nothing to suggest in the cross examination

of PW 5 that he had any grudge against the accused. On the contrary, PW

5 had cordial relation with the accused as is evident from his crossexamination wherein he disclosed that he had visiting terms with the

accused. No motive could be assigned to PW 5 for deposing falsely against

the accused. For the reasons discussed we are convinced that the second

mentioned incriminating circumstance against the accused has been

proved by credible and unimpeachable evidence.

11. In the case of Bodh Raj alias Bodha and others versus State of

Jammu and Kashmir reported in AIR 2002 Supreme Court 3164 the

Apex Court held that the last seen theory comes into play where the time

gap between the point of time when the deceased was last seen alive in the

company of the accused and when the deceased is found dead is so small

that the possibility of any person other than the accused being the author

of the crime becomes impossible. In the case before us prosecution strived

to prove through PW 14 this crucial piece of incriminating circumstance.

PW 14, sister of the accused, for obvious reasons turned hostile during the

trial to help the accused. Though PW 14 resiled from her statement made

under section 161 of the CrPC during investigation as well as from her

statement under section 164 of the CrPC, her evidence does not get wiped

out in toto. It is settled law that the evidence of a hostile witness can be

relied upon to the extent to which it supports the prosecution version of

the incident. In the case of Bhajju alias Karan Singh versus State of M.P.