Whether the court can convict accused in pocso case if victim and her family members have turned hostile?

 • Law on the point of hostile witness

7. The principle on the point of considering the part of testimony of hostile witness comes into picture only when Court can separate:-

(a) the part which is deposed by the witness in favour of the prosecution and;

(b) the part which is not deposed in favour of the prosecution.

8. Furthermore, this principle will not come into picture, if the prosecution witness has totally resiled and not deposed a single fact thereby either implicating the accused or showing some connection with the accused. For e.g.- if the first informant/victim only admits signature on FIR but does not depose single fact in favour of the prosecution, then how the 'law on the point of hostile witness' will come into picture. Trial Court has not at all gone into all these issues and erroneously concluded about the guilt of the accused. I will deal with this principle vis-a-vis facts in latter part of my judgment.

• About view of this Court on hostile witness

36. As said above, when the evidence of hostile witness is appreciated, there are various angles. They can be summarized as follows :--

• Types of hostile witnesses

a. A witness has turned total hostile mean to say that he has not deposed single fact in chief examination appearing in previous police statement.

b. A witness has deposed few facts only but omitted to depose remaining facts as per his police statement.

c. A witness has not deposed a single fact but when he is cross examined by A.P.P. in charge, then he has admitted to suggestive questions put to him.

d. A witness has supported the prosecution case in its entirety but he has given answers damaging the earlier answers, when he is cross-examined on behalf of the defence.

37. If such are the possibilities faced by the criminal court, how one can make general proposition that 'evidence of hostile witness cannot be brushed aside totally'?. Ultimately it depends upon the extent of resiling from previous statement while giving evidence before the Court. The law laid down by Hon'ble Supreme Court on the point of 'evidentiary value to be attached to testimony of hostile witness' need to be applied on the set of facts and circumstances of each case.

38. On this background, it needs to be ascertained whether the trial court has assessed the evidence adduced before it properly. When the four witnesses including victim and her relatives have resiled from their previous statement and they were cross examined by the local prosecutor, the facts deposed by them can be summarized as follows :--

39. From the above reproduced references, what inference can be drawn? If we perused all the testimonies, one fact is very clear and that is-- all the witnesses have decided not to depose the facts stated by them before the police/Magistrate. Because otherwise why the police/Magistrate will mention all the facts in their statements unless those facts were stated to them. There is no reason for the police/Magistrate to state those facts on their own. But the question is will it be sufficient to convict the accused ? The Hon'ble Supreme Court has opined to apply the test of deciphering the facts supporting the prosecution case from the total facts deposed by the hostile witness. But what is important is after deciphering those facts, ultimately the Court has to consider what remains and how much weightage can be attached to those facts. The Court has to assess 'what inferences can be drawn'. So it will be unjustified to consider those facts and to convict the accused, without assessing its evidentiary value.

Whereas in the case involved in this appeal, the victim and her uncle eye witness have totally resiled from their version before the police. There is reason to believe that these witnesses do not want to depose before the Court the incidents narrated by them to the police. Though medical case papers are admitted, there has to be link between the medical findings and author of crime being the Appellant.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

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