Madras High Court
Radha @ Radhakrishnan vs State Of Tamil Nadu
Author: M.Dhandapani
Bench: M.Dhandapani
____________
Crl. A. No.123/2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
28.02.2020 06.03.2020
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
CRL. A. NO. 123 OF 2005
AND
M.P. NO. 1 OF 2012
Radha @ Radhakrishnan .. Appellant
- Vs -
State of Tamil Nadu
rep. By Inspector of Police
K-3, Arumbakkam Police Station
Chennai. .. Respondent
Criminal Appeals filed u/s 374 (2) of the Code of Criminal Procedure
against the conviction and sentence dated 05.08.04 on the file of the Addl.
Sessions Judge, Additional District & Sessions Court (FTC-I), Chennai, made in S.C.
No.333 of 2004.
For Appellant : Mr. N.Elumalai
For Respondent : Mr. C.Iyyapparaj, APP
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http://www.judis.nic.in
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Crl. A. No.123/2005
JUDGMENT
The appellant was charged and tried before the learned Addl. Sessions Judge, Addl. District & Sessions Court (FTC-I), Chennai, for the offence u/s 307 IPC and on being found guilty, the appellant was convicted and sentenced to rigorous imprisonment for a period of 10 years together with a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for a period of two years. Set off, as applicable u/s 428 Cr.P.C. was ordered. The appellant, aggrieved by the said conviction and sentence, has preferred the present appeal.
2. The case of the prosecution as unfolded from the evidence available on record, is as under :-
On 15.6.03, at about 6.30 p.m., when the complainant/victim, P.W.1 along with his friends, viz., P.W.s 2 and 4, were playing carrom in Manimekalai Lane, C.P. Sittrarasu Street, the accused, along with two of his friends, came to the said place at about 6.30 p.m. and castigated P.W.1 and his friends. Thereafter, the accused returned to the said place at about 7.30 p.m. and abused P.W.1 and his friends in filthy language and caught hold of P.W.2 and weilding a knife from his waise, stabbed P.W.2, with an intention to kill him, on the chest of P.W.2 and 2/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 further threatened the general public with dire consequences and, thereafter, fled away from the scene of occurrence.
3. Immediately, P.W.2 was taken to Mohan Hospital for treatment and from there he was shifted to Kilpauk Medical College Hospital, where P.W.7 examined him and issued Ex.P-6, accident register. Thereafter, he was referred to the surgical expert where P.W.6, the Doctor, examined him at the Emergency Ward. Since P.W.2 had sustained grievous injury, which injury had penetrated the liver, surgery was performed on P.W.1. P.W.6 issued the wound certificate Ex.P-4 and Medical chits, Ex.P-5.
4. On coming to know of the occurrence, P.W.8, the Inspector of Police, reached the Hospital at about 11.30 p.m. On 15.6.03 and examined P.W.2 and at that time, P.W.1 came forward and gave the written complaint, which was registered in Crime No.598/03 for an offence u/s 307 IPC. P.W.8 prepared the printed FIR, Ex.P-7 and taking up investigation, P.W.8 visited the scene of occurrence and prepared observation mahazar, Ex.P-9 and drew the rough sketch, Ex.P-8. He examined P.w.s 1 to 4 and other witnesses and recorded their statements. On 17.6.03, the accused surrendered before the Court and on 3/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 27.6.03, the accused for taken for custodial interrogation by filing necessary application and during the interrogation, the accused came forward to give a voluntary confession statement, which was reduced into writing, the admissible portion of which is marked as Ex.P-2. Pursuant to the confession statement, the accused took P.W.8 to the milk booth at SBI Colony and from the top of the roof of the milk booth, took out the knife, M.O.1, which was used to stab P.W.1 and the same was seized in the presence of witnesses. P.W.8 continuing with his investigation examined the doctors, who treated P.W.2 and recorded their statements. On completion of investigation, P.W.8 filed the final report against the accused on 7.11.03 before the court below.
5. The accused was furnished with the relied upon documents u/s 207 Cr.P.C. and the case was committed to the Court of Session, which was thereafter made over to the Court of I Addl. District & Sessions Judge (FTC-I) and a charge charge u/s 307 was framed. When questioned, the accused pleaded not guilty.
6. To prove the case, the prosecution examined P.W.s 1 to 8 marked Exs.P-1 to P-9 and M.O.1. When the accused was questioned u/s 313 Cr.P.C. about the incriminating circumstances appearing against him, he denied the 4/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 same as false. On the side of the defence, neither any oral evidence nor any documentary evidence was adduced. The trial court, after hearing either side and after considering the materials, both oral and documentary, convicted and sentenced the accused as aforesaid, aggrieved by which the accused/appellant is before this Court by filing the present appeal.
7. Learned counsel appearing for the appellant submitted that the case of the prosecution bristles not only with infirmities and inconsistencies in the evidence of the witnesses, but it is a case of no evidence. It is the submission of the learned counsel that P.W.s 1, 2 and 4 of whom P.W.2 is the injured victim, who are projected to be eye witnesses to the occurrence have turned hostile. Further, P.W.5, the witness, who was examined to prove the recovery of the weapon of offence, has categorically, in cross examination deposed that the weapon was taken out from the place by the police. Except for the evidence of the doctors, P.W.s 6 and 7, who have spoken about the injury, there is no other evidence which connects the accused with the crime. It is the submission of the learned counsel for the appellant that the occurrence having taken place in an open area, it is incumbent on the prosecution to examine independent witnesses, who corroborate the evidence of the investigation officer. However, in the case 5/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 on hand, the independent witnesses, though examined, they having turned hostile, no reliance can be placed on their evidence vis-a-vis the evidence of P.W.8, the investigating officer to find the appellant guilty.
8. It is the further submission of the learned counsel for the appellant that even during the questioning of the accused u/s 313 Cr.P.C., the accused has categorically stated that he was taken to the police station and a false case has been foisted on him and the testimonies of the prosecution witnesses would only vindicate the stand of the appellant that all is not well with the prosecution and the case has been clearly foisted on the accused.
9. It is the further submission of the learned counsel for the appellant that the appellant, on the date of the occurrence as well on the date of his production before the court, was a juvenile, having not completed 18 years of age and, therefore, the appellant cannot be put to trial under the provisions of the Indian Penal Code. However, the prosecution has suppressed the said fact before the trial court and has conducted the trial under the regular penal laws, which is impermissible. It is the further submission of the learned counsel for the appellant that the prosecution had obtained details from the Headmaster, where 6/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 the appellant had studied with regard to the transfer certificate issued to him, which categorically proves that the appellant was a juvenile during trial. Necessary documentary proof in support of the age of the appellant are placed before the Court and it is therefore submitted that being the case, the trial under the penal laws itself is impermissible and in this regard, reliance was placed on the judgment of the Apex Court in Vaneet Kumar Gupta @ Dharminder – Vs – State of Punjab (2009 (17) SCC 587).
10. Per contra, Mr.Iyyapparaj, learned Addl. Public Prosecutor appearing for the respondent submitted that though P.W.s 1, 2 and 4 have turned hostile, nevertheless, P.W.s 6 and 7, the doctors, who are the persons, who examined P.W.2 at the initial point of time for the injury sustained by him, have deposed that P.W.s 1 and 2 have informed them that the injuries were sustained by P.W.2 on being stabbed by a known person with knife. It is further submitted by the learned Addl. Public Prosecutor that Exs.P-4 and P-6 reveals that the injuries were inflicted by known person on the body of P.W.2.
11. It is the submission of the learned Addl. Public Prosecutor that the hostility of P.W.s 1 to 4 would stand testimony to the hardcore nature of the 7/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 accused. It is the submission of the learned Addl. Public Prosecutor that but for the hardcore nature of the accused, who is a habitual offender and against whom 35 cases are pending at various stages, there is nothing sinister in the prosecution witnesses, P.W.s 1 to 4 turning hostile. It is further submitted by the learned Addl. Public Prosecutor that the appellant, being a habitual offender, was dealt with under the preventive detention law as well. It is therefore submitted by the learned Addl. Public Prosecutor that though this Court cannot take cognizance of the cases pending against the appellant, as the same is still in the investigative stage, however, this Court, on the materials available and in view of the hostility exhibited by the prosecution witnesses, coupled with the criminal antecedents of the appellant, is fully empowered to draw an inference as to the habitual nature of the appellant with regard to his outlook on the society. It is the submission of the learned Addl. Public Prosecutor that merely because independent witnesses have turned hostile, that cannot be put against the prosecution, as the prosecution had examined independent witnesses and for reasons best known to them, they have turned hostile and necessary inference, as warranted, requires to be drawn by this Court with a view to render complete justice. It is therefore submitted that the trial court, on proper appreciation of the materials available on record, has thought it fit to convict the appellant and, therefore, no 8/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 interference is warranted with the well considered findings recorded by the court below.
12. On the question of juvenility of the appellant, as raised at this point of time, it is the submission of the learned Addl. Public Prosecutor that though the question of juvenility can be raised by the accused at any point of time, be it during trial or even in the appellate stage, however, merely by producing certain documentary evidence, but not proving the same in a manner known to law, the burden cannot be shifted on the prosecution to prove the age of the accused, as that was not a point raised in defence at the time of trial. It is the further submission of the learned Addl. Public Prosecutor that the documents produced by the appellant should satisfy the tests as prescribed u/s 35 of the Evidence Act and in the absence of the same, pushing it to the forefront to the benefit of the accused, would be against the ratio laid down by the Apex Court.
13. This Court paid its undivided attention to the submissions advanced by the learned counsel appearing on either side, both on the question of the evidence available on record, as also on the juvenility of the appellant and also adverted to the various provisions of law with regard to the documentary 9/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 evidence with regard to proof of juvenility and the decisions relied on by the learned counsel for the appellant.
14. Before embarking upon analysing the evidence available on record to arrive at a finding as to the culpability of the appellant in the commission of the offence, since a preliminary issue, relating to the juvenility of the appellant at the time of the occurrence and during the trial has been raised, this Court, proceeds to analyse the evidence to find out the veracity of the materials based on which the said issue could be decided.
15. M.P. No.1 of 2012 has been filed by the appellant to permit him to adduce additional evidence through examination of the petitioner either as a witness and to permit him to mark his birth certificate, school certificate and family ration card as exhibits. According to the petitioner, he was born on 5.5.1986 and the occurrence is alleged to have taken place on 15.6.03. According to the petitioner, as on 15.6.03, the petitioner had not completed 18 years and for all purposes, would fall under the definition of 'Child' and 'Child in conflict with law' on the said date as is found in Section 2 (12) and (13) of the Juvenile 10/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 Justice (Care & Protection) Act, (for short the 'Act') and, therefore, the offence would not be triable under the regular penal laws in vogue.
16. The appellant, by filing the above petition, intends to mark the birth certificate, school certificate and family ration card as exhibits to prove his date of birth in claim of his juvenility. Section 35 of the Evidence Act deals with relevancy of entry in public records, which are sought to be relied upon as documents. For better clarity, the relevant provision is quoted hereunder :-
“35. Relevancy of entry in public record made in performance of duty. –– An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performances of a duty specially enjoined by the law of the country in which such book, register or [record or an electronic record], is kept, is itself a relevant fact.”
17. Reliance has been placed on Section 35 of the Evidence Act by the learned Addl. Public Prosecutor to submit that the document, which is alleged to be the birth certificate and school certificate, though sought to be introduced in evidence, however, without authenticating the same in a manner known to law, 11/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 it would be wholly unsafe to rely upon the said documents as the ingredients mentioned in Section 35 of the Evidence Act have not been fulfilled.
18. Section 35 of the Evidence Act deals with entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performances of a duty specially enjoined by the law of the country in which such book, register is kept.
19. Therefore, the necessary ingredients that needs to be fulfilled for the purpose of accepting the materials as evidence u/s 35 of the Evidence Act is that the entry should be in any public or other official book, register or record stating a fact in issue and that should have been made by a public servant in the discharge of his official duty or by any person in the performance of such duty.
20. Three documents, viz., the birth certificate, school certificate and family ration card are sought to be introduced in evidence by filing M.P. No.1/2012. However, the typed set of papers annexed with the said miscellaneous petition reveals that only the birth certificate alleged to be issued 12/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 by the Corporation of Madras and the transfer certificate issued by the school, in which the appellant is alleged to have had his schooling are alone enclosed.
21. Further, the prayer in the miscellaneous petition is only to permit the petitioner to either as a witness or to mark the said documents, which are annexed in the miscellaneous petition. The persons, who have issued the said documents/certificates are not sought to be examined but the documents alone are sought to be introduced in evidence.
22. A perusal of the birth certificate reveals that the said document is alleged to have been issued by the Corporation of Madras on 7.6.1989 for the birth of a male child on 5.5.1986. There is a lapse of three years from the time of birth of the child to the time of obtaining the birth certificate. Further, the document placed on record is a xerox copy of a birth certificate, which reveals that the name of the child recorded in the said birth certificate is R.Radhakrishnan. However, a perusal of the transfer certificate issued by the school authority, the name of the child is reflected as Radhakrishnan. RM. There is definitely a marked difference in the initials in both the documents. The original of the birth certificate not being placed before the Court, the delay of 13/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 three years in obtaining the birth certificate strikes at the root of the genuinty of the said document and in the absence of examining the official, who has issued the document, or even the public authority concerned, placing reliance on the said document to substantiate the juvenility of the appellant would be wholly unsafe at this distant point of time.
23. Similarly, copy of the transfer certificate is placed in the typed set of documents to impress this Court that the date of birth of the appellant as per the school records is also 5.5.1986. As already pointed out above, there is a difference in the name of the student, more especially in the initials. Further, to the naked eye, it reveals that the said addition of initials is an interpolation, as the handwriting of the name and the initials differ. Further, as per the said transfer certificate, the pupil had discontinued his studies/left the school on 18.4.02, but the transfer certificate has been applied for with regard to the said student only on 4.1.06. The veracity of the transfer certificate requires to be established by the appellant so as to enable this Court to take cognizance of the same.
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24. In Ravinder Singh Gorkhi – Vs – State of U.P. (2006 (5) SCC 584), the Hon'ble Supreme Court had occasion to deal with the case pertaining the school records relating to date of birth and in the said context, the Hon'ble Supreme Court held as under :-
“17.The school-leaving certificate was said to have been issued in the year 1998. A bare perusal of the said certificate would show that the appellant was said to have been admitted on 1-8-1967 and his name was struck off from the roll of the institution on 6-5-1972. The said school-leaving certificate was not issued in the ordinary course of business of the school. There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Evidence Act. No statement has further been made by the said Headmaster that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. The entries made in the school-leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Headmaster that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school, there was no reason as to why the same had not been produced.” 15/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005
25. In the case on hand, it is evident that the occurrence had taken place on 15.6.03 and the case was tried and judgment of conviction was rendered on 05.08.04. The appeal itself was filed in the year 2005. However, the transfer certificate itself was applied for only on 4.1.06, much after the filing of the appeal, which is relevant from the transfer certificate itself. Further, even after obtaining the transfer certificate in the year 2006, curiously, the miscellaneous petition for reception of the above documents as additional evidence has been filed before this Court only in the year 2012.
26. Though the said documents are sought to be marked, however, the appellant has not prayed for summoning the registers maintained by the school with regard to the students, which would unequivocally prove the issuance of the certificate. Further, the person in-charge of the affairs of the school is the proper person to be examined not only to speak about the authenticity of the certificate issued, but also about the student. It is to be noted that all the columns are found filled in the certificate, which raises a concern and to dispel all doubts, the appellant should have sought the leave of this Court to examine the person, who issued the transfer certificate and at the same time summoning the register maintained by the school authorities to establish his age. However, curiously, 16/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 instead of summoning the person who issued the certificate and also the registers maintained by the school, the appellant has prayed to introduce those documents, either by placing the same before the court or through himself. The said procedure could in no way be said to be a prudent procedure to prove the genuinty of the documents as also the juvenility of the appellant.
27. A holistic consideration of all the above aspects cumulatively raises a doubt in the mind of the court as to the veracity of the transfer certificate. Further, the prayer made in the miscellaneous petition is to permit the petitioner to mark the documents, which are in his possession and not for enabling to mark those documents and to examiner the issuer of the said documents. In the absence of the person, who had issued the certificate being examined, this Court is left with no other alternative but to infer that the entries made in the school leaving certificate had been prepared only for the purpose of defeating the prosecution. No other documents, except the school certificate is being pressed into service to prove the age of the appellant. In the absence of any register maintained by the school showing the age of the appellant, the school leaving certificate having not been issued in the ordinary course of business of the school, there is nothing on record to show that the said date of birth was 17/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 recorded in the register maintained by the school in terms of the requirements of law as contained in Section 35 of the Evidence Act and, therefore, the said document cannot be termed to be a valid piece of evidence falling within Section 35 of the Evidence Act.
28. The reasons aforesaid, enumerated by this Court above places an embargo on this Court to allow the present petition and accept the said documents as evidence. The present school certificate placed before this Court is only for the purpose of defeating the legitimate prosecution launched by the respondent, which has culminated in the judgment of conviction and, therefore, this Court is not inclined to entertain the above miscellaneous petition at this belated point of time. Though it is trite that the question of juvenility can be established at any point of time in the judicial proceedings, be it during trial or even during the appellate stage, however, it has to be done in accordance with law and failure to follow the rule of law only discredits the evidence, both oral and documentary.
29. This Court has taken note of the decision of the Hon'ble Apex Court in Vaneet Kumar's case (supra) relied on by the appellant and this Court is in 18/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 respectful agreement with the same. However, for the reaons assigned above, this Court, is not inclined to accept the said certificates, as genuine documents, more so, in the light of the interpolations in the same and there being no sufficient corroboration not only between the two certificates, but the certificates having not been established as genuine in a manner known to law, as aforesaid. The appellant having not prayed for establishing the authenticity of the said certificates, by itself, creates an indelible doubt in the mind of this Court as to its genuinty and, therefore, this Court rejects the said prayer as sought for by the appellant. Therefore, this Court, is not inclined to proceed any further with the question of juvenility of the appellant.
30. Now this Court is imposed with the task of analysing the evidence on record to find out whether the prosecution has proved its case beyond reasonable doubt and whether the judgment of conviction recorded by the court below is liable to be sustained.
31. Totally eight witnesses have been examined of whom, P.W.s 1 to 4 are eye witnesses to the occurrence and P.W.2 is the injured/victim eye witness. It is true that P.W.s 1 to 4 have turned hostile. It is the submission of the learned 19/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 counsel for the appellant that the eye witnesses to the occurrence having turned hostile, there is no evidence, much less, acceptable evidence available on record to sustain the conviction.
32. Instances of key witnesses turning hostile and irretrievably poiling the cases for prosecution are not rare. Reports of witnesses turning hostile and blatantly resiling from their earlier statements beofre the police in many cases, not only shocks the conscience of the civil society but also shatters the faith reposed by the citizens in the working of the criminal justice system. Witnesses are being bullied or gained over by the lure or lucre and they, without any moral regret, retract from their statements made previously before the police. The upshot is the acquittal of persons responsible for commission of henious crimes - triumph of the devils and sorrow for angels. As Lord Devlin puts it “when a criminal goes free, it is as much a failure of the abstract justice as when an innocent man is convicted”.
33. The Hon'ble Supreme Court, in the case of Ramesh & Ors. – Vs – State of Haryana (2017 (1) SCC 529 :: AIR 2016 SC 5554) had occasion to consider the phenomenon that is being a regular feature in criminal cases, the witnesses 20/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 turning hostile and in that context, analysing the ratio laid down on the said aspect as also the reasons discerned for such an attitude, held as under :-
“39. We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behaviour or attitude of the witnesses. It is possible that when the statements of such witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 by the police during investigation, the investigating officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the court and justifiably so. However, this is no longer the reason in most of the cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations.
40. In some of the judgments in past few years, this Court has commented upon such peculiar behaviour of witnesses turning hostile and we would like to quote from few such judgments. In Krishna Mochi v. State of Bihar [Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 : 2002 SCC (Cri) 1220] , this Court observed as under:
“31. It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, 21/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.” * * * * * * * *
43. In State v. Sanjeev Nanda [State v. Sanjeev Nanda, (2012) 8 SCC 450 : (2012) 4 SCC (Civ) 487 : (2012) 3 SCC (Civ) 899] , the Court felt constrained in reiterating the growing disturbing trend:
“99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law, thereby eroding people's faith in the system.
100. This Court in State of U.P. v. Ramesh Prasad Misra [State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360 : 1996 SCC (Cri) 1278] held that it is equally settled law that the evidence of a hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Supt. of Police [K.Anbazhagan v. Supt. of Police, (2004) 3 SCC 767 : 2004 SCC 22/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 (Cri) 882] , this Court held that if a court 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, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court [Sanjeev Nanda v. State, 2009 SCC OnLine Del 2039 : (2009) 160 DLT 775] and they found the accused guilty.
101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Manu Sharma v. State (NCT of Delhi) [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] and in Zahira Habibullah Sheikh (5) v.State of Gujarat [Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation.
Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the court shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 IPC imposes punishment for giving false evidence but is seldom invoked.” 23/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005
44. On the analysis of various cases, the following reasons can be discerned which make witnesses retracting their statements before the court and turning hostile:
(i) Threat/Intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of stock witnesses.
(v) Protracted trials.
(vi) Hassles faced by the witnesses during investigation and trial.
(vii) Non-existence of any clear-cut legislation to check hostility of witness.
45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said: “witnesses are the eyes and ears of justice”. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given inZahira Habibullah case[Zahira Habibullah Sheikh (5)v.State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] as well.
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46. Justifying the measures to be taken for witness protection to enable the witnesses to depose truthfully and without fear, Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked as under:
“11.3. Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise. … Time has come for a comprehensive law being enacted for protection of the witness and members of his family.”
47. Almost to similar effect are the observations of the Law Commission of India in its 198th Report [ Report on “witness identity protection and witness protection programmes”.] , as can be seen from the following discussion therein:
“The reason is not far to seek. In the case of victims of terrorism and sexual offences against women and juveniles, we are dealing with a section of society consisting of very vulnerable people, be they victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Penal Code, 1860 and other special enactments, some of which we have referred to above, there are bound to be absolutely similar situations for victims 25/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 and witnesses. While in the case of certain offences under special statutes such fear or danger to victims and witnesses may be more common and pronounced, in the case of victims and witnesses involved or concerned with some serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses, then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature falling under the Penal Code, 1860. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection.”
48. Apart from the above, another significant reason for witnesses turning hostile may be what is described as “culture of compromise”. Commenting upon such culture in rape trials, Pratiksha Bakshi [“Justice is a Secret: Compromise in Rape Trials” (2010) 44, Issue 3, Contributions to Indian Sociology, pp. 207-233] has highlighted this problem in the following manner:
“During the trial, compromise acts as a tool in the hands of defence lawyers and the accused to pressurise complainants and victims to change their testimonies in a courtroom. Let us turn to a recent case from Agra wherein a young Dalit woman was gang-raped and the rapist let off on bail. The accused threatened to rape the victim again if she did not compromise. Nearly a year after she was raped, she committed suicide. While we find that the judgment records that the victim committed suicide following the pressure to compromise, the judgment does not criminalise the pressure to compromise as criminal intimidation of the victim and her family. The normalising function of the socio-legal category of compromise converts 26/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 terror into a bargain in a context where there is no witness protection programme. This often accounts for why prosecution witnesses routinely turn hostile by the time the case comes on trial, if the victim does not lose the will to live. In other words, I have shown how legality is actually perceived as disruptive of sociality; in this instance, a sociality that is marked by caste based patriarchies, such that compromise is actively perceived, to put it in the words of a woman Judge of a District Court, as a mechanism for ‘restoring social relations in society’.”
49. In this regard, two articles by Daniela Berti delve into a sociological analysis of hostile witnesses, noting how village compromises (and possibly peer pressure) are a reason for witnesses turning hostile. In one of his articles [ Daniela Berti, “Courts of Law and Legal Practice”, pp. 6-7.] , he writes:
“For reasons that cannot be explained here, even the people who initiate a legal case may change their minds later on and pursue non-official forms of compromise or adjustment. Ethnographic observations of the cases that do make it to the criminal courtroom thus provide insight into the kinds of tensions that arise between local society and the State judicial administration. These tensions are particularly palpable when witnesses deny before the Judge what they allegedly said to the police during preliminary investigations. At this very moment they often become hostile. Here I must point out that the problem of what in common law terminology is called “hostile witnesses” is, in fact, general in India and has provoked many a reaction from Judges and politicians, as well as countless debates in newspaper editorials. Although this problem assumes particular relevance at high-profile, well-publicised 27/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 trials, where witnesses may be politically pressured or bribed, it is a recurring everyday situation with which Judges and prosecutors of any small district town are routinely faced. In many such cases, the hostile behaviour results from various dynamics that interfere with the trial's outcome — village or family solidarity, the sharing of the same illegal activity for which the accused has been incriminated (as in case of cannabis cultivation), political interests, family pressures, various forms of economic compensation, and so forth. Sometimes the witness becomes “hostile” simply because police records of his or her earlier testimony are plainly wrong. Judges themselves are well aware that the police do write false statements for the purpose of strengthening their cases. Though well known in judicial milieus, the dynamics just described have not yet been studied as they unfold over the course of a trial. My research suggests, however, that the witness's withdrawal from his or her previous statement is a crucial moment in the trial, one that clearly encapsulates the tensions arising between those involved in a trial and the court machinery itself.” “In my fieldwork experiences, witnesses become “hostile” not only when they are directly implicated in a case filed by the police, but also when they are on the side of the plaintiff's party. During the often rather long period that elapses between the police investigation and the trial itself, I often observed, the party who has lodged the complaint (and who becomes the main witness) can irreparably compromise the case with the other party by means of compensation, threat or blackmail.” (Emphasis Supplied) 28/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005
34. From the words of the Hon'ble Supreme Court above, it is clear that the criminal justice system is being plagued by culture compromise, which in turn, hits at the substratum of the justice. Threat and intimidation has been one of the major causes for the hostility of witnesses. It is true that “witnesses are the eyes and ears of justice” and wrong deposition of the witnesses in a court of law results in low conviction rate, thereby undermining the confidence of the public in the criminal justice delivery system. Weeding out the culture compromise is the greatest test not only for the prosecution, but equally for the judiciary as that culture, in no way, should tilt the scales in favour of the accused, thereby allowing them to walk out scot free. The scales of justice should be maintained in balance so that the wrong doer gets punished and the innocent is freed. It is not that mere fulfilling one of the limbs, viz., innocent is not punished, as has been followed time immemorial and being the hallmark of justice, should not be the norm and that both the limbs, viz., the wrong doer gets punished and the innocent is freed should be the platform for the judiciary to launch itself in safeguarding its citizens.
35. Just because the witnesses have turned hostile, that alone should not be the ground to acquit the accused. It is within the domain of the justice system 29/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 to separate the grain from the chaff, viz., act like a sieve, by filtering the evidence, leaving aside the hostility to holistically come to the conclusion as to the involvement of the accused in the offence.
36. With the above in mind, which is the need of the hour, this Court now proceeds to analyse threadbare the evidence of the witnesses, to arrive at a finding as to the involvement of the accused in the offence, projected by the prosecution.
37. What is the probative value that can be given to the evidence of a witness, who has turned hostile and whether the conviction of the accused can be based on the testimony of the hostile witnesses, has been examined by the Hon'ble Supreme Court in Bhajju v. State of M.P., (2012) 4 SCC 327, and the Hon'ble Supreme Court held as under :-
“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 Evidence Act enables the court, in its discretion, to permit the person, who 30/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 calls a witness, to put any question to him which might be put in cross-examination 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. These principles have been encompassed in the judgments of this Court in the following cases:
(a)Koli Lakhmanbhai Chanabhai v. State of Gujarat[(1999) 8 SCC 624 : 2000 SCC (Cri) 13] ,
(b)Prithi v. State of Haryana[(2010) 8 SCC 536 : (2010) 3 SCC (Cri) 960] ,
(c) Manu Sharma v. State (NCT of Delhi)[(2010) 6 SCC 1 :
(2010) 2 SCC (Cri) 1385] and
(d) Ramkrushna v. State of Maharashtra[(2007) 13 SCC 525 : (2009) 2 SCC (Cri) 427].” (Emphasis Supplied)
38. P.W.s 1, 2 and 4 are eye witnesses to the occurrence, of which P.W.2 is the injured eye witness. A careful perusal of the testimonies of P.W.s 1, 2 and 4 reveal that in chief examination, they have categorically deposed that the 31/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 accused had come to the place where they were playing carrom board and had picked up a quarrel in the earlier part of the evening only for the accused to return during later part of the evening, at about 7.30 p.m., to pick up the quarrel once again and in the course of the said transaction, the accused had stabbed P.W.2 on his chest. The testimonies of P.W.s 1, 2 and 4, corroborate each other not only on all material aspects, but their testimony is cogent and go hand-in-
hand with each other detailing the happenings during the course of the evening. However, curiously, on the same day of their chief examination, they were cross examined in the later part of the afternoon session and at that point of time, they have diametrically taken a 'U Turn' and had deposed that they do not know the accused. It is not that they have disputed the occurrence, but they have disputed their knowledge of the accused. P.W.2, the injured victim, had even gone to the extent of stating in cross examination that it was only at the behest of the prosecution that he has deposed knowledge about the accused.
39. It is curious to note one thing from the cross examination of P.W.s 1, 2 and 4. They have only pleaded that they are not aware about the occurrence. All the three witnesses, in cross examination have ditched their version spoken in chief examination. The cross examination of the above witnesses, to put it more 32/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 bluntly, is very crisp and except for disowning the incident, those witnesses have not spoken anything about the occurrence. The prosecution had declared them as hostile and cross examined them.
40. True it is that the witnesses, who were the fulcrum of the prosecution case have turned hostile. Could their hostility alone turn the tables in favour of the accused entitling him for an acquittal is the crucial question that falls for consideration before this Court.
41. As stated above, the deposition of P.W.s 1, 2 and 4 in chief examination is detailed and they have narrated the course of happenings of the evening on the day of occurrence. But, later in the day during cross examination, they have disowned their deposition and went against the prosecution. May be, merely looking at the evidence, it may be concluded that their turning hostile leaves the prosecution dumbfounded and without anywhere to turn around, thereby, the appellant walks out free. However, it is not the evidence alone that needs to be looked into, but equally the documentary evidence, which have been tabled by the prosecution that also needs to be taken into consideration to find 33/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 out whether the former part of the deposition of P.W.s 1, 2 and 4 is the truth or the latter part of their deposition is the truth.
42. Exs.P-4 and P-6 are the wound certificate and accident register pertaining to the injury sustained by P.W.2, which were issued by P.W.s 6 and 7 respectively. A perusal of Exs.P-4 and P-6 reveals that to the doctor, who treated P.W.2, viz., P.W.s 6 and 7, a categorical admission has been made that P.W.2 had suffered the said injury on account of assault by a known person with knife at about 7.30 p.m. near his house. According to the deposition of P.W.s 1, 2 and 4 in chief examination, P.W.2 was taken to the hospital by P.W.s 1 and 4. The said aspect is not in dispute. There is no elicitation in cross, which is anything contra to the above. Exs.P-4 and P-6, being contemporaneous documents, which have been issued by P.W.s 6 and 7 and also spoken to by P.W.s 1, 2 and 4 and corroborated by P.W.8, their hostility in cross is not cataclysmic to the prosecution, but their evidence in chief is in material corroboration to the documentary evidence and also the evidence of P.W.s 6 and 7.
43. Further, it is to be pointed out that the injury sustained by P.W.2 is not in dispute, so also the treatment taken by him. It is the categorical case of the 34/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 prosecution that the injury on P.W.2 was inflicted by the accused. Further, it is the case of the prosecution that Ex.P-1 complaint was given by P.W.1. P.W.1 also in his evidence in chief has also admitted that he gave the complaint, Ex.P-1. However, in cross, except for stating that he has not witnessed the occurrence, there is nothing in the cross to discredit the complaint given by P.W.1. Once the complaint, Ex.P-1 is accepted to be a true and genuine document, which has been given by P.W.1 coupled with the testimony of P.W.1 in chief, which stands corroborated on all aspects by P.W.s 2 and 4, the mere hostility of P.W.s 1, 2 and 4 stating that they do not know the accused or do not know what happened on that day would not be in any way detrimental to the case of the prosecution.
44. P.W.s 6 and 7 are the doctors, who examined P.W.2. P.W.7, the doctor, who issued Ex.P-6, accident register, has deposed in chief that the injured victim, viz., P.W.2 was brought before him by P.W.1 and that he was informed that P.W.2 had suffered the said injury at the hands of a known person at about 7.30 p.m., near his house. However, in cross examination, no contradiction has been elicited from P.W.7 and equally so, the evidence of P.W.7 is corroborated by P.W.s 1, 2 and 4. P.W.6, the doctor, who performed surgery on P.W.2 has also deposed in chief that she was informed by the persons, who brought P.W.2 that 35/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 the injury sustained by P.W.2 was caused by a known person. Except for eliciting whether such an injury could have been sustained by the injured falling on some sharp object, no worthwhile contradiction has been elicited and the testimony of P.W.6 is in corroboration with the testimony of P.W.s 1, 2 and 4 and also the medical testimony of the doctor, P.W.7.
45. The above documentary materials available on record coupled with the medical testimony of P.W.s 6 and 7, amply corroborate the testimony of P.W.s 1, 2 and 4 in chief examination. In the backdrop of the above materials, P.W.1 not having disowned the complaint, Ex.P-1 and further Exs.P-4 and P-6 reveal that not only P.W.2 had sustained the injury, but that the said injury was inflicted by a known person, necessarily an inference is to be drawn that the testimony of P.W.s 1, 2 and 4 in chief examination reveals the true happenings at the scene of occurrence on the fateful day in question and their mere retraction in cross, without there being any other materials, cannot be held to come in aid of the appellant. In such a backdrop of the evidence available before the Court, the trial court has arrived at a finding that the witnesses, more particularly, the eye witnesses, viz., P.W.s 1, 2 and 4 have either been threatened or tampered with by the accused. To buttress the said finding, learned Addl. Public 36/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 Prosecutor placed before this Court, a list of cases in which the accused is under the scanner of the prosecution and in some of the cases cognizance has also been taken.
46. A perusal of the list of cases reveal that barring a few sections in the Indian Penal Code, the activities of the appellant/accused have spread itself far and wide that it takes within its fold almost all the offences, which the framers of the penal code, have thought about. To list out a few, the appellant/accused has been charged for the offences u/s 302, 307, 363, 341, 324, 384, 506 (ii), 294 (b), 392, 427, 147, 148, 120, 397, 323, 336 IPC and Section 3 (1) of the TNPPDL Act r/w 34 IPC. The list of offences stretches itself far and wide and the arms of law have clutched upon the appellant/accused with full force. It is to be pointed out that the offences, for which the appellant/accused has been charged, as seen above, shows that almost all the offences are heinous in nature, which only throws more light on the character and conduct of the appellant vis-a-vis the society. The appellant/accused is a habitual offender and many of the offences have been repeated by him, which has culminated in the registering of around 35 FIR's against him which are at various stages of prosecution. 37/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005
47. Though, it is judicially accepted that the Courts must be circumspect while drawing adverse inference against the accused in cases pending trial and under investigation, however, the attitude of the prosecution witnesses in turning hostile, after deposing clearly in chief corroborating the oral and documentary evidence, necessitates this Court to deviate from the well accepted judicial thinking and traverse on a different line, as the need of the hour necessitates a different way of thinking for the benefit of the society at large.
48. One more crucial factor, which weighs in the mind of this Court is the fact that it is placed before the Court by the learned Addl. Public Prosecutor that the appellant is absconding and, therefore, many of the cases against him have been at a standstill. It is further submitted by the learned Addl. Public Prosecutor that all out efforts are being made to trace the appellant for trying him in the other cases.
49. With regard to the above submission, learned counsel appearing for the appellant is unable to state before the court as to the whereabouts of the appellant. Equally, the learned counsel appearing for the appellant is not able to 38/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 state that the appellant is complying with the bail conditions imposed by this Court vide order dated 6.4.06.
50. The witnesses in a case are the eyes and ears of the justice system and any manipulation of those witnesses, including threat, coercion, intimidation, lure, would definitely adversely affect the prosecution case. However, a balanced approach by segregating the grain from the chaff would in effect unerringly point the finger on the accused, had the accused adopted such a course. In the case on hand, as held by the court below, such a course adopted by the accused cannot be completely overruled and in such a scenario, the justice delivery system should break itself from its self-imposed shackles with a view to uphold the truth and majesty of justice, lest the faith on the judicial system, by the common man, would start dwindling.
51. The trial court, on the materials available on record, and further taking into consideration the hostile attitude exhibited by the eye witnesses in cross, after passing through the mid-day break, has come to the right conclusion that all was not well between the time they deposed in chief and the time they deposed in cross and the intervening mid-day break has been utilised by the accused to his 39/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 benefit, has analysed the whole scenario coupled with the evidence and has arrived at a just and reasonable finding, which does not warrant interference at the hands of this Court.
52. Once this Court has confirmed the conviction imposed on the accused/appellant, the next sequence that follows is the sentence to be imposed on the appellant. The trial court has sentenced the appellant to rigorous imprisonment for a period of ten years together with fine. It is seen from the materials available on record that there was a quarrel between the appellant/accused and P.W.2, though it is an accepted fact that the appellant/accused had come from some other area to the place of stay of P.W.2 and had picked up the quarrel. The quarrel resulted in the incident of the accused stabbing P.W.2. It is to be kept in mind here that the evidence does not reveal that the accused took the knife, which was lying there at the scene of occurrence and stabbed P.W.2. Rather, the accused stabbed P.W.2 with the knife, which he was carrying on his person. This clearly shows the character and the nature of the person of the accused. However, the quarrel as spoken to by the prosecution witnesses though does not reveal much heat between the 40/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 quarreling persons, nevertheless, the character of the accused came to the fore, which resulted in his act of stabbing P.W.2.
53. On an overall consideration of the evidence available on record with regard to the incident proper and the situation prevailing at that time, the temerity of the appellant, this Court is of the considered view that the sentence of ten years imposed on the appellant is rather on the high side and, this Court feels that a sentence of five years would be a just and reasonable sentence in the facts and circumstances of the case.
54. In the result, the criminal appeal is dismissed confirming the conviction imposed on the appellant/accused, but, however, modifying the sentence of rigorous imprisonment imposed on the accused/appellant from ten years to five years. Accordingly, the appellant/accused is convicted and sentenced to rigorous imprisonment for a period of five years. Fine amount imposed by the trial court, as also the default sentence, stands confirmed. Set off, as provided by the court below, u/s 428 Cr.P.C., is also retained. It is reported that the appellant/accused is on bail. As stated above, the accused/appellant is said to be absconding. In the above circumstances, the respondents/law enforcing agency, is directed to take 41/43 http://www.judis.nic.in ____________ Crl. A. No.123/2005 all out efforts to secure the presence of the accused and commit him to prison to undergo the remaining period of sentence imposed on him. Consequently, in view of the discussion made above, the connected miscellaneous petition stands dismissed.
06.03.2020
Index : Yes / No
Internet : Yes / No
GLN
To
1. The Addl. Sessions Judge
Addl. District & Sessions Court (FTC-I)
Chennai.
2. The Public Prosecutor
High Court, Madras.
42/43
http://www.judis.nic.in
____________
Crl. A. No.123/2005
M.DHANDAPANI, J.
GLN
PRE-DELIVERY JUDGMENT IN
CRL. A. NO. 123 OF 2005
Pronounced on
06.03.2020
43/43
http://www.judis.nic.in