Preetam Singh vs State Of U.P
2023 Latest Caselaw 10195 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 79
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14402 of 2023
 

 
Applicant :- Preetam Singh
 
Opposite Party :- State Of U.P
 
Counsel for Applicant :- Raj Kumar Singh,Sunil Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Krishan Pahal,J.

1. List has been revised.

2. Supplementary affidavit filed today is taken on record.

3. Heard Sri Sunil Kumar Singh, learned counsel for applicant and Sri Vibhav Anand Singh, learned A.G.A. for the State.

4. The present bail application has been filed by the applicant in Case Crime No.101 of 2022, under Section 302 IPC, Police Station Dubhar, District Ballia with the prayer to enlarge him on bail.

PROSECUTION STORY:

5. As per prosecution story, the applicant, who happens to be the nephew of the deceased person, is stated to have assaulted his uncle by a knife thereby causing his death at the spot on 03.07.2022 at about 4:00 PM over a family dispute.

RIVAL CONTENTIONS:

6. Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case. Learned counsel has further stated that all the witnesses of fact have been examined and they have not supported the prosecution story. There is no likelihood of conviction of the applicant in the present case. The other witnesses are simply formal witnesses only. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 04.07.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.

7. Per contra, learned A.G.A. has vehemently opposed the bail application on the ground that the examination-in-chief of the informant, as PW-1, was taken up on 14.11.2021 and he has categorically deposed against the applicant and nominated him to be the assailant of having caused the death of his brother and some cross-examination was even taken up the same day. Subsequent to it, further cross-examination of PW-1 was taken up on 14.12.2021 i.e. about a month after the said examination-in-chief and the first informant has resiled from his earlier statement and has been declared hostile by the public prosecutor.

CONCLUSION:-

8. The evidence of a hostile witness cannot be discarded in toto, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. The Apex Court in Rajesh Yadav and another Etc. v. State of U. P.,1 has dealt with the evidentiary value of the Hostile witnesses. The relevant paragraphs are being reproduced as follows:

22. On the law laid down in dealing with the testimony of a witness over an issue, we would like to place reliance on the decision of this Court in C. Muniappan v. State of T.N., (2010) 9 SCC 567: (AIR 2010 SC 3718):

"81. It is settled legal proposition that:

"6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."(Vide Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389 : (AIR 1976 SC 202) , Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233 : (AIR 1977 SC 170) , Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 : (AIR 1979 SC 1848) and Khujji v. State of M.P., (1991) 3 SCC 627 : (AIR 1991 SC 1853 ) , SCC p. 635, para 6.)

82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360 : (AIR 1996 SC 2766): 1996 SCC (Cri) 1278] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra [(2002) 7 SCC 543: 2003 SCC (Cri) 112] : (AIR 2002 SC 3137) , Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516: (2008) 1 SCC (Cri) 109] : (AIROnline 2006 SC 574) , Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450: (2006) 1 SCC (Cri) 661 : (AIR 2006 SC 951)], Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188] : (AIR 2008 SC 320) and Subbu Singh v. State [(2009) 6 SCC 462: (2009) 2 SCC (Cri) 1106] : (2009 AIR SCW 3937).

83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.

84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.

85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. "Vide Sohrab v. State of M.P., [(1972] 3 SCC 751 : (1972) SCC (Cri) 819 : AIR 1972 SC 2020], State of U.P. v. M.K. Anthony, [(1985) 1 SCC 505 : 1985 SCC (Cri) 105] : (AIR 1985 SC 48) , Bharwada Bhoginbhai Hirjibhai v. Sate of Gujrat, [(1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753], State of Rajasthan v. Om Prakash, [(2007) 12 SCC 381 : (2008) 1 SCC (Cri) 411] : (AIR 2007 SC 2257) , Prithu v. State of H.P., [(2009) 11 SCC 585 : (2009) 3 SCC (Cri) 1502] : (AIR 2009 SC 2070 ) , State of U.P. v. Santosh Kumar, [(2009) 9 SCC 626 : (2010) 1 SCC (Cri) 88] : (2009 AIR SCW 6177) and State v. Saravanan, [(2008) 17 SCC 587 : (AIR 2009 SC 152) : (2010) 4 SCC (Cri) 580].

23. This Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (AIR 2015 SC 1206) had already dealt with a situation where a witness after rendering testimony in line with the prosecution's version, completely abandoned it, in view of the long adjournments given permitting an act of manoeuvring. While taking note of such situations occurring with regularity, it expressed its anguish and observed that:

"51. It is necessary, though painful, to note that PW 7 was examined-in- chief on 30-9-1999 and was cross-examined on 25-5-2001, almost after 1 year and 8 months. The delay in said cross-examination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross-examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross- examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined.

52. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the Public Prosecutor, PW 7 has accepted about the correctness of his statement in the court on 13-9-1999. He has also accepted that he had not made any complaint to the Presiding Officer of the court in writing or verbally that the Inspector was threatening him to make a false statement in the court. It has also been accepted by him that he had given the statement in the court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13-9-1999 after going through and admitting it to be correct. It has come in the re-examination that PW 7 had not stated in his statement dated 13-9- 1999 in the court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused. He had also not stated in his said statement that the accused and witnesses were taken to the Tehsil and it was there that he had signed all the memos.

53. Reading the evidence in entirety, PW 7's evidence cannot be brushed aside. The delay in cross-examination has resulted in his prevarication from the examination-in-chief. But, a significant one, his examination- in-chief and the re-examination impels us to accept the testimony that he had gone into the octroi post and had witnessed about the demand and acceptance of money by the accused. In his cross-examination he has stated that he had not gone with Baj Singh to the Vigilance Department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of entire evidence in examination-in-chief and the re-examination.

57. Before parting with the case we are constrained to reiterate what we have said in the beginning. We have expressed our agony and anguish for the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts:

57.1. Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of.

57.2. As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to pressurise the witness and to gain over him by adopting all kinds of tactics.

57.3. There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial is to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of the rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons.

57.4. In fact, it is not at all appreciable to call a witness for cross- examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial.

57.5. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute." Section 33 of the Indian Evidence Act:

"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.-Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."

24. Section 33 is an exception to the general rule which mandates adequate facility for cross examining a witness. However, in a case where a witness after the completion of the chief examination and while subjecting him to a substantial and rigorous cross examination, did not choose to get into the witness box on purpose, it is for the court to utilize the said evidence appropriately. The issues over which the evidence is completed could be treated as such by the court and then proceed. Resultantly, the issues for which the cross examination is not over would make the entire examination as inadmissible. Ultimately, it is for the court to decide the aforesaid aspect.

9. After hearing learned counsel for the parties and taking into consideration the fact that PW-1 has categorically nominated the applicant to be the assailant, I do not find it a fit case for grant of bail to the applicant.

10. The bail application is found devoid of merits and is, accordingly, rejected.

11. However, it is directed that the aforesaid case pending before the trial court be decided as early as possible in view of the principle as has been laid down in the recent judgments of the Apex Court in the cases of Vinod Kumar vs. State of Punjab2, and Hussain and Another vs. Union of India3, if there is no legal impediment.

12. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

(Krishan Pahal, J.)

Order Date :- 07.04.2023

Ravi Kant