JUDGMENT
D.D. Sinha, J.
1. The appellant/accused has challenged the judgment and order of conviction dated 16-12-1989 passed by the learned II Additional Sessions Judge, Bhandara, in Sessions Trial No. 27 of 1988, whereby the appellant is convicted for the offence punishable under Section 302 of Indian Penal Code and is sentenced to suffer rigorous imprisonment for life.
2. The facts and circumstances which have given rise to the prosecution of the accused for the offence of murder, in nut shell, are as follows :
On 5-2-1988 at about 12-15 p.m. the appellant had a quarrel with deceased Manik Shripat Ilame on account of some money transaction. Mahadeo Doma Selokar (P.W. 1) had a tea-stall near the spot of incident. The appellant/accused took out a knife, which was kept by him under his pant near his waist, and assaulted the deceased Manik by inflicting blows with the said weapon. The accused thereafter went away from the spot with the knife in his hand which had blood stains.
3. Mahadeo (P.W. 1), who had a tea-stall near the spot of incident, is alleged to have seen the incident and informed Bhaskar Gajbhiye (P.W. 6), Assistant Station Master, about the incident. Bhaskar (P.W. 6) then informed the police on telephone about the incident disclosed to him by Mahadeo (P.W. I). The police rushed to the spot of incident immediately and took injured Manik to the hospital. Mahadeo (P.W. 1) gave an oral report (Ex. 34), on the basis of which Crime No. 22 of 1988 was registered against the appellant.
4. P.S.I. Barapatre (P.W. 13) recorded the inquest panchanma (Ex. 25) in presence of panch witnesses Suresh and Gulab. Post mortem examination was performed by Dr. Roy (P.W. 7) who issued the injury certificate (Ex. 50). According to the medical evidence, stab injuries and incised wounds were found on the person of the deceased and it is opined by the doctor that these injuries could be caused by the weapon Article 1 and the injuries, which were on the vital part of the body, were sufficient in the ordinary course of nature to cause death of the deceased. The doctor finally opined that the probable cause of death is shock as a result of the injury to the vital organs and excessive haemorrhage.
5. The investigating officer Barapatre (P.W. 13) in presence of panch witnesses Ashok (P.W. 2) and Mohan (P.W. 3) attached the articles which were found on the spot of incident. The investigating officer arrested the accused on 5-2-1988 at about 1-05 p.m. The clothes of the accused had also blood stains. The kinfe was attached under seizure memo (Ex. 45) in presence of Shalik (P.W. 4) and Subhash (P,W. 5). The investigating officer also attached the clothes of the deceased from the hospital vide Ex. 29. The investigating officer interrogated the accused in presence of panch witnesses Ashok (P.W. 2) and Mohan (P.W. 3) and, according to the prosecution, the accused had given an information to the police that he had kept the khaki manila, which he had worn at the time of incident, in his house and that he would produce the same. The said information was reduced into writing by the investigating officer, which is at Ex. 49. It is alleged by the prosecution that pursuant to the said information, the appellant took the police and the panch witnesses to his house and under seizure memo (Ex. 40) produced his manila in presence of panch witnesses Ashok (P.W. 2) and Mohan (P.W. 3). The cycle found on the spot of incident was also seized under memorandum (Ex. 59). The Special Judicial Magistrate Prabhakar Shesh (P.W. 14) had recorded the statement of the alleged eye witness Mahadeo (P.W. 1) under Section 164 of Criminal Procedure Code. The property was sent to chemical analyser under forwarding memo (Ex. 67). The report of chemical analyser is at Ex. 84. The investigating officer after completing the formal investigation submitted the charge-sheet. A charge was framed against the accused under Section 302 of Indian Penal Code. The accused pleaded not guilty to the charge and claimed to be tried.
6. The prosecution in order to prove the charge against the accused examined as many as fourteen witnesses. The defence of the appellant was that of denial.
7. Mr. Qazi, learned counsel for the appellant, contended that in the instant case the only eye witness Mahadeo (P.W. 1) has not supported the prosecution and, therefore, permission was sought by the prosecution to declare this witness hostile and to cross examine the witness. It is contended that the testimony of the hostile witness is of no consequence and the testimony of such hostile witness cannot be admitted in evidence and also cannot be relied on. It is further contended that in the cross-examination of this witness the prosecution failed to bring on record any material which would lend authenticity to the version given by this witness in his police statement. The learned counsel, therefore, contended that the evidence of this witness being a hostile witness, needs to be rejected.
8. Mr. Qazi, learned counsel for the appellant, further contended that Ashok (P.W. 2) and Mohan (P.W. 3) are panch witnesses on spot panchanama (Ex. 37), seizure of handkerchief and cycle (Ex. 38), memorandum recorded under Section 27 of Evidence Act (Ex. 39) as well as seizure of shirt of the accused (Ex.40). It is contended that out of these panch witnesses, Ashok (P.W. 2) has been declared hostile and, therefore, his testimony cannot be relied on. As far as Mohan (P.W. 3) is concerned, it is contended that he has admitted in the cross-examination that he went to the house of the accused along with police and he had to wait in the court-yard of the house. P.S.I. Barapatre (P.W. 13) entered into the house of the accused and he himself brought the manila (shirt) from the house of the accused. It is, therefore, contended that the discovery as required under Section 27 of Evidence Act has not been proved by the prosecution. It is further contended that Mohan (P.W. 3) has further admitted in the cross-examination that he was not aware from which portion of the building of the appellant the investigating officer entered the house and from where he brought the manila. He has stated in the cross-examination that Ex. 40 was written by the Investigating Officer on the next day and his signature was obtained on it. The learned counsel, therefore, contended that the evidence of panch witness Mohan (P.W. 3) is also doubtful in respect of memorandum (Ex. 39) as well as seizure of manila (Ex. 40).
9. Mr. Qazi, learned counsel for the appellant, further contended that Shalik (P.W. 4) and Subhash (P.W. 5) are the panch witnesses examined by the prosecution to prove the arrest panchanama (Ex. 44) and seizure of knife (Ex. 45). Both these witnesses have not supported the prosecution case and, therefore, their evidence is of no help to the prosecution.
10. It is further contended that Bhaskar (P.W. 6) has been examined by the prosecution to prove the fact that he had informed the police on telephone the incident in question on the basis of the disclosure made to him by Mahadeo (P.W. 1). It is submitted that this witness has also turned hostile and did not support the prosecution case.
11. The learned counsel for the appellant further contended that Dr. Roy (P.W. 7), who has conducted the post mortem examination on deceased Manik, though found that there were stab as well as incised wounds on the person of the deceased and had also opined that such injuries could be caused by weapon like Article 1, still the medical evidence by itself is not sufficient to award conviction to the appellant under Section 302 of Indian Penal Code.
12. The learned counsel for the appellant further contended that Subhash (P.W. 8) is the panch witness in whose presence the police has seized the register from the owner of the cycle shop (Ex. 59). Though this witness has not turned hostile, the seizure memo does not corroborate the material particulars of the prosecution case and, therefore, his evidence is of no consequence. It is contended that similar is the case with Shriram (P.W. 9), who is the owner of cycle shop. Mr. Qazi, learned counsel, vehemently argued that the remaining witnesses, i.e. Bhaurao Koche (P.W. 10), Ashwinkumar (P.W. 11), Sukhdeo Tayade (P.W. 12) and Barapatre (P.W. 13) are the police officers, out of whom Tayade (P.W. 12), police sub inspector, has reduced the oral report in writing and Barapatre (P.W. 13) is the Investigating Officer, who has conducted the investigation in the present case. Police constable Bhaurao Koche (P.W. 10) had arrested the accused and Ashwinkumar (P.W. 11) had carried the articles to the chemical analyser. It is submitted that no conviction can be awarded merely on the testimony of the police personnels when the other material witnesses are already turned hostile and did not support the prosecution case. It is contended that the findings of conviction recorded are not sustainable in law and deserves to be quashed and set aside.
13. The learned Additional Public Prosecutor, on the other hand, supported the conviction awarded by the trial Court to the appellant/accused for the offence punishable under Section 302 of Indian Penal Code. It is contended that in view of the judgment of the Apex Court in Bhagwan Singh v. The State of Harayana , the Apex Court has held thus :
‘We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross-examine the witness under Section 154 of the Evidence Act. But the fact that the Court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon his testimony if corroborated by other reliable evidence.’
The learned Addl. Public Prosecutor, therefore, contended that merely because the prosecution witnesses are turned hostile, it is not necessary to brush aside the testimony of the prosecution witnesses and there is no legal impediment in accepting the testimony of such witnesses if there is corroboration forthcoming from other attending circumstances. It is contended that the trial Court after taking into consideration this aspect of the matter rightly convicted the accused for the offence charged.
14. Similarly, the learned Addl. Public Prosecutor placed reliance on the ratio laid down by the Division Bench of this Court in the case of Usmangani Jikri Mohammad Shaikh and Anr. v. State of Maharashtra reported in 2001 All MR (Cri) 1427 wherein the Division Bench of this Court observed thus :
‘We are not inclined to adopt the approach of the trial Court and we do not wish to rely implicitly on the testimony of P.W. 2 Sunil. It cannot be lost sight of that this witness turned hostile as he did not support the version given out by him in the course of the investigation. In the course of investigation he claimed to be an eye witness but in the course of deposition before the Court he denied having seen the actual occurrence and claimed that he came to the place of occurrence after Indrajeet Singh had been assaulted and was lying on the ground. This itself makes his evidence suspect and he cannot be said to be a witness fully trustworthy. No doubt, the evidence of a hostile witness is admissible in evidence but the value to be attached to such evidence depends on the facts and circumstances of each case.’
The Addl. Public Prosecutor, therefore, contended that the evidence of the hostile witness is admissible in evidence and it cannot be brushed aside on the ground that the witness is declared hostile.
15. The learned Addl. Public Prosecutor contended that the trial Court was, therefore, justified in relying on the testimony of the hostile witness, particularly when the same is corroborated by the other circumstances on record. It is contended that though Mahadeo (P.W. 1) is the only eye witness examined by the prosecution and is declared hostile, however the material elucidated in the cross-examination of this witness is admissible and can be relied, if the same is also corroborated by the other evidence. The further corroboration is forthcoming from the medical evidence as well as the evidence of the Investigating Officer. It is, therefore, contended that the finding of conviction recorded by the trial Court is sustainable in law.
16. We have given our anxious thoughts to the various contentions raised by the respective counsel of the parties and considered the evidence adduced by the prosecution. In the instant case, it is no doubt true that the prosecution has examined as many as fourteen witnesses to unfold and prove the prosecution case for the offence punishable under Section 302 of Indian Penal Code against the appellant. It is not in dispute that out of these fourteen witnesses, Mahadeo (P.W. 1) – the alleged eye witness to the incident, Ashok (P.W. 2), Shalik (P.W. 4) and Subhash (P.W. 5), the panch witnesses examined by the prosecution to prove the Panchanamas Exs. 37, 38, 39, 40, 44 and 45 respectively, did not support the prosecution case and were declared hostile to the prosecution and permission to cross-examine them was granted by the trial Court. Similarly, Bhaskar (P.W. 6), who is examined by the prosecution to show that he had given telephonic message to the police station regarding the crime in question, has also turned hostile and did not support the prosecution. In the instant case, these are the only material prosecution witnesses examined to unfold and prove the prosecution case against the appellant for the offence charged and all these witnesses have not supported the prosecution and suppressed the truth from the Court and, therefore, it will be appropriate at this stage to consider evidentiary value of the evidence of hostile witness.
17. It must be borne in mind that the Court should always be slow in acting on the evidence of hostile witness and, as a rule of prudence, it should require corroboration by other reliable evidence. The evidence of hostile witness may not be rejected outright because such witness makes different statements at different times. Some witnesses may choose not to support the prosecution before the Court and turn hostile. However, that by itself would not prevent the Court from finding any accused guilty of the charge, if there is otherwise acceptable evidence in support of the prosecution. When a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no reason to reject his testimony in toto. The Court is not precluded from taking into account the statement of a hostile witness. In fact, it is not necessary to discard the same in toto and can be relied on partly, provided the statement of such hostile witness elucidated in the cross-examination by the Public Prosecutor inspires confidence. Hostile witness is not necessarily a false witness. Granting of permission by the Court to the Public Prosecutor to cross-examine his own witness does not amount to an adjudication by the Court as to the veracity of a witness. It only means a declaration that the witness is adverse to the party calling him and not that the witness is wholly untruthful. Mere fact that the cross-examination of a witness by the party calling him does not make him unreliable so as to exclude the evidence from the consideration altogether. Similarly, merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the Court must see the relevant effect of his testimony. Merely because the prosecution obtains permission to cross-examine a witness by treating him as hostile, it would not efface the value of the evidence of the hostile witness. If such evidence is corroborated by other evidence, there is no legal bar to convict the accused. It must also be borne in mind that the testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable evidence. On the backdrop of this legal position, there is absolutely no quarrel with the proposition laid down by the Apex Court as well as the Division Bench of this Court in the above referred cases, cited supra by the learned Addl. Public Prosecutor. However, what is pertinent is to see whether the evidence of such hostile witness is corroborated by the other evidence adduced by the prosecution in order to unfold the prosecution case.
18. In the instant case, Mahadeo (P.W. 1) is examined by the prosecution as an eye witness to the incident in question. This witness lodged the oral report (Ex. 34) dated 5-2-1988 in respect of the incident in question in the police station. In the said report, this witness has stated that on 5-2-1988 he opened his tea-stall at about 7-00 a.m. as usual. At about 12-15 p.m. the appellant came near his shop and he was holding a bicycle. Similarly the deceased Manik was also with him. Both were talking to each other and were coming towards his tea-stall. The appellant and the accused came in front of his shop and started speaking loudly about some money transaction. The deceased was asking the appellant to give him some money, however the appellant told him that he would give him the money in the evening. There were exchange of hot words between them and they started abusing each other which has resulted in scuffle. All of a sudden the appellant took out the knife which was kept by him near the waist under his pant, and by the said knife inflicted blows on the chest and abdomen of deceased Manik. As a result of the said assault, deceased Manik fell down on the ground and started crying loudly. The appellant thereafter went away from the spot along with the knife. Mahadeo (P.W. 1) further stated in his oral report that he immediately went to Bhaskar Gajbhiye (P.W. 6), the Assistant Station Master, and narrated the said incident to him.
19. Mahadeo (P.W. 1) in the examination-in-chief gave altogether a different story and deviated from the version given by him in his oral report (Ex. 34). In the examination-in-chief this witness has stated that on 5-2-1988 at about 12-00 noon he came back from the Bazar to his shop, at that time he saw deceased Manik lying on the ground at a distance of about 4 to 5 Quebecois from his tea-stall. When he saw the deceased Manik, there was blood all over and had injuries on his back. He became frightened, went to the railway station and informed Bhaskar (P.W. 6), Assistant Station Master, that deceased Manik was lying dead on the spot. Since this witness gave totally different version before the Court and was suppressing the truth from the Court, the prosecution sought permission to declare this witness hostile and also sought permission to cross-examine this witness. In the cross-examination this witness has categorically denied the fact that the Investigating Officer Barapatre (P.W. 13) had record any statement of this witness. He has also categorically denied the fact that at about 12-30 p.m. the appellant dealt a blow with the knife on the person of deceased Manik and further stated that he did not see the accused leaving the spot with the knife in his hand. He has also categorically denied the fact that the appellant dealt five to eight blows with the knife on the person of the deceased and that he disclosed this information to the Assistant Station Master. He was shown the portion marked ‘A’ of his statement recorded by the police which was read over to him. However this witness was unable to say as to why it is recorded by the police in his statement. He has categorically stated that he had not stated the portion marked ‘A’ before the Special Judicial Magistrate also in his statement recorded under Section 164 of Criminal Procedure Code. In the instant case, in our considered view, the prosecution failed to elucidate from this witness in the cross-examination the material operculars which would render the evidence of this witness acceptable and truthful, and therefore, it will be difficult to place reliance on the evidence of this witness.
20. In the instant case, the other major impediment in relying on the testimony of hostile witness Mahadeo (P.W. 1) is that there is no other evidence of a reliable prosecution witness adduced by the prosecution to corroborate the same. As we have already observed hereinabove that the Court should always be slow in acting on the evidence of a hostile witness, however there is no bar in relying on the evidence of the hostile witness when his testimony is corroborated by other prosecution evidence. In the instant case, in our view, these material factors are absent. There is no other evidence of a reliable witness on record to corroborate the testimony of Mahadeo (P.W. 1) and, therefore, it will be totally unsafe to place reliance on the testimony of hostile witness Mahadeo (P.W. 1).
21. In the instant case, we cannot turn the Nelson’s eye to the fact that Mahadeo (P.W. 1) was the only eye witness to the incident in question and his evidence was direct in nature. However, for the reasons stated hereinabove, his evidence cannot be relied on. Therefore, we are, more or less, left with the evidence of panch witnesses who have been examined by the prosecution to prove the requisite formal panchanamas and seizures made by the prosecution during the course of investigation. Out of these panch witnesses, Ashok (P.W. 2), Shalik (P.W. 4) and Subhash (P.W. 5) have not supported the prosecution and they were declared hostile. In the cross-examination of these witnesses, nothing worthwhile is brought out by the prosecution. Even otherwise the evidence of these witnesses on its own, particularly after rejecting the testimony of eye witness Mahadeo (P.W. 1), in our considered view, shall be wholly inadequate to bring home the guilt of the accused.
22. The evidence of Mohan (P.W. 3), who is a panch witness examined by the prosecution to prove memorandum under Section 27 of Evidence Act (Ex. 39) and seizure of manila (Ex. 40) suffers from material discrepancy and, in our view, needs to be rejected.
23. The evidence of Bhaskar (P.W. 6), who at the relevant time was Assistant Station Master, also suffers from the same vice. This witness did not support the prosecution and, therefore, was required to be declared hostile to the prosecution. The versions brought by the prosecution in the cross-examination of this witness does not further the case of the prosecution.
24. Waghmare (P.W. 8) is examined by the prosecution to prove the seizure of the register and Shriram (P.W. 9) is the owner of the cycle shop from whose shop, it is alleged, the appellant had hired the bicycle. The evidence of these two witnesses on its own, in our view, also does not further the case of the prosecution and is of no consequence.
25. Ashwinkumar (P.W. 5) is the Police Officer who had carried the articles to the chemical analyser. Since we have already rejected the evidence of Ashok (P.W. 2) and Mohan (P.W. 3) in respect of seizure of manila having blood stains thereon, the report of chemical analyser, in our view, is of no help to the prosecution.
26. The evidence of Investigating Officer by itself cannot form a ground for conviction. The evidence of the Investigating Officer can always be used as a corroborative piece of evidence. Similarly, the evidence of Tayade (P.W. 12), police sub inspector, who has reduced the first information report in writing is also of no consequence. Prabhakar Shesh (P.W. 14) is the Special Judicial Magistrate, who recorded the statement of Mahadeo (P.W. 1) under Section 164 of Criminal Procedure Code. It is well settled that the statement recorded under Section 164 of Criminal Procedure Code is not a substantive piece of evidence and can be used to corroborate or contradict its maker. In the instant case, the testimony of Mahadeo (P.W. 1), who is the author of his statement under Section 164 of Criminal Procedure Code, itself is unacceptable to the Court for the reasons stated hereinabove. Hence, it is difficult for us to see how the statement under Section 164 of Criminal Procedure Code can be treated as a corroborative piece of evidence in the facts and circumstances of the present case.
27. It is no doubt true that Dr. Roy (P.W. 7) conducted the post-mortem examination on the deceased and noticed incised as well as stab wounds on the vital part of the body of the deceased and also opined that injuries No. 2, 3, 4 and 5 out of Col. No. 17 and those of No. (a) and (b) of Col. No. 20 and the injuries to left lung and out of Col. No. 21 the injuries to the stomach, small intestine and abdominal avorta were sufficient in the ordinary course of nature to cause death of deceased Manik. His evidence is a corroborative piece of evidence and is incapable of establishing the identity of the author of the crime on its own. In the instant case, if the evidence of Mahadeo (P.W. 1) would have been accepted, in that event it would have been possible to hold that the testimony of Mahadeo (P.W. 1) stands corroborated by the evidence of Dr. Roy (P.W. 7). However, since the testimony of hostile witness Mahadeo (P.W. 1) cannot be relied on for the reasons stated hereinabove, the medical evidence on its own, in our considered view, cannot prove the prosecution case against the appellant for the offence punishable under Section 302 of Indian Penal Code.
28. For the reasons stated hereinabove, the findings of conviction recorded by the trial Court for the offence punishable under Section 302 of Indian Penal Code against the appellant/accused are unsustainable in law. Hence, the impugned judgment and order dated 16-12-1989 passed by the learned II Additional Sessions Judge, Bhandara, in Sessions Trial No. 27 of 1988 is hereby quashed and set aside and the Appeal is allowed. The appellant/accused be released forthwith, if not required in any other case.