PUNJAB & HARYANA AT CHANDIGARH
CRA-D-564-DB-2014
Reserved on : 17.05.2019
Date of decision : 28.05.2019
Abhijeet Singh alias Ankur Likhari ... Appellant
Versus
State of Punjab ... Respondent
CORAM: HON'BLE MR. JUSTICE RAJIV SHARMA
HON'BLE MR.JUSTICE HARINDER SINGH SIDHU
Present: Mr.Anmol Rattan Sidhu, Senior Advocate with
Mr.Pratham Sethi, Advocate
for the appellant.
Mr.S.P.S. Tinna, Addl.A.G. Punjab with
Mr.Harbir Sandhu, AAG, Punjab.
JUDGMENT
RAJIV SHARMA, J.
1. This appeal is instituted against judgment dated 20.02.2014 and order dated 22.02.2014 rendered by the Additional Sessions Judge, Amritsar, in Sessions Case No.0484 (22994/2013 new) of 24.03.2011 whereby the appellant along with his co-accused Sanjeev Kumar alias Babba, who were charged with and tried for offence punishable under Sections 302 of the Indian Penal Code (in short 'IPC') have been convicted thereunder and have been sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- each. Sanjeev Kumar alias Babba had filed separate appeal bearing No.CRA-D-660-DB-2014. However, he died during pendency of the appeal and his appeal stood dismissed as abated on 17.05.2019.
2. The case of the prosecution in a nutshell is that on 15.01.2010 Balwinder Kumar (PW-1) had filed complaint to the effect that he wasworking with Fultron Bank located at Kachehri Chowk, Amritsar. He waspresent in the Court Complex, Amritsar on that day in connection with some personal work. When he was present in front of main gate (cantonment side) of Court Complex, his friend Jatinder alias Raju Chikna son of Jagtar Singh and another friend Sukhwinder Singh alias Boby Pehalwan son of Mohinder Singh reached there. Both Jatinder alias Raju Chikna and Sukhwinder Singh alias Boby happened to be present in the Court in order to attend some court hearing. It was around 2.00 P.M. While they were talking to each other, a grey coloured Scropio car arrived at the scene. It came from the side of Civil Lines Chowk. Abhijeet Singh alias Ankur Likhari, Sanjeev Kumar alias Babba and one Sabhi Shivala son of Jagga alias Gursharan Singh alias Tejwinder Singh alias Teja Pardhan along with 3-4 unidentified young men were present in jeep. All of them came down from the jeep. They were armed with pistols. Sanjeev Kumar alias Baba and Abhijeet Singh alias Ankur Likhari as soon as they got down from the jeep, started hurling abuses on Jatinder alias Raju Chikna. They opened fire. Bullet hit on the head of Jatinder alias Raju Chikna. He fell down on the spot. He was removed to hospital. Police visited the spot. Blood stained earth was shifted from the spot. Police recovered 6 empty rounds of .32 bore pistol, 4 empty round of 9 mm pistol, 4 empty rounds of 7.6 mm pistol. It transpired that HC Jagjit Singh had also received injuries. His statement was recorded. Injured Jatinder alias Raj Chikna died on 17.01.2010. Recovered articles from the scene were sent for forensic examination. Investigation was completed. The challan was put up after completing all the codal formalities.
3. The prosecution examined a number of witnesses. Statements of accused were recorded under Section 313 Cr.P.C. They denied the case of prosecution. The appellant along with his co-accused Sanjeev Kumar alias Babba was convicted and sentenced, as noticed hereinabove.
4. Learned counsel appearing on behalf of the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant.
5. Learned counsel appearing on behalf of the State has supported the prosecution case.
6. We have heard learned counsel for the parties and have gone through the judgment and record very carefully.
7. PW-19 Dr.Raj Kamal had examined injured Ramesh Kumar.
8. PW-20 Dr.Kuldeep Kumar deposed that the post-mortem examination of deceased Jatinder alias Raju Chikna was conducted on 18.01.2010 by Dr. Kirpal Singh Azad. Dr.Kirpal Singh Azad was suffering from cancer and was under treatment. He brought the original post-mortem report. The cause of death in this case was due to laceration and compression of brain due to extra dural hematoma, sub-dural hematoma and sub-arachnoid hematoma which were sufficient to cause death in ordinary course of nature.
9. PW-22 Dr.Avtar Singh, Orthopadeic Surgeon had examined injured Jagjit Singh. He gave his opinion vide Ex.PW22/2.
10. PW-23 Dr.Raj Kamal, Neurosurgeon had examined Jatinder Singh.
11. PW-1 Lakhwinder Kumar testified that he had come to the Court Complex. He was talking with Raju Chikna and Sukhwinder Singh. In the meantime, a Scorpio of grey colour came on the spot. Ankur Likhari alias Abhijeet singh and Sanjeev Kumar alias Babba came down from thejeep along with Sabhi alias Shivala and Tajwinder Singh alias Tajja. They started abusing Raju Chikna. All of them started firing on Raju alias Chikna. One of bullets hit on the head of Raju Chikna. It was shot by
accused Babba. Raju Chikna collapsed. He was taken to hospital. His examination-in-chief was recorded on 10.10.2011. He was cross-examined on 20.04.2012 In his cross-examination, he deposed that he had seen the accused in Court namely Abhijeet Singh and Sanjeev Nayyar. They were
not the same persons who had fired at deceased Raju Chikna. He did not know accused Sanjeev Nayyar and Ankur Likhari. He also did not know Sabhi and Taj. His statement dated 10.10.2011 was under the influence of police. His signature was obtained by the police on blank papers. He was
declared hostile and was re-examined by the Public Prosecutor. He reiterated that statement made on 10.10.2011 made in the Court was not correct statement.
12. PW-2 Sukhwinder Singh alias Bobby deposed that on 15.01.2010 he had come to Court Complex, Amritsar. Jatinder alias Raju Chikna met him. When his case was adjourned, he left for his residence. He did not visit any place. He did not visit kulcha rehri along with Balwinder Kumar. No occurrence had taken place in his presence. He was declared hostile. He was cross-examined by the Public Prosecutor. He denied recording of statement on 15.01.2010.
13. PW-5 SI Lakha Singh deposed that he was posted in Police Station Civil Lines, Amritsar on 15.01.2010. He along with police party headed by Davinder Singh SHO was present at Novelty Chowk, Amritsar. Davinder Singh SHO received telephonic message regarding incident in
District Courts near the gate of Cantonment side. They reached the spot. They came to know that injured Jatinder Singh alias Raju Chikna was taken to Fortis hosptial. He lifted the blood stained earth with the help of cotton. 6 empty rounds of .32 bore, 4 empty rounds of 9 mm and 4 empty rounds of
7.65 were made into parcels. These were taken into possession. He moved an application seeking opinion of doctor whether HC Jagjit Singh was fit to make statement. He recorded statement of HC Jagjit Singh injured. He also moved an application for declaring injured Jatinder alias Raju Chikna fit to make statement. Doctor declared Jatinder unfit to make statement. Accused Abhijeet Singh was arrested along with Sanjeev Kumar. Abhijeet Singh made disclosure statement that he had kept concealed one pistol along with live rounds near the hospital of Dr. Rachhpal Singh Gumtala Bypass in Kaliwali Bhathi. The disclosure statement is Ex.P16. Accused Sanjeev Kumar alias Babba also made disclosure statement Ex.P17 that he had kept concealed one revolver in the area of two hundred meters ahead of S.G. Enclave, Majitha Road. In his cross-examination, he deposed that no dying
declaration statement of deceased was recorded. Jatinder alias Raju Chikna died after third day of occurrence. He further deposed that empty rounds of .32 bore were lying at distnace of 5/10 kadams from road. The empty cartridges of 9 mm and 7.65 mm were lying at distance of 10 kadams from
the road.
14. PW-6 Inspector Harish Behl deposed that accused were arrested. They made disclosure statements. Sanjeev Kumar alias Babba got recovered one polythene after digging the earth and said polythene contained 10 live rounds of .32 bore and one revolver of .32 bore bearing No.B3902SAF, Kanpur. Rough sketch of revolver was prepared.
15. PW-8 DSP Sukhwinder Singh is the material witness. He testified that on 15.01.2010 he along with ASI Hari Singh and other police officials brought one accused Aman Rasood in FIR No.8 dated 14.01.2010. After producing the accused in Court, when he reached outside the gate of Court Complex towards Cantonment side, he saw one Scorpio bearing registration No.PB10AK-4517. It was driven by accused Abhijeet Singh alias Ankur Likhari and Sanjeev alias Babba was also sitting in that Scorpio. Sanjeev alias Babba occupant of this Scorpio fired from Scorpio bullet which hit in the head of Raju Chikna. They escaped towards Ajnala side. Sarabjit Singh alias Sabhi along with one Tejwinder Singh alias Taja Pardhan along with two unknown persons were also with them. He
identified both the accused in the Court. In his cross-examination, he admitted that they were also armed with fire arms. All the officials and Ashan Arshad had witnessed the occurrence. None of them was examined in this case.
16. PW-10 HC Jagjit Singh deposed that he was deputed to escort duty in Sub Jail, Patti. He brought Amandeep Singh alias Mota for producing in Court of JMIC, Amritsar. HC Sunil Kumar, HC Gurjit Singh were also accompanying him. HC Sunil Kumar was having carbine issued by the police department. When they stepped down from the bus on western side of Court Complex, Amritsar and were about to enter the Court Complex, there was heavy rush near the gate of Court Complex. When he along with his companion went towards Court Complex, there was firing. He was hit on his left leg. He fell down. He became unconscious. He did not know from which vehicle the bullets were fired and by whom. He did not identify the accused in the Court. He was declared hostile and was crossexamined by the learned Public Prosecutor. He admitted making statement Mark X. He had mentioned in his statement before the police that the firing was done from inside a Scropio which hit on his left leg. He also stated in Mark X that his companion HC Sunil Kumar had fired four shots in their defence. In further cross-examination by defence counsel, he deposed that accused present in the Court never fired.
17. Similarly PW-11 HC Gurjit Singh testified that when they stepped down from the bus and were about to enter the Court Complex, Amritsar, through gate from cantonment side at about 2.00 P.M., they heard the noise of firing. HC Jagjit Singh received fire injury on his leg. HC Sunil Kumar fired shots from his carbine. He took Amandip Singh inside the Court Complex, Amritsar. He did not know from which vehicle the assailants had fired. He was declared hostile and was cross-examined by the Public Prosecutor.
18. PW-12 HC Sunil Kumar had also not supported the case of prosecution. He could not identify the person who had fired nor those person were present in Court. He was declared hostile.
19. PW-13 SI Harsandeep Singh deposed that accused were handed over to him for effecting recovery as per Ex.P16. Accused got recovered pistol .32 bore which was wrapped in a glazed paper. On removing the same, two live rounds of same bore were recovered. Khakha of pistol Ex.PW13/A was prepared.
20. FSL report is Ex.PX. The result of examination is as under:-
“1. Firearm marked W/1, W/2 and W/3 contained respectively in parcels 'D', 'E' and 'F' under reference are in working condition.
2. 9 mm cartridge cases marked C/2 and C/3 contained in parcel 'A' had been fired from 9 mm
carbine bearing No.16123873 marked W/3 contained in parcel 'F' under reference. However, no definite opinion could be offered with respect of 9 mm cartridge cases marked C/1 and C/4 contained in parcel 'A' had been fired from firearm marked W/3 or not referred above due to lack of sufficient individual characteristic marks.
3. 7.65 mm cartridge cases marked C/5 to C/8 contained in parcel 'B' had been fired from 7.65 mm
pistol bearing no.RP-107565 contained in parcel 'E'under reference.
4. 0.32 inch cartridge cases marked C/9 to C/14 contained in parcel 'C' had been fired from 0.32 inch
I.O.F. Revolver bearing no.B-3902 contained in parcel 'D' referred above.
5. 0.32 inch K.F.S. & WL cartridges marked L/1 to L/10 contained in parcel 'D' under reference are live cartridges.
6. No definite opinion could be offered with respect to caliber of lead metal pieces contained in parcel 'G' under reference as these are badly damaged.” According to FSL report Ex.PY, human blood was detected on exhibits contained in parcel 'A', i.e. soil and cotton lifted from the road with the help of cotton.
21. The cause of death was due to laceration and compression of brain due to extra dural hematoma, sub dural hematoma and sub-arachnoid hematoma which were sufficient to cause death in the ordinary course of nature. The post-mortem report is Ex.P20/A. The injuries as per postmortem report were due to fire arm.
22. The case of the prosecution precisely is that PW-1 Balwinder Kumar was present in front of gate of Court Complex, Amritsar in the company of PW-2 Sukhwinder Singh. Jatinder alias Raju Chikna also came on the spot. They were talking to each other. In the meantime appellant Abhijeet Singh along with Sanjeev Kumar came on the spot. They started firing indiscriminately. One of the bullet hit on the head of Jatinder alias Raju Chikna. He collapsed. He was taken to hospital. Six empty rounds of 32 bore pistol, 4 empty rounds of 9 mm pistol, 4 empty rounds of 7.6 mm pistol were recovered. Accused made disclosure statements on the basis of which recoveries were effected. Jatinder alias Raju Chikna died on 17.01.2010.
23. PW-1 Balwinder Kumar in his examination-in-chief has categorically deposed the manner in which appellant shot at Jatinder @ Raju Chikna. He had taken Jatinder @ Raju Chikna to hospital. His examination-in-chief was recorded on 10.10.2011. However in the crossexamination recorded on 20.04.2012 he has not supported the case of prosecution. We are surprised that the trial Court had granted almost six months time for cross-examination of PW-1 Balwinder Singh. Inordinate long period was given for cross-examination of PW-1 Balwinder Singh enabling the accused to win over him. PW-2 Sukhwinder Singh has also not supported the case of prosecution. The fact of the matter is that PW-8 DSP Sukhwinder Singh who was present on the spot has supported the case of prosecution to the hilt. He had seen Sanjeev Kumar alias Babba firing at Jatinder @ Raju Chikna. Statement of PW-8 DSP Sukhwinder Singh is duly supported by medical evidence. PW-10 HC Jagjit Singh, PW-11 HC Gurjit Singh and PW-12 HC Sunil Kumar have not supported the case of prosecution in entirety though they were police officials. However they have admitted that firing had taken place at gate of Court Complex, Amritsar. It has also come on record that PW-10 HC Jagjit Singh was hit by bullet. He was examined by PW-22 Dr.Avtar Singh. The weapon of offence, used in the incident as per FSL report Ex.PX, was recovered from the accused. The appellant was given an opportunity to explain disclosure statement made by him vide Ex.P16. However, he has not stated anything in his examination under Section 313 Cr.P.C. qua disclosure statement made by him.
24. Their Lordships of the Supreme Court in Dharnidhar vs. State of Uttar Pradesh and others, (2010) 7 Supreme Court Cases 759 have held that Section 313 Cr.P.C. is to provide opportunity to accused to explain circumstances appearing against him and for Court to have an opportunity to examine accused and to elicit an explanation from him, which may be free from fear of being trapped by an embarrassing admission or statement.Their Lordships have also held in the same judgment that it is not mandatory for the prosecution to bring direct evidence of common intention on record and this depends on facts and circumstances of the case. It is not necessary for prosecution to establish, as a matter of fact, that there was premeeting of minds and planning before crime was committed. Their
Lordships have held as under:-
“32. Following the law laid down in Narain Singh case, (1964)1 CriLJ 730 the Apex Court in State of
Maharashtra v. Sukhdev Singh (1992 CriLJ 3454) further dealt with the question whether a statement
recorded under Section 313 of the Cr.P.C. can constitute the sole basis for conviction and recorded a finding that the answers given by the accused in response to his examination under Section 313 of the Cr.P.C. of 1973can be taken into consideration in such an inquiry ortrial though such a statement strictly is not evidence and observed in paragraph 52 thus: ( Sukhdev Singh case SCC p. 744 )
“52. Even on the first principle we see no reason why the Court could not act on the admission or
confession made by the accused in the course of the trial or in his statement recorded under
Section 313 of the Cr.P.C.” It is thus well established in law that admission or confession of accused in the statement under Section 313 of the Cr.P.C. recorded in the course of trial can beacted upon and the Court can rely on these confessions to proceed to convict him.xxx xxx xxx
38. Let us examine the judgments of this Court in relation to common intention and commission of crime by the members of an unlawful assembly. It is a settled principle of law that to show common intention to commit a crime it is not necessary for the prosecution to establish, as a matter of fact, that there was a premeetingof the minds and planning before the crime was committed.
39. In Surendra Chauhan vs. State of Madhya Pradesh [AIR 2000 SC 1436], this Court held that
common intention can be developed on the spur of the moment. Also, under Section 34, a person must bephysically present at the place of actual commission of the crime. The essence is the simultaneous consensus of the minds of persons participating in the criminal act and such consensus can be developed on the spot.
40. It is not mandatory for the prosecution to bring direct evidence of common intention on record and this depends on the facts and circumstances of the case. The intention could develop even during the course of occurrence. In this regard reference can be made to Ramaswamy Ayhangar vs. State of Tamil Nadu [(1976) 3 SCC 779] and Rajesh Govind Jagesh vs. State of Maharashtra [(1999) 8 SCC 428].
41. In other words, to apply Section 34, two or more accused should be present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 moreover, involves vicarious liability and therefore, if intention is proved but no overt act is committed, the section can still be invoked. In the present case all the 4 accused had gone together armed with three guns and one sphere and after shouting, making their minds clear, had fired at Bahadur Singh causing gun injuries and sphere injury on his shoulder.”
25. Their Lordships of the Supreme Court in Ramnaresh and others vs. State of Chhattisgarh, AIR 2012 Supreme Court 1357 have held that object of examination of accused under Section 313 Cr.P.C. is to give opportunity to accused to explain circumstances appearing against him as well as put forward his defence. Their Lordships have held as under:- “22. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.”
26. Their Lordships of the Supreme Court in Munish Mubar vs. State of Haryana, AIR 2013 Supreme Court 912 have held that recovery made on disclosure by accused is not affected by the fact that panch witnesses were all police personnel. Their Lordships have held as under:-
“25. In view of the aforesaid discussion, it is evident that in spite of the fact that in case there is no
independent witness of recoveries and panch witnesses are only police personnel, it may not affect the merits of the case. In the instant case, the defence did not ask this issue in the cross-examination to Inspector Shamsher Singh (PW.21) as why the independent person was not made the panch witness. More so, it was the duty of the appellant to furnish some explanation in his statement
under Section 313. Cr.PC., as under what circumstances his car had been parked at the Delhi Airport and it remained there for 3 hours on the date of occurrence. More so, the call records of his telephone make it evident that he was present in the vicinity of the place of occurrence and under what circumstances recovery of incriminating material had been made on his voluntary disclosure statement. Merely making a bald statement that he was innocent and recoveries had been planted
and the call records were false and fabricated documents, is not enough as none of the said allegations made by the appellant could be established. In view of the above, we do not find any force in this appeal. The appeal is therefore, dismissed accordingly.”
27. According to CT scan report, multiple small pellets were seen in bilateral frontal lobes and in soft tissue of scalp in frontal region and burst fracture of frontal bone was seen on right side with fracture line extending superiorly towards left side. CT scan report is part of admission sheet of Jatinder Ex.PW23/A.
28. In the present case, the examination-in-chief of PW-1 Balwinder Kumar was recorded on 10.10.2011. According to zimni order dated 10.10.2011, cross-examination of Balwinder Kumar was deferred on request of junior counsel as Mr. Pawan Changotra, Advocate had gone to Chandigarh. He was bound down for 28.10.2011. On 28.10.2011 Balwinder Kumar was present for cross-examination but an adjournment was requested by counsel for the accused. The witness was bound down for 28.11.2011. On 28.11.2011 PW-1 Balwinder Kumar was present for cross-examination but accused were not produced by the jail authorities. The witness was bound down for 13.12.2011. Thereafter the matter was unnecessarily adjourned on flimsy grounds enabling the accused to win over PW-1
Balwinder Kumar. The trial Court should have completed cross-examiantion of PW-1 Balwinder Kumar on day-to-day basis instead of postponing it for about six months. Though PW-1 Balwinder Kumar had categorically deposed in his examination-in-chief that he had seen accused firing at the deceased, he turned hostile during his cross-examination recorded on
20.04.2012 due to considerable long time given to record his crossexamination. PW-10 HC Jagjit Singh, PW-11 HC Gurjit Singh and PW-12 HC Sunil Kumar have admitted the incident. It is settled law that entire statement of hostile witness is not effaced. The prosecution can rely on the portion which supports its case.
29. Their Lordships of the Supreme Court in Rameshbhai Mohanbhai Koli and others vs. State of Gujarat, (2011) 11 Supreme Court Cases 11, have held that the evidence of prosecution witness cannot be rejected in toto merely because prosecution chose to treat him as hostile and cross-examined him. Evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version was found to be dependable on a careful scrutiny thereof. Their Lordships have held as under:
“16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine 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 that their version is found to be dependable on a careful scrutiny thereof. (vide Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 and Khujji @ Surendra
Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853). 17. In State of U.P. v. Ramesh Prasad Misra and Anr., AIR 1996 SC 2766, this Court held that 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; Gagan Kanojia and Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb and Ors. v. State of U.P., AIR 2006 SC 951; Sarvesh Naraian Shukla v. Daroga Singh and Ors., AIR 2008 SC 320 and Subbu Singh v. State, (2009) 6 SCC 462. 18) In C. Muniappan & Ors. vs. State of Tamil Nadu, JT 2010 (9) SC 95, this Court, after considering all the earlier decisions on this point, summarized the law applicable to the case of hostile witnesses as under:
"83... 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 theappellants, but we find them to be very trivial in nature.85. It is settled proposition of law that even ifthere 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 and Anr. v.
The State of M.P., AIR 1972 SC 2020; State of U.P. v. M.K. Anthony, AIR 1985 SC 48; Bharwada
Bhogini Bhai Hirji Bhai v. State of Gujarat, AIR 1983 SC 753; State of Rajasthan v. Om Prakash,
AIR 2007 SC 2257; Prithu @ Prithi Chand and Anr. v. State of Himachal Pradesh, (2009) 11 SCC
588; State of U.P. v. Santosh Kumar and Ors., (2009) 9 SCC 626 and State v. Saravanan and
Anr, AIR 2009 SC 151)”.
30. Their Lordships of the Supreme Court in Himanshu alias
Chintu vs. State (NCT of Delhi), (2011) 2 Supreme Court Cases 36 have
held that evidence of hostile witness remains admissible evidence and it is
open to Court to rely upon dependable part of that evidence, which is found
to be acceptable and duly corroborated by some other reliable evidence
available on record. Their Lordships have held as under:-
“30. In Prithi v. State of Haryana decided recently, one
of us (R.M. Lodha, J.) noticed the legal position with
regard to a hostile witness in the light of Section 154 of
the Evidence Act, 1872 and few decisions of this Court
as under :-
"25. Section 154 of the Evidence Act, 1872 enables
the court in its discretion to permit the person who
calls a witness to put any questions to him which
might be put in cross-examination by the adverse
party. Some High Courts had earlier taken the
view that when a witness is cross- examined by the
party calling him, his evidence cannot be believed
in part and disbelieved in part, but must be
excluded altogether. However this view has not
found acceptance in later decisions. As a matter of
fact, the decisions of this Court are to the
contrary. In Khujji @ Surendra Tiwari v. State of
M.P. [(1991) 3 SCC 627], a three-Judge Bench of
this Court relying upon earlier decisions of this
Court in Bhagwan Singh v. State of Haryana
[(1976) 1 SCC 389], Sri Rabindra Kumar Dey v.
State of Orissa [(1976 4 SCC 233] and Syad
Akbar v. State of Karnataka [(1980) 1 SCC 30]
reiterated the legal position that: (Khujji case,
SCC p. 635, para 6) (2010) 8 SCC 536.
"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 careful
scrutiny thereof."
26. In Koli Lakhmanbhai Chanabhai v. State of
Gujarat [(1999) 8 SCC 624], this Court again
reiterated that testimony of a hostile witness is
useful to the extent to which it supports the
prosecution case. It is worth noticing that in
Bhagwan Singh this Court held that when a
witness is declared hostile and cross-examined
with the permission of the court, his evidence
remains admissible and there is no legal bar to
have a conviction upon his testimony, if
corroborated by other reliable evidence.
27. The submission of the learned Senior
Counsel for the appellant that the testimony of PW
6 should be either accepted as it is or rejected in
its entirety, thus, cannot be accepted in view of the
settled legal position as noticed above."
31. The aforesaid legal position leaves no manner of
doubt that the evidence of a hostile witness remains the
admissible evidence and it is open to the court to rely
upon the dependable part of that evidence which is found
to be acceptable and duly corroborated by some other
reliable evidence available on record. The High Court
and the trial court, thus, cannot be said to have erred in
acting on the evidence of PW-11 which was duly
corroborated by the other reliable evidence on record.
We find no flaw in the judgment of the High Court
affirming the conviction of A-2 and A-3 under Section
302 read with Section 34 IPC.”
31. Their Lordships of the Supreme Court in Haradhan Das vs.
State of West Bengal, (2013) 2 Supreme Court Cases 197 have held that
statement of witness who has been declared hostile by the prosecution is
neither inadmissible nor is it of no value in its entirety. The statement,
particularly the examination-in-chief, insofar as it supports the case of the
prosecution is admissible and can be relied upon by the Court. Their
Lordships have held as under:-
“15. It is a settled principle of law that the statement of
a witness who has been declared hostile by the
prosecution is neither inadmissible nor is it of no value
in its entirety. The statement, particularly the
examination-in-chief, in so far as it supports the case of
the prosecution is admissible and can be relied upon by
the Court. It will be useful at this stage to refer to the
judgment of this Court in the case of Bhajju @ Karan v.
State of Madhya Pradesh [(2012) 4 SCC 327] wherein
this Court, after discussing the law in some elaboration,
declared the principle as follows: -
“33. As already noticed, none of the witnesses or
the authorities involved in the recording of the
dying declaration had turned hostile. On the
contrary, they have fully supported the case of the
prosecution and have, beyond reasonable doubt,
proved that the dying declaration is reliable,
truthful and was voluntarily made by the
deceased. We may also notice that this very
judgment, Munnu Raja (1976) 3 SCC 104 relied
upon by the accused itself clearly says that the
dying declaration can be acted upon without
corroboration and can be made the basis of
conviction.
34. Para 6 of the said judgment reads as under:
(Munnu Raja case, SCC pp. 106-07)
“6. … It is well settled that though a dying
declaration must be approached with
caution for the reason that the maker of the
statement cannot be subject to crossexamination,
there is neither a rule of law
nor a rule of prudence which has hardened
into a rule of law that a dying declaration
cannot be acted upon unless it is
corroborated (see Khushal Rao v. State of
Bombay AIR 1948 SC 22). The High Court,
it is true, has held that the evidence of the
two eyewitnesses corroborated the dying
declarations but it did not come to the
conclusion that the dying declarations
suffered from any infirmity by reason of
which it was necessary to look out for
corroboration.”
35. Now, we shall discuss the effect of hostile
witnesses as well as the worth of the defence put
forward on behalf of the appellant-accused.
Normally, when a witness deposes contrary to the
stand of the prosecution and his own statement
recorded under Section 161 CrPC, the
prosecutor, with the permission of the court, can
pray to the court for declaring that witness hostile
and for granting leave to cross-examine the said
witness. If such a permission is granted by the
court then the witness is subjected to crossexamination
by the prosecutor as well as an
opportunity is provided to the defence to crossexamine
such witnesses, if he so desires. In other
words, there is a limited examination-in-chief,
cross-examination by the prosecutor and crossexamination
by the counsel for the accused. It is
admissible to use the examination-in-chief as well
as the cross-examination of the said witness
insofar as it supports the case of the prosecution.
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 calls a witness, to put any
question to him which might be put in crossexamination
by the adverse party.
37. The view that the evidence of the witness who
has been called and cross-examined by the party
with the leave of the court, cannot be believed or
disbelieved in part and has to be excluded
altogether, is not the correct exposition of law.
The courts may rely upon so much of the testimony
which supports the case of the prosecution and is
corroborated by other evidence. It is also now a
settled canon of criminal jurisprudence that the
part which has been allowed to be cross-examined
can also be relied upon by the prosecution. 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
b. Prithi v. State of Haryana (2010) 8 SCC 536
c. Sidhartha Vashisht @ Manu Sharma v. State
(NCT of Delhi) (2010) 6 SCC 1
d. Ramkrushna v. State of Maharashtra (2007) 13
SCC 525”.”
32. The same principles have been reiterated by the Supreme Court
in Krishan Chander vs. State of Delhi, (2016) 3 Supreme Court Cases 108
as under:-
“20. He has submitted that the High Court has rightly
re-appreciated the evidence of the complainant-Jai
Bhagwan and other prosecution witnesses and
concurred with the findings recorded on the charges.
Further it was submitted by him that the trial court while
appreciating the evidence of the complainant-Jai
Bhagwan relied upon the decision of this Court in the
case of Sat Paul v. Delhi Administration[6], paragraphs
42 and 52 of which decision in recording the finding on
the charges against the appellant, are extracted
hereunder:
“42. The fallacy underlying this view stems from
the assumption that the only purpose of crossexamination
of a witness is to discredit him; it
ignores the hard truth that another equally
important object of cross- examination is to elicit
admissions of facts which would help build the
case of the cross-examiner. When a party with the
leave of the court, confronts his witness with his
previous inconsistent statement, he does so in the
hope that the witness might revert to what he had
stated previously. If the departure from the prior
statement is not deliberate but is due to faulty
memory or a like cause, there is every possibility
of the witness veering round to his former
statement. Thus, showing faultness of the memory
in the case of such a witness would be another
object of cross- examining and contradicting him
by a party calling the witness. In short, the rule
prohibiting a party to put questions in the manner
of cross- examination or in a leading form to his
own witness is relaxed not because the witness has
already forfeited all right to credit but because
from his antipathetic altitude or otherwise, the
court feels that for doing justice, his evidence will
be more fully given, the truth more effectively
extricated and his credit more adequately tested
by questions put in a more pointed, penetrating
and searching way.
xxx xxx xxx
52. From the above conspectus, it emerges clear
that even in a criminal prosecution when a witness
is cross-examined and contradicted with the leave
of the court, by the party calling him, his evidence
cannot, as a matter of law, be treated as washed
off the record altogether. It is for the Judge of fact
to consider in each case whether as a result of
such cross-examination and contradiction, the
witness stands thoroughly discredited or can still
be believed in regard to a part of his testimony. If
the Judge 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 and care,
accept, in the light of the other evidence on the
record, that part of his testimony which he finds to
be creditworthy and act upon it. If in a given case,
the whole of the testimony of the witness is
impugned, and in the process, the witness stands
squarely and totally discredited, the Judge should,
as a matter of prudence, discard his evidence in
toto.”
33. Their Lordships of the Supreme Court in Ramesh and others
vs. State of Haryana, (2017) 1 Supreme Court Cases 529 have held that
witnesses turning hostile may be described as “culture of compromise”.
Their Lordships have discussed factors and reasons for witnesses turning
hostile. Their Lordships have 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, this Court observed as under:
“31. It is matter of common experience that in
recent times there has been 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, 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.”
41. Likewise, in Zahira Habibullah v. State of
Gujarat, this Court highlighted the problem with
following observations:
“40. “Witnesses”, as Bentham said: “are the eyes
and ears of justice”. Hence, the importance and
primacy of the quality of trial process. If the
witness himself is incapacitated from acting as
eyes and ears of justice, the trial gets putrefied
and paralysed and it no longer can constitute a
fair trial. The incapacitation may be due to
several factors like the witness being not in a
position for reasons beyond control, to speak the
truth in the court or due to negligence or
ignorance or some corrupt collusion. Time has
become ripe to act on account of numerous
experiences faced by the court on account of
frequent turning of witnesses as hostile, either due
to threats, coercion, lures and monetary
considerations at the instance of those in power,
their henchmen and hirelings, political clouts and
patronage and innumerable other corrupt
practices ingeniously adopted to smother and
stifle truth and realities coming out to surface.....
Broader public and social interest require that the
victims of the crime who are not ordinarily parties
to prosecution and the interests of State
representing by their presenting agencies do not
suffer… There comes the need for protecting the
witnesses. Time has come when serious and
undiluted thoughts are to be bestowed for
protecting witnesses so that ultimate truth
presented before the Court and justice triumphs
and that the trial is not reduced to mockery.....
41. The State has a definite role to play in
protecting the witnesses, to start with at least in
sensitive cases involving those in power, who has
political patronage and could wield muscle and
money power, to avert trial getting tainted and
derailed and truth becoming a casualty. As a
protector of its citizens it has to ensure that during
a trial in Court the witness could safely depose
truth without any fear of being haunted by those
against whom he had deposed. Every State has a
constitutional obligation and duty to protect the
life and liberty of its citizens. That is the
fundamental requirement for observance of the
rule of law. There cannot be any deviation from
this requirement because of any extraneous factors
like, caste, creed, religion, political belief or
ideology. Every State is supposed to know these
fundamental requirements and this needs no
retaliation (sic repetition). We can only say this
with regard to the criticism levelled against the
State of Gujarat. Some legislative enactments like
the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (in short the “TADA Act”)
have taken note of the reluctance shown by
witnesses to depose against people with muscle
power, money power or political power which has
become the order of the day. If ultimately truth is
to be arrived at, the eyes and ears of justice have
to be protected so that the interests of justice do
not get incapacitated in the sense of making the
proceedings before Courts mere mock trials as are
usually seen in movies.”
42. Likewise, in Sakshi v. Union of India, the menace
of witnesses turning hostile was again described in the
following words:
“32. The mere sight of the accused may induce an
element of extreme fear in the mind of the victim
or the witnesses or can put them in a state of
shock. In such a situation he or she may not be
able to give full details of the incident which may
result in miscarriage of justice. Therefore, a
screen or some such arrangement can be made
where the victim or witnesses do not have to
undergo the trauma of seeing the body or the face
of the accused. Often the questions put in crossexamination
are purposely designed to embarrass
or confuse the victims of rape and child abuse.
The object is that out of the feeling of shame or
embarrassment, the victim may not speak out or
give details of certain acts committed by the
accused. It will, therefore, be better if the
questions to be put by the accused in crossexamination
are given in writing to the Presiding
Officer of the Court, who may put the same to the
victim or witnesses in a language which is not
embarrassing. There can hardly be any objection
to the other suggestion given by the petitioner that
whenever a child or victim of rape is required to
give testimony, sufficient breaks should be given
as and when required. The provisions of subsection
(2) ofsection 327 Cr.P.C. should also apply
in inquiry or trial of offences under Section
354 and 377 IPC.”
43. In State v. Sanjeev Nanda, 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 Mishra
and Anr. [AIR 1996 SC 2766] held that it is
equally settled law that the evidence of 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. Superintendent of
Police and Anr., (AIR 2004 SC 524), 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 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 Sidhartha Vashisht
@ Manu Sharma v. State (NCT of Delhi), (2010) 6
SCC 1 and in Zahira Habibullah Shaikh v. State of
Gujarat, AIR 2006 SC 1367, 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 Courts
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 of the IPC imposes punishment for giving
false evidence but is seldom invoked.”
44. On the analysis of various cases, 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 in Zahira Habibullah's case as well.
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
Law Commission of India in its 198th Report[11], 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 Indian 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 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 Indian 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 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 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, 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 nonofficial
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-publicized 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 behavior 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.”
34. The recovery of empty cartridges recovered from the scene
matched with pistols recovered from the accused as per ballistic evidence.
Both accused Abhijeet Singh and Sanjeev Kumar alias Babba had reached
the spot together. Both the accused have fired shots at deceased Jatinder
alias Raju Chikna in furtherance of common intention.
35. Their Lordships of the Supreme Court in Krishnan and
another vs. State represented by Inspector of Police, (2003) 7 Supreme
Court Cases 56 have held that the applicability and rationale of common
intention depends upon facts and circumstances of each case. Acts of all
accused need not be the same or identically similar. They must be actuated
by one and the same common intention. Their Lordships have also
explained interrelation between “that act” and “the act”. Their Lordships
have held as under:-
“28. It is to be seen whether the accused persons in
furtherance of their common intention caused the death
of the deceased on the alleged date, time and place. A
charge under Section 34 of IPC presupposes the sharing
of a particular intention by more than one person to
commit a criminal act. The dominant feature of Section
34 is the element of participation in actions. This
participation need not in all cases be by physical
presence. Common intention implies acting in concert.
There is a prearranged plan which is proved either from
conduct or from circumstances or from incriminating
facts. The principle of joint liability in the doing of a
criminal act is embodied in Section 34 of the IPC. The
existence of common intention is to be the basis of
liability. That is why the prior concert and the
prearranged plan is the foundation of common intention
to establish liability and guilt.
29. Section 34 deals with the doing of separate acts,
similar or diverse, by several persons; if all are done in
furtherance of common intention, each person is liable
for the result of them all as if he had done them himself;
for “that act” and “the act” in the latter part of the
section must include the whole section covered by a
“criminal act” in the first part, because they refer to it.
Constructive liability under Section 34 may arise in
three well- defined cases. A person may be constructively
liable for an offence which he did not actually commit by
reason of:
(1) the common intention of all to commit such an
offence (Section 34)
(2) his being a member of a conspiracy to commit
such an offence (Section 120A)
(3) his being a member of an unlawful assembly,
the members whereof knew that an offence was
likely to be committed (Section 149). Section 34 is
framed to meet a case in which it may be difficult
to distinguish between the acts of individual
members of a party or to prove exactly what part
was taken by each of them. The reason why all are
deemed guilty in such cases is, that the presence of
accomplices gives encouragement, support and
protection to the person actually committing the
act. The provision embodies the common-sense
principle that if two or more persons intentionally
do a thing jointly it is just the same as if each of
them had done it individually.
xxx xxx xxx
31. Applicability of Section 34 depends upon the facts
and circumstances of each case. As such no hard and
fast rule can be laid down as to the applicability or nonapplicability
of Section 34. For applicability of the
section it is not necessary that the acts of several
persons charged with commission of an offence jointly,
must be the same or identically similar. The acts may be
different in character, but must have been actuated by
one and the same common intention in order to attract
the provision.
36. Their Lordships of the Supreme Court in Balu alias Bala
Subramaniam and another vs. State (UT of Pondicherry), (2016) 15
Supreme Court Cases 471 have laid down principle when Section 34 IPC
can be invoked. Their Lordships have held as under:-
“11. To invoke Section 34 IPC, it must be established
that the criminal act was done by more than one person
in furtherance of common intention of all. It must,
therefore, be proved that:- (i) there was common
intention on the part of several persons to commit a
particular crime and (ii) the crime was actually
committed by them in furtherance of that common
intention. The essence of liability under Section 34 IPC
is simultaneous conscious mind of persons participating
in the criminal action to bring about a particular result.
Minds regarding the sharing of common intention gets
satisfied when an overt act is established qua each of the
accused. Common intention implies pre-arranged plan
and acting in concert pursuant to the pre-arranged plan.
Common intention is an intention to commit the crime
actually committed and each accused person can be
convicted of that crime, only if he has participated in
that common intention.
12. The classic case on the subject is the judgment of the
Privy Council in Mahbub Shah v. Emperor, AIR 1945
PC 118, wherein it was held as under:-
“…Section 34 lays down a principle of joint
liability in the doing of a criminal act. The section
does not say “the common intentions of all” nor
does it say “an intention common to all”. Under
the section, the essence of that liability is to be
found in the existence of a common intention
animating the accused leading to the doing of a
criminal act in furtherance of such intention. To
invoke the aid of Section 34successfully, it must be
shown that the criminal act complained against
was done by one of the accused persons in the
furtherance of the common intention of all; if this
is shown, then liability for the crime may be
imposed on any one of the persons in the same
manner as if the act were done by him alone. This
being the principle, it is clear to their Lordships
that common intention within the meaning of the
section implies a pre-arranged plan, and to
convict the accused of an offence applying the
section it should be proved that the criminal act
was done in concert pursuant to the pre-arranged
plan. As has been often observed, it is difficult if
not impossible to procure direct evidence to prove
the intention of an individual; in most cases it has
to be inferred from his act or conduct or other
relevant circumstances of the case.”
(emphasis supplied)
Reiterating the above principles laid down by the Privy
Council in Mahbub Shah’s case, in Shankerlal
Kacharabhai and Others vs. State of Gujarat, AIR 1965
SC 1260, this Court held that the criminal act mentioned
in Section 34 IPC is the result of the concerted action of
more than one person and if the said result was reached
in furtherance of the common intention, each person is
liable for the result as if he had done it himself.
13. In Ramesh Singh v. State of A.P., (2004) 11 SCC
305, this Court held as under:-
“12. … As a general principle in a case of
criminal liability it is the primary responsibility of
the person who actually commits the offence and
only that person who has committed the crime can
be held guilty. By introducing Section 34 in the
Penal Code the legislature laid down the principle
of joint liability in doing a criminal act. The
essence of that liability is to be found in the
existence of a common intention connecting the
accused leading to the doing of a criminal act in
furtherance of such intention. Thus, if the act is the
result of a common intention then every person
who did the criminal act with that common
intention would be responsible for the offence
committed irrespective of the share which he had
in its perpetration. Section 34 IPC embodies the
principle of joint liability in doing the criminal act
based on a common intention. Common intention
essentially being a state of mind it is very difficult
to procure direct evidence to prove such intention.
Therefore, in most cases it has to be inferred from
the act like, the conduct of the accused or other
relevant circumstances of the case. The inference
can be gathered from the manner in which the
accused arrived at the scene and mounted the
attack, the determination and concert with which
the attack was made, and from the nature of injury
caused by one or some of them. The contributory
acts of the persons who are not responsible for the
injury can further be inferred from the subsequent
conduct after the attack. In this regard even an
illegal omission on the part of such accused can
indicate the sharing of common intention. In other
words, the totality of circumstances must be taken
into consideration in arriving at the conclusion
whether the accused had the common intention to
commit an offence of which they could be
convicted. (See Noor Mohammad Mohd. Yusuf
Momin v. State of Maharashtra, (1970) 1 SCC
696)”
(emphasis supplied)
14. Common intention is seldom capable of direct
proof, it is almost invariably to be inferred from proved
circumstances relating to the entire conduct of all the
persons and not only from the individual act actually
performed. The inference to be drawn from the manner
of the origin of the occurrence, the manner in which the
accused arrived at the scene and the concert with which
attack was made and from the injuries caused by one or
some of them. The criminal act actually committed would
certainly be one of the important factors to be taken into
consideration but should not be taken to be the sole
factor.
15. Under Section 34 IPC, a pre-concert in the sense
of a distinct previous plan is not necessary to be proved.
The common intention to bring about a particular result
may well develop on the spot as between a number of
persons, with reference to the facts of the case and
circumstances of the situation. The question whether
there was any common intention or not depends upon the
inference to be drawn from the proving facts and
circumstances of each case. The totality of the
circumstances must be taken into consideration in
arriving at the conclusion whether the accused had a
common intention to commit an offence with which they
could be convicted.”
37. Their Lordships of the Supreme Court in Bablu Kumar and
others vs. State of Bihar and another, (2015) 8 Supreme Court Cases 787
have held that the Presiding Judge has to play proactive role of Court to
ensure fair trial. The Court cannot be a silent spectator or mute observer
when it presides over trial. It is duty of Court to see that neither prosecution
nor accused play truancy with criminal trial or corrode sanctity of the
proceedings. The law does not countenance a “mock trial”. Their Lordships
have held as under:-
“1. The pivotal issues, quite disturbing and
disquieting, that emanate in this appeal by special leave
for scrutiny, deliberation and apposite delineation,
fundamentally pertain to the role of the prosecution and
the duty of the court within the requisite paradigm of fair
trial which in the ultimate conceptual eventuality results
in appropriate stability of criminal justice dispensation
system. The attitude of callousness and nonchalance
portrayed by the prosecution and the total indifferent
disposition exhibited by the learned trial Judge in
shutting out the evidence and closing the trial after
examining a singular formal witness, PW 1, in a trial
where the accused persons were facing accusations for
the offences punishable under Sections 147, 148, 149,
341, 342 and 302 of the Penal Code, 1860 (IPC), which
entailed an acquittal under Section 232 of the Criminal
Procedure Code, 1973 (CrPC), are really disconcerting;
and indubitably cause discomfort to the judicial
conscience. It seems that everyone concerned with the
trial has treated it as a farce where the principal
protagonists compete with each other for gaining
supremacy in the race of closing the case
unceremoniously, burying the basic tenets of fair trial,
and abandoning one's duty to serve the cause of justice
devoutly. It is a case where the prosecution has played
truant and the learned trial Judge, with apathy, has
exhibited impatience.
2. Fortunately, the damage done by the trial court
has been rectified by the High Court in exercise of the
revisional jurisdiction under Section 401 CrPC; but
what is redemption for the conception of the fair trial
has caused dissatisfaction to the accused persons, for
they do not intend to face the retrial. It is because at one
point of time, the High Court had directed1 for
finalisation of the trial within a fixed duration and the
learned trial Judge, in all possibility, harboured the
impression that even if the prosecution witnesses had not
been served the notice to depose in court, and the
prosecution had not taken any affirmative steps to make
them available for adducing evidence in court, yet he
must conclude the trial by the target date as if it is a
mechanical and routine act. The learned trial Judge, as
it appears to us, has totally forgotten that he could have
asked for extension of time from the High Court, for the
High Court, and we are totally convinced, could never
have meant to conclude the trial either at the pleasure of
the prosecution or the desire of the accused.
xxx xxx xxx
8. On a scrutiny of the orders passed by the learned
trial Judge from time to time, we find that the learned
trial Judge has really not taken pains to verify whether
the summons had really been served on the witnesses or
not. The High Court has rightly observed that the trial
court has also not tried to verify from the record whether
the warrants had been executed or not. As is manifest, he
had directed the prosecution to produce the witnesses
and mechanically recorded that the witnesses were not
present and proceeded to direct the prosecution to keep
them present. Eventually, as we have stated earlier, the
trial Judge posted the matter to 23-5-2008 and passed
an order under Section 232 CrPC.
9. The question that arises for consideration is
whether under these circumstances the High Court while
dealing with the revision under Section 401 CrPC
should have interfered and directed for the retrial of the
case.
10. In this regard, we may refer with profit to the
decision in K. Chinnaswamy Reddy v. State of A.P AIR
1962 SC 1788, wherein a three-Judge Bench while
dealing with the power of the High Court for directing
retrial has ruled thus: (AIR pp. 1791-92, para 7)
“7. It is true that it is open to a High Court in
revision to set aside an order of acquittal even at
the instance of private parties, though the State
may not have thought fit to appeal; but this
jurisdiction should in our opinion be exercised by
the High Court only in exceptional cases, when
there is some glaring defect in the procedure or
there is a manifest error on a point of law and
consequently there has been a flagrant
miscarriage of justice. Sub-section (4) of Section
439 forbids a High Court from converting a
finding of acquittal into one of conviction and that
makes it all the more incumbent on the High Court
to see that it does not convert the finding of
acquittal into one of conviction by the indirect
method of ordering retrial, when it cannot itself
directly convert a finding of acquittal into a
finding of conviction. This places limitations on
the power of the High Court to set aside a finding
of acquittal in revision and it is only in
exceptional cases that this power should be
exercised. It is not possible to lay down the
criteria for determining such exceptional cases
which would cover all contingencies. We may
however indicate some cases of this kind, which
would in our opinion justify the High Court in
interfering with a finding of acquittal in revision.
These cases may be: where the trial court has no
jurisdiction to try the case but has still acquitted
the accused, or where the trial court has wrongly
shut out evidence which the prosecution wished to
produce, or where the appeal court has wrongly
held evidence which was admitted by the trial
court to be inadmissible, or where material
evidence has been overlooked either by the trial
court or by the appeal court, or where the
acquittal is based on a compounding of the
offence, which is invalid under the law. These and
other cases of similar nature can properly be held
to be cases of exceptional nature, where the High
Court can justifiably interfere with an order of
acquittal; and in such a case it is obvious that it
cannot be said that the High Court was doing
indirectly what it could not do directly in view of
the provisions of Section 439(4).”
From the aforesaid decision, it is apparent that the High
Court would be justified to interfere with an order of
acquittal if the trial court has wrongly shut out the
evidence which the prosecution wishes to produce. It is
one of the instances given by the Court in the aforesaid
verdict.
xxx xxx xxx
17. In the present context, it is also necessary to
appreciate the basic concept behind a fair trial.
In Sidhartha Vashisht Alias Manu Sharma v. State (Nct
Of Delhi) 2010 6 SCC 1 it has been stated that: (SCC
pp. 79-80, para 197)
“197. In the Indian criminal jurisprudence, the
accused is placed in a somewhat advantageous
position than under different jurisprudence of
some of the countries in the world. The criminal
justice administration system in India places
human rights and dignity for human life at a much
higher pedestal. In our jurisprudence an accused
is presumed to be innocent till proved guilty, the
alleged accused is entitled to fairness and true
investigation and fair trial and the prosecution is
expected to play balanced role in the trial of a
crime. The investigation should be judicious, fair,
transparent and expeditious to ensure compliance
with the basic rule of law. These are the
fundamental canons of our criminal jurisprudence
and they are quite in conformity with the
constitutional mandate contained in Articles 20
and 21 of the Constitution of India.”
(emphasis supplied)
18. In Rattiram v. State of M.P 2012 4 SCC 516 a
three-Judge Bench has ruled thus: (SCC p. 534, para
39)
“39. … Fundamentally, a fair and impartial trial
has a sacrosanct purpose. It has a demonstrable
object that the accused should not be prejudiced.
A fair trial is required to be conducted in such a
manner which would totally ostracise injustice,
prejudice, dishonesty and favouritism.”
And again: (SCC p. 542, para 62)
“62. … Decidedly, there has to be a fair trial and
no miscarriage of justice and under no
circumstances, prejudice should be caused to the
accused but, a pregnant one, every procedural
lapse or every interdict that has been acceded to
and not objected at the appropriate stage would
not get the trial dented or make it unfair. Treating
it to be unfair would amount to an undesirable
state of pink of perfection in procedure. An
absolute apple-pie order in carrying out the
adjective law, would only be sound and fury
signifying nothing.”
19. In this regard, it is apt to reproduce a passage
from Natasha Singh v. Central Bureau Of Investigation
(State). 2013 5 SCC 741 wherein it has been laid down:
(SCC p. 749, para 16)
“16. Fair trial is the main object of criminal
procedure, and it is the duty of the court to ensure
that such fairness is not hampered or threatened
in any manner. Fair trial entails the interests of
the accused, the victim and of the society, and
therefore, fair trial includes the grant of fair and
proper opportunities to the person concerned, and
the same must be ensured as this is a
constitutional, as well as a human right. Thus,
under no circumstances can a person's right to
fair trial be jeopardised.”
20. In J. Jayalalithaa v. State of Karnataka 2014 2 SCC
401 the Court dealing with the concept of a fair trial has
opined that: (SCC pp. 414-15, para 29)
“29. Denial of a fair trial is as much injustice to
the accused as is to the victim and the society. It
necessarily requires a trial before an impartial
Judge, a fair prosecutor and an atmosphere of
judicial calm. Since the object of the trial is to
mete out justice and to convict the guilty and
protect the innocent, the trial should be a search
for the truth and not a bout over technicalities and
must be conducted under such rules as will protect
the innocent and punish the guilty. Justice should
not only be done but should be seem to have been
done. Therefore, free and fair trial is a sine qua
non of Article 21 of the Constitution.”
21. The same principle has also been stated in NHRC
v. State of Gujarat 2009 6 SCC 767, State Of Karnataka
v. K. Yarappa Reddy. 1999 8 SCC 715, Ram Bali v.
State Of U.P.2004 10 SCC 598, Karnel Singh v. State Of
M.P. 1995 5 SCC 518 and Dayal Singh v. State of
Uttaranchal 2012 8 SCC 263.
22. Keeping in view the concept of fair trial, the
obligation of the prosecution, the interest of the
community and the duty of the court, it can irrefragably
be stated that the court cannot be a silent spectator or a
mute observer when it presides over a trial. It is the duty
of the court to see that neither the prosecution nor the
accused play truancy with the criminal trial or corrode
the sanctity of the proceeding. They cannot expropriate
or hijack the community interest by conducting
themselves in such a manner as a consequence of which
the trial becomes a farcical one. The law does not
countenance a “mock trial”. It is a serious concern of
society. Every member of the collective has an inherent
interest in such a trial. No one can be allowed to create
a dent in the same. The court is duty-bound to see that
neither the prosecution nor the defence takes
unnecessary adjournments and take the trial under their
control. The court is under the legal obligation to see
that the witnesses who have been cited by the
prosecution are produced by it or if summons are issued,
they are actually served on the witnesses. If the court is
of the opinion that the material witnesses have not been
examined, it should not allow the prosecution to close
the evidence. There can be no doubt that the prosecution
may not examine all the material witnesses but that does
not necessarily mean that the prosecution can choose
not to examine any witness and convey to the court that
it does not intend to cite the witnesses. The Public
Prosecutor who conducts the trial has a statutory duty to
perform. He cannot afford to take things in a light
manner. The court also is not expected to accept the
version of the prosecution as if it is sacred. It has to
apply its mind on every occasion. Non-application of
mind by the trial court has the potentiality to lead to the
paralysis of the conception of fair trial.”
38. Their Lordships of the Supreme Court in State (NCT of Delhi)
vs. Shiv Kumar Yadav and another, (2016) 2 Supreme Court Cases 402
have held that fairness of trial should not only be from point of view of
accused, but also from point of view of victim and society. Their Lordships
have held as under:-
“11. It is further well settled that fairness of trial has to
be seen not only from the point of view of the accused,
but also from the point of view of the victim and the
society. In the name of fair trial, the system cannot be
held to ransom. The accused is entitled to be represented
by a counsel of his choice, to be provided all relevant
documents, to cross- examine the prosecution witnesses
and to lead evidence in his defence. The object of
provision for recall is to reserve the power with the court
to prevent any injustice in the conduct of the trial at any
stage. The power available with the court to prevent
injustice has to be exercised only if the Court, for valid
reasons, feels that injustice is caused to a party. Such a
finding, with reasons, must be specifically recorded by
the court before the power is exercised. It is not possible
to lay down precise situations when such power can be
exercised. The Legislature in its wisdom has left the
power undefined. Thus, the scope of the power has to be
considered from case to case. The guidance for the
purpose is available in several decisions relied upon by
the parties. It will be sufficient to refer to only some of
the decisions for the principles laid down which are
relevant for this case.
12. In Rajaram case, the complainant was examined
but he did not support the prosecution case. On account
of subsequent events he changed his mind and applied
for recall under Section 311 Cr.P.C. which was declined
by the trial court but allowed by the High Court. This
Court held such a course to be impermissible, it was
observed :
“13. .. In order to appreciate the stand of the
appellant it will be worthwhile to refer to Section
311 CrPC, as well as Section 138 of the Evidence
Act. The same are extracted hereunder:
Section 311, Code of Criminal Procedure
“311. Power to summon material witness, or
examine person present.—Any court may, at any
stage of any inquiry, trial or other proceeding
under this Code, summon any person as a witness,
or examine any person in attendance, though not
summoned as a witness, or recall and re-examine
any person already examined; and the court shall
summon and examine or recall and re-examine
any such person if his evidence appears to it to be
essential to the just decision of the case.”
* * *
Section 138, Evidence Act
“138. Order of examinations.—Witnesses shall be
first examined-in-chief then (if the adverse party
so desires) cross-examined, then (if the party
calling him so desires) re-examined.
The examination and cross-examination
must relate to relevant facts but the crossexamination
need not be confined to the facts to
which the witness testified on his examination-inchief.
Direction of re-examination.—The reexamination
shall be directed to the explanation of
matters referred to in cross-examination; and if
new matter is, by permission of the court,
introduced in re-examination, the adverse party
may further cross-examine upon that matter.”
14. A conspicuous reading of Section 311 CrPC
would show that widest of the powers have been
invested with the courts when it comes to the
question of summoning a witness or to recall or
re-examine any witness already examined. A
reading of the provision shows that the expression
“any” has been used as a prefix to “court”,
“inquiry”, “trial”, “other proceeding”, “person
as a witness”, “person in attendance though not
summoned as a witness”, and “person already
examined”. By using the said expression “any” as
a prefix to the various expressions mentioned
above, it is ultimately stated that all that was
required to be satisfied by the court was only in
relation to such evidence that appears to the court
to be essential for the just decision of the case.
Section 138 of the Evidence Act, prescribed the
order of examination of a witness in the court. The
order of re-examination is also prescribed calling
for such a witness so desired for such reexamination.
Therefore, a reading of Section 311
CrPC and Section 138 Evidence Act, insofar as it
comes to the question of a criminal trial, the order
of re-examination at the desire of any person
under Section 138, will have to necessarily be in
consonance with the prescription contained in
Section 311 CrPC. It is, therefore, imperative that
the invocation of Section 311 CrPC and its
application in a particular case can be ordered by
the court, only by bearing in mind the object and
purport of the said provision, namely, for
achieving a just decision of the case as noted by us
earlier. The power vested under the said provision
is made available to any court at any stage in any
inquiry or trial or other proceeding initiated
under the Code for the purpose of summoning any
person as a witness or for examining any person
in attendance, even though not summoned as
witness or to recall or re-examine any person
already examined. Insofar as recalling and reexamination
of any person already examined is
concerned, the court must necessarily consider
and ensure that such recall and re-examination of
any person, appears in the view of the court to be
essential for the just decision of the case.
Therefore, the paramount requirement is just
decision and for that purpose the essentiality of a
person to be recalled and re- examined has to be
ascertained. To put it differently, while such a
widest power is invested with the court, it is
needless to state that exercise of such power
should be made judicially and also with extreme
care and caution.”
(emphasis in original)
13. After referring to earlier decisions on the point,
the Court culled out following principles to be borne in
mind :
“17.1. Whether the court is right in thinking that
the new evidence is needed by it? Whether the
evidence sought to be led in under Section 311 is
noted by the court for a just decision of a case?
17.2. The exercise of the widest discretionary
power under Section 311 CrPC should ensure that
the judgment should not be rendered on inchoate,
inconclusive and speculative presentation of facts,
as thereby the ends of justice would be defeated.
17.3. If evidence of any witness appears to the
court to be essential to the just decision of the
case, it is the power of the court to summon and
examine or recall and re-examine any such
person.
17.4. The exercise of power under Section 311
CrPC should be resorted to only with the object of
finding out the truth or obtaining proper proof for
such facts, which will lead to a just and correct
decision of the case.
17.5. The exercise of the said power cannot be
dubbed as filling in a lacuna in a prosecution
case, unless the facts and circumstances of the
case make it apparent that the exercise of power
by the court would result in causing serious
prejudice to the accused, resulting in miscarriage
of justice.
17.6. The wide discretionary power should be
exercised judiciously and not arbitrarily.
17.7. The court must satisfy itself that it was in
every respect essential to examine such a witness
or to recall him for further examination in order to
arrive at a just decision of the case.
17.8. The object of Section 311 CrPC
simultaneously imposes a duty on the court to
determine the truth and to render a just decision.
17.9. The court arrives at the conclusion that
additional evidence is necessary, not because it
would be impossible to pronounce the judgment
without it, but because there would be a failure of
justice without such evidence being considered.
17.10. Exigency of the situation, fair play and
good sense should be the safeguard, while
exercising the discretion. The court should bear in
mind that no party in a trial can be foreclosed
from correcting errors and that if proper evidence
was not adduced or a relevant material was not
brought on record due to any inadvertence, the
court should be magnanimous in permitting such
mistakes to be rectified.
17.11. The court should be conscious of the
position that after all the trial is basically for the
prisoners and the court should afford an
opportunity to them in the fairest manner possible.
In that parity of reasoning, it would be safe to err
in favour of the accused getting an opportunity
rather than protecting the prosecution against
possible prejudice at the cost of the accused. The
court should bear in mind that improper or
capricious exercise of such a discretionary power,
may lead to undesirable results.
17.12. The additional evidence must not be
received as a disguise or to change the nature of
the case against any of the party.
17.13. The power must be exercised keeping in
mind that the evidence that is likely to be tendered,
would be germane to the issue involved and also
ensure that an opportunity of rebuttal is given to
the other party.
17.14. The power under Section 311 CrPC must
therefore, be invoked by the court only in order to
meet the ends of justice for strong and valid
reasons and the same must be exercised with care,
caution and circumspection. The court should
bear in mind that fair trial entails the interest of
the accused, the victim and the society and,
therefore, the grant of fair and proper
opportunities to the persons concerned, must be
ensured being a constitutional goal, as well as a
human right.”
14. In Hoffman Andreas case, the counsel who was
conducting the case was ill and died during the progress
of the trial. The new counsel sought recall on the ground
that the witnesses could not be cross-examined on
account of illness of the counsel. This prayer was
allowed in peculiar circumstances with the observation
that normally a closed trial could not be reopened but
illness and death of the counsel was in the facts and
circumstances considered to be a valid ground for recall
of witnesses. It was observed :
“6. Normally, at this late stage, we would be
disinclined to open up a closed trial once again.
But we are persuaded to consider it in this case on
account of the unfortunate development that took
place during trial i.e. the passing away of the
defence counsel midway of the trial. The counsel
who was engaged for defending the appellant had
cross-examined the witnesses but he could not
complete the trial because of his death. When the
new counsel took up the matter he would certainly
be under the disadvantage that he could not
ascertain from the erstwhile counsel as to the
scheme of the defence strategy which the
predeceased advocate had in mind or as to why he
had not put further questions on certain aspects.
In such circumstances, if the new counsel thought
to have the material witnesses further examined
the Court could adopt latitude and a liberal view
in the interest of justice, particularly when the
Court has unbridled powers in the matter as
enshrined in Section 311 of the Code. After all the
trial is basically for the prisoners and courts
should afford the opportunity to them in the fairest
manner possible.”
39. Their Lordships of the Supreme Court in Vinod Kumar vs.
State of Punjab, (2015)3 Supreme Court Cases 220 have held that calling
of a witness for cross-examination after a long span of time is anathema to
concept of proper and fair trial. Their Lordships have summerised the duty
of Court which are required to be taken into consideration while conducting
trial. Their Lordships have held as under:-
“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 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 pressurize 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 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 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 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 crossexamination.
It is inconceivable in law that the crossexamination
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 safe-guarded. 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 crossexamination
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.”
40. Their Lordships of the Supreme Court in Ajay Singh and
another vs. State of Chhattisgarh and another, (2017) 3 Supreme Court
Cases 330 have held that a trial Judge in a criminal case has immense
responsibility as he has a lawful duty to record the evidence in the
prescribed manner keeping in mind the command postulated in Section 309
Cr.P.C. and pronounce the judgment as provided under the Cr.P.C. Their
Lordships have held as under:-
“29. The case at hand constrains us to say that a trial
Judge should remember that he has immense
responsibility as he has a lawful duty to record the
evidence in the prescribed manner keeping in mind the
command postulated in Section 309 of the CrPC and
pronounce the judgment as provided under the Code. A
Judge in charge of the trial has to be extremely diligent
so that no dent is created in the trial and in its eventual
conclusion. Mistakes made or errors committed are to be
rectified by the appellate court in exercise of “error
jurisdiction”. That is a different matter. But, when a
situation like the present one crops up, it causes agony,
an unbearable one, to the cause of justice and hits like a
lightning in a cloudless sky. It hurts the justice
dispensation system and no one, and we mean no one,
has any right to do so. The High Court by rectifying the
grave error has acted in furtherance of the cause of
justice. The accused persons might have felt delighted in
acquittal and affected by the order of rehearing, but they
should bear in mind that they are not the lone receivers
of justice. There are victims of the crime. Law serves
both and justice looks at them equally. It does not
tolerate that the grievance of the victim should be
comatosed in this manner.”
41. Their Lordships of the Supreme Court in Doongar and others
vs. State of Rajasthan, (2019) 1 Supreme Court Cases (Crl) 410 have held
that in criminal case, trial Court has to be mindful that for protection of
witness and also in interest of justice mandate of Section 309 requiring
expeditious disposal of proceedings by examining all witnesses on
continuous basis unless Court finds adjournment of same beyond following
day to be necessary for reasons to be recorded, need to be strictly complied
with. Their Lordships have further held that unless this is done there is
every chance of witnesses succumbing to pressure/threat of accused. Their
Lordships have held as under:-
“3. Before parting with this matter, we must record a
disturbing feature in the conduct of the trial of the
present case. After recording examination-in-chief of the
star witness, PW-14 Prabhu Singh, on 13th April, 2010,
the matter was adjourned on the request of defence
counsel to 25th August, 2010 i.e. for about more than
four months. After that, part evidence of the witnesses
was recorded on 24th September, 2010 and the matter
was again adjourned to 11th October, 2010. Before that,
four witnesses of the same family in their statements
recorded on 10th April, 2010 had become hostile.
4. In a criminal case of this nature, the trial court
has to be mindful that for the protection of witness and
also in the interest of justice the mandate of Section
309 of the Cr.P.C. has to be complied with and evidence
should be recorded on continuous basis. If this is not
done, there is every chance of witnesses succumbing to
the pressure or threat of the accused.
5. This aspect of the matter has received the
attention of this Court on number of occasions earlier.
In State of U.P. versus Shambhu Nath Singh and Others1
this Court observed it was a pity that the Sessions Court
adjourned the matter for a long interval after
commencement of evidence, contrary to the mandate
of Section 309 of the Cr.P.C. Once examination of
witnesses begins, the same has to be continued from dayto-
day unless evidence of the available witnesses is
recorded, except when adjournment beyond the
following day has to be granted for reasons recorded.
This Court observed:
“12. Thus, the legal position is that once
examination of witnesses started, the court has to
continue the trial from day to day until all
witnesses in attendance have been examined
(except those whom the party has given up). The
court has to record reasons for deviating from the
said course. Even that is forbidden when witnesses
are present in court, as the requirement then is
that the court has to examine them. Only if there
are “special reasons”, which reasons should find
a place in the order for adjournment, that alone
can confer jurisdiction on the court to adjourn the
case without examination of witnesses who are
present in court.
13. Now, we are distressed to note that it is almost
a common practice and regular occurrence that
trial courts flout the said command with impunity.
Even when witnesses are present, cases are
adjourned on far less serious reasons or even on
flippant grounds. Adjournments are granted even
in such situations on the mere asking for it. Quite
often such adjournments are granted to suit the
convenience of the advocate concerned. We make
it clear that the legislature has frowned at
granting adjournments on that ground. At any rate
inconvenience of an advocate is not a “special
reason” for bypassing the mandate of Section 309
of the Code.
14. If any court finds that the day-to-day
examination of witnesses mandated by the
legislature cannot be complied with due to the
non-cooperation of the accused or his counsel the
court can adopt any of the measures indicated in
the sub-section i.e. remanding the accused to
custody or imposing cost on the party who wants
such adjournments (the cost must be
commensurate with the loss suffered by the
witnesses, including the expenses to attend the
court). Another option is, when the accused is
absent and the witness is present to be examined,
the court can cancel his bail, if he is on bail
(unless an application is made on his behalf
seeking permission for his counsel to proceed to
examine the witnesses present even in his absence
provided the accused gives an undertaking in
writing that he would not dispute his identity as
the particular accused in the case).
15. The time-frame suggested by a three-Judge
Bench of this Court in Raj Deo Sharma v. State of
Bihar2 is partly in consideration of the legislative
mandate contained in Section 309(1) of the Code.
This is what the Bench said on that score: (SCC p.
516, para 16)
“16. The Code of Criminal Procedure is
comprehensive enough to enable the
Magistrate to close the prosecution if the
prosecution is unable to produce its
witnesses in spite of repeated
opportunities. Section 309(1) CrPC
supports the above view as it enjoins
expeditious holding of the proceedings and
continuous examination of witnesses from
day to day. The section also provides for
recording reasons for adjourning the case
beyond the following day.”
xxx xxx xxx
17. We believe, hopefully, that the High Courts
would have issued the circular desired by the Apex
Court as per the said judgment. If the insistence 2
(1998) 7 SCC 507 made by Parliament
through Section 309 of the Code can be adhered
to by the trial courts there is every chance of the
parties cooperating with the courts for achieving
the desired objects and it would relieve the agony
which witnesses summoned are now suffering on
account of their non-examination for days.
xxx xxx xxx
19. In some States a system is evolved for framing
a schedule of consecutive working days for
examination of witnesses in each sessions trial to
be followed. Such schedule is fixed by the court
well in advance after ascertaining the convenience
of the counsel on both sides. Summons or process
would then be handed over to the Public
Prosecutor in charge of the case to cause them to
be served on the witnesses. Once the schedule is
so fixed and witnesses are summoned the trial
invariably proceeds from day to day. This is one
method of complying with the mandates of the law.
It is for the presiding officer of each court to chalk
out any other methods, if any, found better for
complying with the legal provisions contained
in Section 309 of the Code. Of course, the High
Court can monitor, supervise and give directions,
on the administration side, regarding measures to
conform to the legislative insistence contained in
the above section.”
6. The above decision has been repeatedly followed.
In Mohd.Khalid versus State of W.B. 3, this Court noted
how adjournment can result in witnesses being won
over. It was observed:
“54. Before parting with the case, we may point
out that the Designated Court deferred the cross-
examination of the witnesses for a long time. That
is a feature which is being noticed in many cases.
Unnecessary adjournments give a scope for a
grievance that the accused persons get a time to
get over the witnesses. Whatever be the truth in
this allegation, the fact remains that such
adjournments lack the spirit of Section 309 of the
Code. When a witness is available and his
examination-in-chief is over, unless compelling
reasons are there, the trial court should not
adjourn the matter on the mere asking. These
aspects were highlighted by this Court in State of
U.P. versus Shambhu Nath Singh and N.G.
Dastane versus Shrikant S. Shivde … … …”
7. Again in Vinod Kumar versus State of Punjab 6
this Court noted how unwarranted adjournments during
the trial jeopardise the administration of Justice. It was
observed:
“3. The narration of the sad chronology shocks
the judicial conscience and gravitates the mind to
pose a question: Is it justified for any
conscientious trial Judge to ignore the statutory
command, not recognise “the felt necessities of
time” and remain impervious to the cry of the
collective asking for justice or give an indecent
and uncalled for burial to the conception of trial,
totally ostracising the concept that a civilised and
orderly society thrives on the rule of law which
includes “fair trial” for the accused as well as the
prosecution?
4. In the aforesaid context, we may recapitulate a
passage from Gurnaib Singh v. State of Punjab
(SCC p. 121, para 26)
“26. … we are compelled to proceed to
reiterate the law and express our anguish
pertaining to the manner in which the trial
was conducted as it depicts a very
disturbing scenario. As is demonstrable
from the record, the trial was conducted in
an extremely haphazard and piecemeal
manner. Adjournments were granted on a
mere asking. The cross-examination of the
witnesses were deferred without recording
any special reason and dates were given
after a long gap. The mandate of the law
and the views expressed by this Court from
time to time appears to have been totally
kept at bay. The learned trial Judge, as is
perceptible, seems to have ostracised from
his memory that a criminal trial has its own
gravity and sanctity. In this regard, we may
refer with profit to the pronouncement
in Talab Haji Hussain v. Madhukar
Purshottam Mondkar8 wherein it has been
stated that an accused person by his
conduct cannot put a fair trial into
jeopardy, for it is the primary and
paramount duty of the criminal courts to
ensure that the risk to fair trial is removed
and trials are allowed to proceed smoothly
without any interruption or obstruction.”
8. In spite of repeated directions of this Court, the
situation appears to have remained unremedied. We
hope that the Presiding Officers of the trial courts
conducting criminal trials will be mindful of not giving
such adjournments after commencement of the evidence
in serious criminal cases. We are also of the view that it
is necessary in the interest of justice that the eyewitnesses
are examined by the prosecution at the
earliest.
9. It is also necessary that the statements of eyewitnesses
are got recorded during investigation itself
under Section 164 of the Cr.P.C. In view of amendment
to Section 164 Cr.P.C. by the Act No. 5 of 2009, such
statement of witnesses should be got recorded by audiovideo
electronic means.
10. To conclude:
10.1 The trial courts must carry out the mandate
of Section 309 of the Cr.P.C. as reiterated in judgments
of this Court, inter alia, in State of U.P. versus Shambhu
Nath Singh and Others, Mohd. Khalid versus State of
W.B. and Vinod Kumar versus State of Punjab.
10.2 The eye-witnesses must be examined by the
prosecution as soon as possible.
10.3 Statements of eye-witnesses should invariably be
recorded under Section 164 of the Cr.P.C. as per
procedure prescribed thereunder.”
42. Their Lordships of the Supreme Court in State of U.P. vs.
Shambhu Nath Singh and others, (2001) 4 Supreme Court Cases 667 have
held that when witnesses are in Court, they will have to be examined except
for “special reasons” which are to be recorded in the order of adjournment.
Inconvenience of advocate is not a special reason. Their Lordships have
held as under:-
“8. If the Sessions Judge had succumbed to the
collusive tactics of the parties in serious offences like
murder by acquitting the accused on the ground of want
of evidence in spite of witnesses being present on a large
number of dates the public confidence in the efficacy of
the administration of criminal justice would be further
drained considerably. In the present case, when PW-1
was examined in chief the court should have posted the
case to the next working day for completion of crossexamination
of that witness. What a pity when a Sessions
Court was engaged in adjourning and again adjourning
the case at long intervals in spite of the presence of eye
witnesses willing to be examined fully. If the trial court
thought it fit to close the evidence on a day when the
witness could not be present, the accused would have
had the last laugh.
9. We make it abundantly clear that if a witness is
present in court he must be examined on that day. The
court must know that most of the witnesses could attend
the court only at heavy cost to them, after keeping aside
their own avocation. Certainly they incur suffering and
loss of income. The meagre amount of Bhatta
(allowance) which a witness may be paid by the court is
generally a poor solace for the financial loss incurred by
him. It is a sad plight in the trial courts that witnesses
who are called through summons or other processes
stand at the doorstep from morning till evening only to
be told at the end of the day that the case is adjourned to
another day. This primitive practice must be reformed by
presiding officers of the trial courts and it can be
reformed by every one provided the presiding officer
concerned has a commitment to duty. No sadistic
pleasure in seeing how other persons summoned by him
as witnesses are stranded on account of the dimension of
his judicial powers can be a persuading factor for
granting such adjournments lavishly, that too in a casual
manner.
xxx xxx xxx
12. Thus, the legal position is that once examination
of witnesses started the court has to continue the trial
from day to day until all witnesses in attendance have
been examined (except those whom the party has given
up). The court has to record reasons for deviating from
the said course. Even that is forbidden when witnesses
are present in court, as the requirement then is that the
court has to examine them. Only if there are special
reasons, which reasons should find a place in the order
for adjournment, that alone can confer jurisdiction on
the court to adjourn the case without examination of
witnesses who are present in court.
13. Now, we are distressed to note that it is almost a
common practice and regular occurrence that trial
courts flout the said command with immunity. Even when
witnesses are present cases are adjourned on far less
serious reasons or even on flippant grounds.
Adjournments are granted even in such situations on the
mere asking for it. Quite often such adjournments are
granted to suit the convenience of the advocate
concerned. We make it clear that the legislature has
frowned at granting adjournments on that ground. At
any rate inconvenience of an advocate is not a special
reason for bypassing the mandate of Section 309 of the
Code.
xxx xxx xxx
18. It is no justification to glide on any alibi by
blaming the infrastructure for skirting the legislative
mandates embalmed in Section 309 of the Code. A
judicious judicial officer who is committed to his work
could manage with the existing infrastructure for
complying with such legislative mandates. The precept in
the old homily that a lazy workman always blames his
tools, is the only answer to those indolent judicial
officers who find fault with the defects in the system and
the imperfections of the existing infrastructure for his
tardiness in coping up with such directions.
19. In some states a system is evolved for framing a
schedule of consecutive working days for examination of
witnesses in each sessions trial to be followed. Such
schedule is fixed by the Court well in advance after
ascertaining the convenience of the counsel on both
sides. Summons or process would then be handed over to
the Public Prosecutor incharge of the case to cause them
to be served on the witnesses. Once the schedule is so
fixed and witnesses are summoned the trial invariably
proceeds from day today. This is one method of
complying with the mandates of the law. It is for the
presiding officer of each court to chalk out any other
methods, if any found better, for complying with the
legal provisions contained in Section 309 of the Code. Of
course, the High Court can monitor, supervise and give
directions, on the administration side, regarding
measures to conform to the legislative insistence
contained in the above section.
20. We have no doubt that in this case a miscarriage
of justice has occasioned due to the failure of the trial
court to comply with the mandatory directions contained
in the Code. Criminal justice cannot be allowed to be
defeated solely on account of inaction or lapses of the
court in adhering to the mandates of law. When the State
of UP moved the High Court of Allahabad, in this case,
seeking leave to appeal, the above aspect should have
been considered by the learned Judges and set right the
grave miscarriage of justice occasioned on account of
flouting the directions of law.
21. We, therefore, allow this appeal and set aside the
order of the acquittal passed by the trial court. We direct
the trial court to proceed with the further examination of
PW-1 and examination of other witnesses to whom the
court should issue process if so requested by the
prosecution. (It is open to the prosecution to produce
such witnesses without bothering the Court to issue
summons to them). The case shall be disposed of after
taking all the remaining steps, in accordance with law.”
43. Their Lordships of the Supreme Court in Mohd. Khalid vs.
State of Punjab, (2002) 7 Supreme Court Cases 334 have reiterated that
when a witness is available and his examination-in-chief is over, unless
compelling reasons are there, trial Court should not adjourn the matter on
the mere asking. Their Lordships have held as under:-
“54. Before parting with the case, we may point out
that the Designated Court deferred the cross
examination of the witnesses for a long time. That is a
feature which is being noticed in many cases.
Unnecessary adjournments give a scope for a grievance
that accused persons get a time to get over the witnesses.
Whatever be the truth in this allegation, the fact remains
that such adjournments lack the spirit of Section 309 of
the Code. When a witness is available and his
examination-in-chief is over, unless compelling reasons
are there, the Trial Court, should not adjourn the matter
on mere asking. These aspects were highlighted by this
Court in State of U.P. v. Shambhu Nath Singh and Ors.,
[2001] 4 SCC 667 and N.G. Dastance, v. Shrikant S.
Shivde and Anr., [2001] 6 SCC 135. In Shambhu Nath
Singh's case (supra) this Court deprecated the practice
of courts adjourning cases without examination of
witnesses when they are in attendance with following
observations:
"9. We make it abundantly clear that if a witness is
present in court he must be examined on that day.
The court must know that most of the witnesses
could attend the court only at heavy cost to them,
after keeping aside their own avocation. Certainly
they incur suffering and loss of income. The
meagre amount of bhatta (allowance) which a
witness may be paid by the court is generally a
poor solace for the financial loss incurred by him.
It is a sad plight in the trial courts that witnesses
who are called through summons or other
processes stand at the door stamp from morning
till evening only to be told at the end of the day
that the case is adjourned to another day. This
primitive practice must be reformed by the
presiding officers of the trial courts and it can be
reformed by everyone provided the presiding
officer concerned has a commitment towards duty.
No sadistic pleasure, in seeing how other persons
summoned by him as witnesses are stranded on
account of the dimension of his judicial powers,
can be persuading factor for granting such
adjournments lavishly, that too in a casual
manner."
In the instant case, first adjournment was granted to postpone
the cross-examination only on the request made by junior counsel that
senior counsel was away to Chandigarh. However, the witness was always
present to be cross-examined.
44. Their Lordships of the Supreme Court in Akil alias Javed vs.
State (NCT of Delhi), (2013) 7 Supreme Court Cases 125 have held that
false / induced portion of testimony when the witness has been won over
may be disregarded more particularly when witness completely has changed
stand in cross-examination and exculpated accused as compared to chief
examination in which said witness had inculpated accused. In this case
cross-examination was held after two days. Their Lordships have held as
under:-
“19. This sequence was consistently maintained by
complainant – PW.17 before the Court which was fully
supported by the other eye-witnesses, namely, PWs.19,
20, 23 and 25. When it came to the question of
identifying the accused, out of the three only two,
appellant and co- accused alone, were apprehended and
proceeded against and they were in Court. Since the
other accused was absconding and continue to abscond
even as on date the trial Court proceeded with the trial.
When it came to the question of such identification, the
judgment of the trial Court as well as that of the High
Court has elaborately considered and found that while
the other witnesses could not identify the appellant and
the other co-accused even in the Court. PW.20 was able
to identify the appellant as the person who attempted to
molest the complainant – PW.17 and when the deceased
raised a protest the appellant shot him and thereafter the
deceased fell down. Unfortunately, on 18.09.2000, the
trial Court adjourned the case for cross-examination of
PW.20 by two months. His cross-examination was
conducted only on 18.11.2000 as the case was
adjourned. The reason for the adjournment was a mere
request on behalf of the appellant that his counsel was
busy in the High Court. The High Court in the impugned
judgment has stated that such a long adjournment
provided scope for maneuvering.
20. In the course of cross-examination PW.20 made a
different statement as regards the identity of the
appellant by stating that he was tutored by Inspector
Rajinder Gautam who met him before his examinationin-
chief. In the light of the said development it was
contended on behalf of the appellant that irrespective of
the crime as described by the eye-witnesses taken place
on the fateful day there was absolutely no legally
acceptable evidence to connect the appellant with the
crime. Learned counsel relied upon Section 155 of the
Evidence Act in support of his submission. The learned
counsel also relied upon the decisions reported in
Paramjeet Singh (supra) and Suraj Mal (supra). We can
also refer to some of the decisions reported in Kunju
Muhammed alias Khumani and another V. State of
Kerala - (2004) 9 SCC 193, Nisar Khan alias Guddu
and others V. State of Uttaranchal - (2006) 9 SCC
386,Mukhtiar Ahmed Ansari V. State (NCT of Delhi) -
(2005) 5 SCC 258 and Raja Ram V. State of Rajasthan -
(2005) 5 SCC 272 in respect of the said proposition of
law.
21. Both the trial Court as well as the High Court
ignored the inconsistency in the statement of PW.20 as
regards the identity of the appellant and proceeded to
rely upon what was stated by him in the chiefexamination
while convicting the appellant and
ultimately imposing him the sentence. It is relevant to
mention that the appellant as well as the co-accused
were charged under Section 392 IPC as well apart from
the charge under Section 302 read with 34 IPC. In fact,
we find from the judgment of the trial Court that specific
charge was framed against the appellant for the offences
under Sections 302 read with 34 and 392 read with
34 IPC. They were charged under Section 354 read with
34 IPC and were acquitted for the said offence.
xxx xxx xxx
27. In the earlier part of our judgment we have
referred to the reliance placed upon by the trial Court as
well as by the High Court on the evidence of PW.20 as
regards the identity of the appellant. Both the Courts
had made a pointer to the adjournment granted at the
instance of the accused for the cross-examination of
PW.20. The chief- examination of PW.20 was recorded
on 18.09.2000 and for the purpose of cross-examination
the case was adjourned by two months and was posted
on 18.11.2000. The reason for adjournment was a
request on behalf of the appellant that his counsel was
busy in the High Court. PW.20 identified the appellant
as the person who attempted to molest the complainant
PW.17 and that when the same was questioned by the
deceased the appellant shot at him who fell down on the
bed and who was later declared dead by the doctors.
However, in the cross- examination PW.20 stated that
the identity of the appellant on the earlier occasion was
at the instance of Inspector Rajinder Gautam who
tutored him to make such a statement.
28. It is also relevant to note that the said witness was
not treated as a hostile witness in spite of diametrically
opposite version stated by him as regards the identity of
the appellant. Nevertheless, both the Courts below
proceeded to hold that the identity made by PW.20
cannot be ignored. By relying upon Section 155 of the
Evidence Act and also the decision reported in
Paramjeet Singh alias Pamma (supra) and Suraj Mal
(supra) learned counsel for the appellant contended that
such a testimony of the witness is wholly unreliable. In
Paramjeet Singh alias Pamma (supra), this Court held
that howsoever gruesome an offence may be and revolt
the human conscience, an accused can be convicted only
on legal evidence and not on surmises and conjecture. In
the decision reported in Suraj Mal (supra) it was held
that:
“2..... where witnesses make two inconsistent
statements in their evidence either at one stage or
at two stages, the testimony of such witnesses
become unreliable and unworthy of credence and
in the absence of special circumstance no
conviction can be based on the evidence of such
witnesses.”
29. Apart from the above decisions relied upon by
learned counsel for the appellant, we ourselves have
noted in the decisions reported in Kunju Muhammed
alias Khumani (supra), Nisar Khan alias Guddu (supra),
wherein this Court has specifically dealt with the issue
as regards hostile witness who was not treated hostile by
the prosecution and now such evidence would support
the defence (i.e.) the benefit of such evidence should go
to the accused and not to the prosecution. In paragraph
16 of the decision reported in Kunju Muhammed alias
Khumani (supra), this Court has held as under:
“16. We are at pains to appreciate this reasoning
of the High Court. This witness has not been
treated hostile by the prosecution, and even then
his evidence helps the defence. We think the
benefit of such evidence should go to the accused
and not to the prosecution. Therefore, the High
Court ought not to have placed any credence on
the evidence of such unreliable witness.”
30. In Nisar Khan alias Guddu (supra) in paragraph 9
this Court has held as under:
“9….We are of the view that no reasonable person
properly instructed in law would allow an
application filed by the accused to recall the
eyewitnesses after a lapse of more than one year
that too after the witnesses were examined, crossexamined
and discharged.”
31. In Mukhtiar Ahmed Ansari (supra), this Court in
paragraphs 29 and 30 dealt with the hostile witness who
was not declared hostile and the extent to which the
version of the said witness can be relied upon as under:
“29. The learned counsel for the appellant also
urged that it was the case of the prosecution that
the police had requisitioned a Maruti car from
Ved Prakash Goel. Ved Prakash Goel had been
examined as a prosecution witness in this case as
PW 1. He, however, did not support the
prosecution. The prosecution never declared PW 1
“hostile”. His evidence did not support the
prosecution. Instead, it supported the defence. The
accused hence can rely on that evidence.
30. A similar question came up for consideration
before this Court in Raja Ram v. State of
Rajasthan. In that case, the evidence of the doctor
who was examined as a prosecution witness
showed that the deceased was being told by one K
that she should implicate the accused or else she
might have to face prosecution. The doctor was
not declared “hostile”. The High Court, however,
convicted the accused. This Court held that it was
open to the defence to rely on the evidence of the
doctor and it was binding on the prosecution.”
32. In the decision reported in Raja Ram (supra) a similar
issue was dealt with in paragraph 9 and was held as under:
“9. But the testimony of PW 8 Dr. Sukhdev Singh,
who is another neighbour, cannot easily be
surmounted by the prosecution. He has testified in
very clear terms that he saw PW 5 making the
deceased believe that unless she puts the blame on
the appellant and his parents she would have to
face the consequences like prosecution
proceedings. It did not occur to the Public
Prosecutor in the trial court to seek permission of
the court to heard (sic declare) PW 8 as a hostile
witness for reasons only known to him. Now, as it
is, the evidence of PW 8 is binding on the
prosecution. Absolutely no reason, much less any
good reason, has been stated by the Division
Bench of the High Court as to how PW 8's
testimony can be sidelined.”
33. We have referred to the above legal position relating
to the extent of reliance that can be placed upon a
hostile witness who was not declared hostile and in the
same breath, the dire need for the Courts dealing with
cases involving such a serious offence to proceed with
the trial commenced on day to day basis in de die in
diem until the trial is concluded. We wish to issue a note
of caution to the trial Court dealing with sessions case
to ensure that there are well settled procedures laid
down under the Code of Criminal Procedure as regards
the manner in which the trial should be conducted in
sessions cases in order to ensure dispensation of justice
without providing any scope for unscrupulous elements
to meddle with the course of justice to achieve some
unlawful advantage. In this respect, it is relevant to refer
to the provisions contained in Chapter XVIII of the
Criminal Procedure Code where under Section 231 it
has been specifically provided that on the date fixed for
examination of witnesses as provided under Section 230,
the Session’s Judge should proceed to take all such
evidence as may be produced in support of the
prosecution and that in his discretion may permit crossexamination
of any witnesses to be deferred until any
other witness or witnesses have been examined or recall
any witness for further cross-examination.
xxx xxx xxx
43. It is unfortunate that in spite of the specific
directions issued by this Court and reminded once again
in Shambhu Nath (supra) such recalcitrant approach
was being made by the trial Court unmindful of the
adverse serious consequences affecting the society at
large flowing therefrom. Therefore, even while disposing
of this appeal by confirming the conviction and sentence
imposed on the appellant by the learned trial Judge, as
confirmed by the impugned judgment of the High Court,
we direct the Registry to forward a copy of this decision
to all the High Courts to specifically follow the
instructions issued by this Court in the decision reported
in Rajdeo Sharma (supra) and reiterated in Shambhu
Nath (supra) by issuing appropriate circular, if already
not issued. If such circular has already been issued, as
directed, ensure that such directions are scrupulously
followed by the trial Courts without providing scope for
any deviation in following the procedure prescribed in
the matter of a trial of sessions cases as well as other
cases as provided under Section 309 of Cr.P.C. In this
respect, the High Courts will also be well advised to use
their machinery in the respective State Judicial Academy
to achieve the desired result. We hope and trust that the
respective High Courts would take serious note of the
above directions issued in the decisions reported in
Rajdeo Sharma (supra) which has been extensively
quoted and reiterated in the subsequent decision of this
Court reported in Shambhu Nath (supra) and comply
with the directions at least in the future years.
44. In the result, while we upheld the conviction and
sentence imposed on the appellant, we issue directions
in the light of the provisions contained in Section
231 read along with Section 309 of Cr.P.C. for the trial
Court to strictly adhere to the procedure prescribed
therein in order to ensure speedy trial of cases and also
rule out the possibility of any maneuvering taking place
by granting undue long adjournment for mere asking.
The appeal stands dismissed.”
45. In the instant case, the cross-examination of PW1 Lakhwinder
Kumar was undertaken after about six months. Three official witnesses also
turned hostile. It is the prime duty of the State Government to protect the
witnesses to undertake fair scientific investigation and fair trial. The
witnesses have a right to be protected by the State Government being an
essential component of criminal justice delivery system. It would be
pertinent to take into consideration the dire need to provide protection to the
witnesses.
46. The Court can take judicial notice of the fact that the trials are
not concluded expeditiously. The accused try to influence the witnesses.
The witnesses are threatened of dire consequences. The witnesses are
always under threat by the accused. In the instant case also, three official
witnesses were declared hostile, since they have not supported the case of
the prosecution in entirety. The cross-examination of PW-1 Lakhwinder
Kumar was done after six months. There is urgent need to provide
protection to the witnesses to enable them to depose fearlessly.
47. Their Lordships of the Hon’ble Supreme Court in State of
Gujarat vs. Anirudhsing & another, 1997 (6) SCC 514, have held that
merely because a witness has turned hostile his evidence cannot be rejected
in its entirety. The Court must carefully analyse his evidence and see
whether that part of the evidence which is consistent with the prosecution
case is acceptable or not. Their Lordships have further held that every
criminal trial is a voyage in quest of truth for public justice to punish the
guilty and restore peace, stability and order in the society. Every citizen who
has knowledge of the commission of cognizable offence has a duty to lay
information before the police and cooperate with the investigating officer
who is enjoined to collect the evidence and if necessary summon the
witnesses to give evidence. He is further enjoined to adopt scientific and all
fair means to unearth the real offender, lay the chargesheet before the court
competent to take cognizance of the offence. It is the salutary duty of every
witness who has the knowledge of the commission of crime, to assist the
State in giving evidence; unfortunately for various reasons, in particular
deterioration in law and order situation and the principle of self-
preservation, many a witness turn hostile and in some instances even direct
witnesses are being liquidated before they are examined by the Court. Their
Lordships have held as under:-
“3. Every criminal trial is a voyage in quest of truth for
public justice to punish the guilty and restore peace,
stability and order in the society. Every citizen who has
knowledge of the commission of cognizable offence has
duty to lay information before the police and co-operate
with the investigating officer who is enjoined to collect
the evidence and if necessary summon the witnesses to
give evidence. He is further enjoined to adopt scientific
and all fair means to unearth, the real offender, lay the
charge-sheet before the Court competent to take
cognizance of the offence. The charge-sheet needs to
contain the facts constituting the offences charged. The
accused is entitled to a fair trial. Every citizen who
assists the investigation is further duty-bound to appear
before the Court of session or competent criminal Court,
tender his ocular evidence as a dutiful and truthful
citizen to unfold the prosecution case as given in his
statement. Any betrayal in that behalf is a step to
stabilize social peace, order and progress.
xxx xxx xxx
29. In view of the above settled legal position, merely
because some of the witnesses have turned hostile, their
ocular evidence recorded by the Court cannot be held to
have been washed off or unavailable to the prosecution.
It is the duty of the Court to carefully analyse the
evidence and reach a conclusion whether that part of the
evidence consistent with the prosecution case, is
acceptable or not. It is the salutary duty of every witness
who has the knowledge of the commission of crime, to
assist the State in giving the evidence; unfortunately for
various reasons, in particular deterioration in law and
order situation and the principle of self-preservation,
many a witness turn hostile and in some instances even
direct witnesses are being liquidated before they are
examined by the Court. In such circumstances, it is high
time that the Law Commission looks into the matter. We
are informed that the Law Commission has
recommended to the Central Government to make
necessary amendments to the Cr. PC. and this aspect of
the matter should also be looked into and proper
principles evolved in this behalf. Suffice it to state that
responsible persons like Sub-Divisional Magistrate
turned hostile to the prosecution and most of the
responsible persons who were present at the time of flag
hoisting ceremony on the Independence Day and in
whose presence a ghastly crime of murdering a sitting
M.L.A. was committed, have derelicted their duty in
assisting the prosecution and to speak the truth relating
to the commission of the crime. However, we cannot shut
our eyes to the realities like the present ghastly crime
and would endeavour to evaluate the evidence on
record. Therefore, it is the duty of the trial Judge or the
appellate Judge to scan the evidence, test it on the anvil
of human conduct and reach a conclusion whether the
evidence brought on record even of the turning hostile
witnesses would be sufficient to bring home the
commission of the crime. Accordingly, we undertake to
examine the evidence in this case.”
48. Their Lordships of the Supreme Court in Swarn Singh vs.
State of Punjab, 2000 (5) SCC 668, and analogous matter, have highlighted
the problems faced by witnesses and have made suggestions for improving
their position in terms of unwarranted adjournments, amenities and diet
money. Their Lordships have held as under:-
“36. A criminal case is built on the edifice of evidence,
evidence that is admissible in law. For that witnesses are
required whether it is direct evidence or circumstantial
evidence. Here are the witnesses who are a harassed lot.
A witness in a criminal trial may come from a far-off
place to find the case adjourned. He has to come to the
court many times and at what cost to his own self and his
family is not difficult to fathom. It has become more or
less a fashion to have a criminal case adjourned again
and again till the witnesses tries and he gives up. It is the
game of unscrupulous lawyers to get adjournments for
one excuse or the other till a witness is won over or is
tried. Not only that a witness is threatened; he is
abducted; he is maimed; he is done away with; or even
bribed. There is no protection for him. In adjourning the
matter without any valid cause a court unwittingly
becomes party to miscarriage of justice. A witness is
then not treated with respect in the court. He is pushed
out from The crowded courtroom by the peon. He waits
for the whole day and then he finds that the matter
adjourned. He has no place to sit and no place even to
have a glass of water. And when he does appear in
Court, he is subjected to unchecked and prolonged
examination and cross examination and finds himself in
a hapless situation. For all these reasons and others a
person abhors becoming a witness. It is the
administration of justice that suffers. Then appropriate
diet money for a witnesses is a far cry. Here again the
process of harassment starts and he decides not to get
the diet money at all. High Courts have to be vigilant in
these matters. Proper diet money must be paid
immediately to the witness (not only when he is examined
but for every adjourned hearing) and even sent to him
and he should not be left to be harassed by the
subordinate staff. If the criminal justice system is to be
put on a proper pedestal, the system cannot be left in the
hands of unscrupulous lawyers and the sluggish State
machinery. Each trial should be properly monitored.
Time has come that all the courts, direct courts,
subordinate courts are linked to the High Court with a
computer and a proper check is made on the
adjournments and recording of evidence. The Bar
Council of India and the State Bar Councils must play
their part and lend their support to put the criminal
system back on its trial. Perjury has also become a way
of life in the law courts. A trial judge knows that the
witness is telling a lie and is going back on his previous
statement, yet he does not wish to punish him or even file
a complaint against him. He is required to sign the
complaint himself which deters him from filing the
complaint. Perhaps law needs amendment to Clause (b)
of Section 340(3) of the Cr.P.C. in this respect as the
High Court can direct any officer to file a complaint. To
get rid of the evil of perjury, the court should resort to
the use of the provisions of law as contained in Chapter
XXVI of the Cr.P.C.”
49. Their Lordships of the Supreme Court in Zahira Habibulla H.
Sheikh & another vs. State of Gujarat & others, 2004 (4) SCC 158, have
held that crimes are public wrongs, in breach and violation of public rights
and duties, which affect the whole community as a community and are
harmful to society in general. Their Lordships have also highlighted the role
of state in witness protection, pressing and urgent need for legislative
measures to protect witnesses. Their Lordships have held as under:-
“30. Right from the inception of the judicial system it
has been accepted that discovery, vindication and
establishment of truth are the main purposes underlying
existence of Courts of justice. The operating principles
for a fair trial permeate the common law in both civil
and criminal contexts. Application of these principles
involve a delicate judicial balancing of competing
interests in a criminal trial, the interests of the accused
and the public and to a great extent that of the victim
have to be weighed not losing sight of the public interest
involved in the prosecution of persons who commit
offences.
xxx xxx xxx
35. This Court has often emphasised that in a criminal
case the fate of the proceedings cannot always be left
entirely in the hands of the parties, crimes being public
wrongs in breach and violation of public rights and
duties, which affect the whole community as a
community and harmful to the society in general. The
concept of fair trial entails familiar triangulation of
interests of the accused, the victim and the society and it
is the community that acts through the State and
prosecuting agencies. Interests of society is not to be
treated completely with disdain and as persona non
grata. Courts have always been considered to have an
over-riding duty to maintain public confidence in the
administration of justice - often referred to as the duty to
vindicate and uphold the 'majesty of the law'. Due
administration of justice has always been viewed as a
continuous process, not confined to determination of the
particular case, protecting its ability to function as a
Court of law in the future as in the case before it. If a
criminal Court is to be an effective instrument in
dispensing justice, the Presiding Judge must cease to be
a spectator and a more recording machine by becoming
a participant in the trial evincing intelligence, active
interest and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the truth,
and administer justice with fairness and impartiality
both to the parties and to the community it serves.
Courts administering criminal justice cannot turn a
blind eye to vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a fair trial is
still possible, except at the risk of undermining the fair
name and standing of the judges as impartial and
independent adjudicators.
36. The principles of rule of law and due process are
closely linked with human rights protection. Such rights
can be protected effectively when a citizen has recourse
to the Courts of law. It has to be unmistakably
understood that a trial which is primarily aimed at
ascertaining truth has to be fair to all concerned. There
can be no analytical, all comprehensive or exhaustive
definition of the concept of a fair trial, and it may have
to be determined in seemingly infinite variety of actual
situations with the ultimate object in mind viz. whether
something that was done or said either before or at the
trial deprived the quality of fairness to a degree where a
miscarriage of justice has resulted. It will not be correct
to say that it is only the accused who must be fairly dealt
with. That would be turning Nelson's eyes to the needs of
the society at large and the victims or their family
members and relatives. Each one has an inbuilt right to
be dealt with fairly in a criminal trial. Denial of a fair
trial is as much injustice to the accused as is to the
victim and the society. Fair trial obviously would mean
a trial before an impartial Judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial means a trial in
which bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is
eliminated. If the witnesses get threatened or are forced
to give false evidence that also would not result in a fair
trial. The failure to hear material witnesses is certainly
denial of fair trial.
xxx xxx xxx
41. "Witnesses" as Benthem said: are the eyes and ears
of justice. Hence, the importance and primacy of the
quality of trial process. If the witness himself is
incapacitated from acting as eyes and ears of justice, the
trial gets putrefied and paralysed, and it no longer can
constitute a fair trial. The incapacitation may be due to
several factors like the witness being not in a position
for reasons beyond control to speak the truth in the
Court or due to negligence or ignorance or some
corrupt collusion. Time has become ripe to act on
account of numerous experiences faced by Courts on
account of frequent turning of witnesses as hostile,
either due to threats, coercion, lures and monetary
considerations at the instance of those in power, their
bench men and hirelings, political clouts and patronage
and innumerable other corrupt practices ingenuously
adopted to smoother and trifle truth and realities coming
out to surface rendering truth and justice, to become
ultimate casualties. Broader public and societal
interests require that the victims of the crime who are
not ordinarily parties to prosecution and the interests of
State represented by their prosecuting agencies do not
suffer even in slow process but irreversibly and
irretrievably, which if allowed would undermine and
destroy public confidence in the administration of
justice, which may ultimately pave way for anarchy,
oppression, and injustice resulting in complete
breakdown and collapse of the efifice of rule of law,
enshrined and jealously guarded and protected by the
Constitution. There comes the need for protecting the
witness. Time has come when serious and undiluted
thoughts are to be bestowed for protecting witnesses so
that ultimate truth is presented before the Court and
justice triumphs and that the trial is not reduced to
mockery. The State has definite role to play in protecting
the witnesses to start with at least in sensitive cases
involving those in power, who has political patronage
and could wield muscle and money power, to avert trial
getting tainted and derailed and truth becoming a
casualty. As a protector of its citizens it has to ensure
that during a trial in court the witness could safely
depose truth without any fear of being haunted by those
against whom he has deposed. Some legislative
enactments like the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (in short the "TADA Act") have
taken note of the reluctance shown by witnesses to
depose against dangerous criminals-terrorists. In a
milder form also the reluctance and the hesitation of
witnesses depose against people with muscle power,
money power or political power has become the order of
the day. If ultimately truth is to be arrived at, the eyes
and ears of justice have to be protected so that the
interests of justice do not get incapacitated in the sense
of making the proceedings before Courts mere mock
trials as are usually seen in movies.
42. Legislative measures to emphasise prohibition
against tampering with witness, victim or informant
have become the imminent and inevitable need of the
day. Conducts which illegitimately affect the
presentation of evidence in proceedings before the
Courts have to be seriously and sternly dealt with. There
should not be any undue anxiety to only protect the
interest of the accused. That would be unfair as noted
above to the needs of the society. On the contrary, the
efforts should be to ensure fair trial where the accused
and the prosecution both get a fair deal. Public interest
in the proper administration of justice must be given as
much importance if not more, as the interests of the
individual accused. In this courts have a vital role to
play.
xxx xxx xxx
49. There is no restriction in the wording of Section 391
either as to the nature of the evidence or that it is to be
taken for the prosecution only or that the provisions of
the Section are only to be invoked when formal proof for
the prosecution is necessary. If the appellate Court
thinks that it is necessary in the interest of justice to take
additional evidence it shall do so. There is nothing in the
provision limiting it to cases where there has been
merely some formal defect. The matter is one of the
discretion of the appellate Court. As re-iterated supra
the ends of justice are not satisfied only when the
accused in a criminal case is acquitted. The community
acting through the State and the public prosecutor is
also entitled to justice. The cause of the community
deserves equal treatment at the hands of the Court in the
discharge of its judicial functions.
xxx xxx xxx
57. This Court in Vineet Narain v. Union of India
1998CriLJ1208 has directed that steps should be taken
immediately for the constitution of able and impartial
agency comprising persons of unimpeachable integrity
to perform functions akin to these of the Director of
Prosecution in England. In the United Kingdom, the
Director of Prosecution was created in 1879. His
appointment is by the Attorney General from amongst
the members of the Bar and he functions under the
supervision of Attorney General. The Director of
Prosecution plays, a vital role in the prosecution system.
He even administers "Witness Protection
Programmes"". Several countries for example Australia,
Canada and USA have even enacted legislation in this
regard. The Witness Protection Programmes are
imperative as well as imminent in the context of
alarming rate of somersaults by witnesses with ulterior
motives and purely for personal gain or fear for
security. It would be a welcome step if something in
those lies are done in our country. That would be a step
in the right direction for a fair trial. Expression of
concern merely in words without really the mind to
concretise it by positive action would be not only useless
but also amounts to betrayal of public confidence and
trust imposed.”
50. Their Lordships of the Supreme Court in Sakshi vs. Union of
India & others, 2004 (5) SCC 518, have held that it is absolutely necessary
that the victim or the witnesses are able to depose about the entire incident
in a free atmosphere without any embarrassment. Their Lordships have held
as under:-
“31. The whole inquiry before a Court being to elicit
the truth, it is absolutely necessary that the victim or the
witnesses are able to depose about the entire incident in
a free atmosphere without any embarrassment. Section
273 Cr.P.C. merely requires the evidence to be taken in
the presence of the accused. The Section, however, does
not say that the evidence should be recorded in such a
manner that the accused should have full view of the
victim or the witnesses. Recording of evidence by way of
video conferencing vis-a-vis Section 273 Cr.P.C. has
been held to be permissible in a recent decision of this
Court in State of Maharashtra v. Dr. Praful B Desai
2003CriLJ2033. There is major difference between
substantive provisions defining crimes and providing
punishment for the same and procedural enactment
laying down the procedure of trial of such offences.
Rules of procedure are hand-maiden of justice and are
meant to advance and not to obstruct the cause of
justice. It is, therefore, permissible for the Court to
expand or enlarge the meanings of such provisions in
order to elicit the truth and do justice with the parties.”
51. Their Lordships of the Hon’ble Supreme Court in Himanshu
Singh Sabharwal vs. State of M.P. & others, AIR 2008 SC 1943, have
held that as a prosecutor of its citizens it has to ensure that during a trial in
Court the witness could safely depose truth without any fear of being
haunted by those against whom he has deposed. Their Lordships have held
as under:-
“13. "Witnesses" as Benthem said: are the eyes and ears
of justice. Hence, the importance and primacy of the
quality of trial process. If the witness himself is
incapacitated from acting as eyes and ears of justice, the
trial gets putrefied and paralysed, and it no longer can
constitute a fair trial. The incapacitation may be due to
several factors like the witness being not in a position
for reasons beyond control to speak the truth in the
Court or due to negligence or ignorance or some
corrupt collusion. Time has become ripe to act on
account of numerous experiences faced by Courts on
account of frequent turning of witnesses as hostile,
either due to threats, coercion, lures and monetary
considerations at the instance of those in power, their
henchmen and hirelings, political clouts and patronage
and innumerable other corrupt practices ingenuously
adopted to smoother and stifle truth and realities coming
out to surface rendering truth and justice, to become
ultimate casualties. Broader public and societal interests
require that the victims of the crime who are not
ordinarily parties to prosecution and the interests of
State represented by their prosecuting agencies do not
suffer even in slow process but irreversibly and
irretrievably, which if allowed would undermine and
destroy public confidence in the administration of
justice, which may ultimately pave way for anarchy,
oppression and injustice resulting in complete
breakdown and collapse of the edifice of rule of law,
enshrined and jealously guarded and protected by the
Constitution. There comes the need for protecting the
witness. Time has come when serious and undiluted
thoughts are to be bestowed for protecting witnesses so
that ultimate truth is presented before the Court and
justice triumphs and the trial is not reduced to mockery.
The State has a definite role to play in protecting the
witnesses, to start with at least in sensitive cases
involving those in power, who has political patronage
and could wield muscle and money power, to avert trial
getting tainted and derailed and truth becoming a
casualty. As a protector of its citizens it has to ensure
that during a trial in Court the witness could safely
depose truth without any fear of being haunted by those
against whom he has deposed. Some legislative
enactments like the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (in short the 'TADA Act') have
taken note of the reluctance shown by witnesses to
depose against dangerous criminals-terrorists. In a
milder form also the reluctance and the hesitation of
witnesses to depose against people with muscle power,
money power or political power has become the order of
the day. If ultimately truth is to be arrived at, the eyes
and ears of justice have to be protected so that the
interests of justice do not get incapacitated in the sense
of making the proceedings before Courts mere mock
trials as are usually seen in movies.
14. Legislative measures to emphasise prohibition
against tampering with witness, victim or informant have
become the imminent and inevitable need of the day.
Conducts which illegitimately affect the presentation of
evidence in proceedings before the Courts have to be
seriously and sternly dealt with. There should not be any
undue anxiety to only protect the interest of the accused.
That would be unfair as noted above to the needs of the
society. On the contrary, the efforts should be to ensure
fair trial where the accused and the prosecution both get
a fair deal. Public interest in the proper administration
of justice must be given as much importance if not more,
as the interests of the individual accused. In this Courts
have a vital role to play.”
52. The Division bench of Delhi High Court in Neelam Katara vs.
Union of India & others, 2003 ILR (2) Delhi 377, has highlighted and
laid emphasis for “Witness Protection Programme”.
53. The “Committee on Reforms of Criminal Justice System”, in its
report Volume-I has made following recommendations for treating the
witnesses with respect and to take steps for his protection as under:-
“11.1 Witness is an important constituent of the
administration of justice. By giving evidence relating to
the commission of the offence he performs a sacred duty
of assisting the court to discover truth. That is why
before giving evidence he either takes oath in the name
of God or makes a solemn affirmation that he will speak
truth, the whole of truth and nothing but truth. The
witness has no stake in the decision of the criminal court
when he is neither the accused nor the victim. The
witness performs an important public duty of assisting
the court in deciding on the guilt or otherwise of the
accused in the case. He sacrifices his time and takes the
trouble to travel all the way to the court to give evidence.
He submits himself to cross-examination and cannot
refuse to answer questions on the ground that the answer
will criminate him. He will incur the displeasure of
persons against whom he gives evidence. He takes all
this trouble and risk not for any personal benefit but to
advance the cause of justice. The witness should be
treated with great respect and consideration as a guest
of honour. But unfortunately quite the reverse is
happening in the courts. When the witness goes to the
court for giving evidence there is hardly any officer of
the court who will be there to receive him, provide a seat
and tell him where the court he is to give evidence is
located or to give him such other assistance as he may
need. In most of the courts there is no designated place
with proper arrangements for seating and resting while
waiting for his turn to be examined as a witness in the
court. Toilet facility, drinking water and other amenities
like food and refreshment are not provided.
11.2 The witness is not adequately compensated for the
amount of money he spends for his traveling and staying
in the town where the court is located. Rates of
allowance fixed long back are quite unrealistic and not
adequate to meet the minimum needs of the witness.
Steps should therefore be taken to review the scales of
traveling and other allowances taking into account the
prevailing cost in the area where the court is located.
What is worse is that even the allowances fixed are not
paid to the witness immediately on the ostensible ground
that funds are not available. There are also complaints
of corrupt officials of the administration who draw the
allowances and do not pay them to the witnesses. This is
an un-pardonable crime against the witnesses. Therefore
effective steps have to be taken to ensure that payment of
the allowances to the witness is neither denied nor
delayed. Full proof arrangements should be made to see
that the allowances are paid immediately. An official
should be designated to attend to the witnesses and be
responsible for paying the allowances promptly.
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. Some times holding of
in-camera proceedings may be sufficient to protect the
interest of the witness. If, however, the circumstances
indicate that the life of any particular witness is in
danger, the court must take such measures as are
necessary to keep the identity of the witness secret and
make arrangements to ensure protection to the witness
without affecting the right of the accused to
crossexamine him. The threat from the accused side may
be before he gives his statement before the police officer
or evidence before the court or after the conclusion of
the trial. There is a growing tendency of subjecting the
witness and his family members to serious threats to life,
abduction or raping, or damaging the witnesses’
property or harming his image and interest in other
ways. The witness has no protection whatsoever. Many
countries in the world have enacted laws for witnesses’
protection. There is no such law in India. Time has come
for a comprehensive law being enacted for protection of
the witness and members of his family.
11.4 The witness also suffers in the court in various
other ways. When he comes to the court to give evidence
he is often told that the case has been adjourned and is
asked to come back on another day. When a case is
adjourned, the witnesses in attendance are quite often
not paid the allowances. The witnesses should not be
punished by denying him reimbursement of the expenses
for no fault of his. Steps should therefore be taken to
ensure that the witnesses are paid allowances on the
same day if the case is adjourned. Quite often more than
one witnesses is summoned to prove the same point,
much of it being of a formal character. The prosecutor
may pay attention to reduce duplication of evidence
resulting in unnecessary waste of time of courts and
expenses. The evidence of Medical witnesses,
Government scientific experts and Officers of mint
contemplated by Sections 291, 292 and 293 of the Code
shall be tendered as evidence in the form of Affidavits
and the challenge to the same by the opposite party shall
be by means of a counter Affidavit. The Court may
permit an Affidavit in reply being filed by these experts.
If the Court is satisfied that in the interest of justice,
examination of these witnesses is necessary, it shall as
far as possible be done through Video Conferencing. It is
only if it is practicable that the witnesses may be
summoned for giving evidence before the Court.
Evidence of such witnesses should be recorded on
priority basis and summoning such experts again should
be avoided. The DNA experts should be included in sub
section 4 of section 293 of the Code. This repeats again
and again. No concern is shown for the valuable time of
the witness and the trouble he takes to come to the court
again and again to give evidence. Therefore there is
need to infuse sensitivity in the minds of the court and
the lawyers about the hardship and inconvenience which
the witness suffers when the case is adjourned. Therefore
only such number of cases should be listed which can be
taken on that particular day so that the witness is not
required to return only to come again for giving
evidence. The directions given from time to time that the
trial should proceed on day to day basis are not being
followed. Time has now come to hold the Judge
accountable for such lapses. Appropriate remedial
measures through training and supervision may have to
be taken in this behalf by the respective High Courts.
11.5 The next aspect is about the way the witness is
treated during trial. As already stated the witness is
entitled to be treated with courtesy when he arrives for
giving evidence. Similarly due courtesy should be shown
to him when he enters the court hall for giving evidence.
The present practice is to make the witness stand and
give his evidence from the place designated for that
purpose. Comfort, convenience and dignity of the
witness should be the concern of the Judge. In the
opinion of the Committee the present practice must be
changed. A chair should be provided for the witness and
requested to take his seat for giving evidence. The
lawyer for the defence in order to demonstrate that the
witness is not truthful or a reliable person would ask all
sorts of questions to him. When the questions are likely
to annoy, insult or threaten the witness, the Judge does
not object and often sits as a mute spectator. It is high
time the Judges are sensitised about the responsibility to
regulate cross examination so as to ensure that the
witness is not ill-treated affecting his dignity and
honour. Therefore the High Courts should take measure
through training and supervision to sensitize the Judges
of their responsibility to protect the rights of the
witnesses.
11.6 So far as witness is concerned, it is his primary duty
to give true evidence of what he knows. Unfortunately
this is not happening and the problem of perjury is
growing.”
54. The Law Commissions of India have also dealt with separately
the issue of witness identity and protection. The Law Commission has also
dealt with this delicate issue in its 14th Report as under:-
“4.1 In the 14th Report of the Law Commission (1958),
‘witness protection’ was considered from a different
angle. The Report referred to inadequate arrangements
for witnesses in the Courthouse, the scales of traveling
allowance and daily batta (allowance) paid for witnesses
for attending the Court in response to summons from the
Court. This aspect too is important if one has to keep in
mind the enormous increase in the expense involved and
the long hours of waiting in Court with tension and
attending numerous adjournments. Here the question of
giving due respect to the witness’s convenience, comfort
and compensation for his sparing valuable time is
involved. If the witness is not taken care of, he or she is
likely to develop an attitude of indifference to the
question of bringing the offender to justice.
4.2 Between 1958 and 2004, there has been a total
change in the crime scene, in as much as, not only crime
has increased and cases of convictions have drastically
fallen, but there is more sophistication in the manner of
committing offences for, today, the offender too has the
advantages of advances in technology and science.
There are now more hostile witnesses than before and
the witnesses are provided allurements or are tampered
with or purchased and if they remain firm, they are
pressurized or threatened or even eliminated. Rape and
sexual offence cases appear to be the worst affected by
these obnoxious methods.
Fourth Report of the National Police Commission
(1980): handicaps of witnesses:
In June 1980, in the Fourth Report of the
National Police Commission, certain
inconveniences and handicaps from which
witnesses suffer have been referred to. The
Commission again referred to the inconveniences
and harassment caused to witnesses in attending
courts. The Commission referred to the contents of
a letter received from a senior District and
Sessions Judge to the following effect:
“A prisoner suffers from some act or omission but
a witness suffers for no fault of his own. All his
troubles arise because he is unfortunate enough to
be on the spot when the crime is being committed
and at the same time ‘foolish’ enough to remain
there till the arrival of the police.”
The Police Commission also referred to the
meager daily allowance payable to witnesses for
appearance in the Courts. It referred to a sample survey
carried out in 18 Magistrates’ Courts in one State, which
revealed that out of 96,815 witnesses who attended the
Courts during the particular period, only 6697 were
paid some allowance and even for such payment, an
elaborate procedure had to be gone through.
4.4 154th Report of the Law Commission (1996): Lack of
facilities and wrath of accused referred:
In the 154th Report of the Commission
(1996), in Chapter X, the Commission, while
dealing with ‘Protection and Facilities to
Witnesses’, referred to the 14th Report of the Law
Commission and the Report of the National Police
Commission and conceded that there was ‘plenty
of justification for the reluctance of witnesses to
come forward to attend Court promptly in
obedience to the summons”. It was stated that the
plight of witnesses appearing on behalf of the
State was pitiable not only because of lack of
proper facilities and conveniences but also
because witnesses have to incur the wrath of the
accused, particularly that of hardened criminals,
which can result in their life falling into great
peril. The Law Commission recommended, inter
alia, as follows:
“6. We recommend that the allowances payable to
the witnesses for their attendance in courts should
be fixed on a realistic basis and that payment
should be effected through a simple procedure
which would avoid delay and inconvenience. …
Adequate facilities should be provided in the court
premises for their stay. The treatment afforded to
them right from the stage of investigation upto the
stage of conclusion of the trial should be in a
fitting manner giving them due respect and
removing all causes which contribute to any
anguish on their part. Necessary confidence has to
be created in the minds of the witnesses that they
would be protected from the wrath of the accused
in any eventuality.
7. Listing of the cases should be done in such a
way that the witnesses who are summoned are
examined on the day they are summoned and
adjournments should be avoided meticulously. …
The courts also should proceed with trial on dayto-
day basis and the listing of the cases should be
one those lines. The High Courts should issue
necessary circulars to all the criminal courts
giving guidelines for listing of cases.”
The following points emerge from the above
recommendations:
(a) Realistic allowance should be paid to
witnesses for their attendance in Courts and there
should be simplification of the procedure for such
payment.
(b) Adequate facilities should be provided to
witnesses for their stay in the Court premises.
Witnesses must be given due respect and it is also
necessary that efforts are made to remove all
reasonable causes for their anguish.
(c) Witnesses should be protected from the wrath
of the accused in any eventuality.
(d) Witnesses should be examined on the day they
are summoned and the examination should
proceed on a day-today basis.
4.5 172nd Report of the Law Commission (2000) :
Reference by Supreme Court to the Law
Commission: screen technique:
In March 2000, the Law Commission
submitted its 172nd Report on ‘Review of Rape
Laws’. The Law Commission took the subject on a
request made by the Supreme Court of India (vide
its order dated 9th August, 1999, passed in
Criminal Writ Petition (No. 33 of 1997), Sakshi vs.
Union of India.
The petitioner ‘Sakshi’, an organization,
interested in the issues concerning women, filed
this petition, seeking directions for amendment of
the definition of the expression ‘sexual
intercourse’, as contained in section 375 of the
IPC. The Supreme Court requested the Law
Commission ‘to examine the issues submitted by
the petitioners and examine the feasibility of
making recommendations for amendments of the
Indian Penal Code or to deal with the same in any
other manner so as to plug the loopholes’.
The Law Commission discussed the issues
raised by the petitioner with Petitioner NGO and
other women organizations. The Commission also
requested ‘Sakshi’ and other organizations to
submit their written suggestions for amendment of
procedural laws as well as the substantial law.
Accordingly, these women organizations
submitted their suggestions for amendment of
Cr.P.C. and the Evidence Act and also I.P.C. One
of the views put forward by the organizations was
that a minor complainant of sexual assault shall
not have to give his/her oral evidence in the
presence of the accused, as this will traumatic to
the minor. It was suggested that appropriate
changes in the law should be made for giving
effect to this provision.
It was further suggested that a minor’s
testimony in a case of child sexual abuse should be
recorded at the earliest possible opportunity in the
presence of a judge and the child-support person,
which may include a family friend, relative or
social worker whom the minor trusts. For the
purpose of proper implementation of the above
suggestion, it was urged that the court should take
steps to ensure that at least one of the following
methods is adopted:
(i) permitting use of a video-taped interview of the
child’s statement by the judge in the presence of a
child support person;
(ii) allowing a child to testify via closed circuit
television or from behind a screen to obtain a full
and candid account of the acts complained of;
(iii) the cross examination of the minor should
only be carried out by the judge based on written
questions submitted by the defence upon perusal of
the testimony of the minor;
(iv) whenever a child is required to give testimony,
sufficient breaks shall be given as and when
required by the child.
The Commission considered the above
suggestions along with other issues raised and the
order of the Supreme Court and gave its 172nd
Report on 25th March, 2000. In respect of the
suggestion that a minor who has been assaulted
sexually, should not be required to give his/her
evidence in the presence of the accused and he or
she may be allowed to testify behind the screen,
the Law Commission referred to section 273 of the
Cr.P.C., which requires that ‘except as otherwise
expressly provided, all evidence taken in the
course of a trial or other proceeding, shall be
taken in the presence of the accused or when his
personal attendance is dispensed with, in the
presence of his pleader’. The Law Commission
took the view that his general principle, which is
founded upon natural justice, should not be done
away with altogether in trials and enquiries
concerning sexual offence. However, in order to
protect the child witness the Commission
recommended that it may be open to the
prosecution to request the Court to provide a
screen in such a manner that the victim does not
see the accused, while at the same time providing
an opportunity to the accused to listen to the
testimony of the victim and give appropriate
instructions to his advocate for an effective
crossexamination. Accordingly, the Law
Commission in para 6.1 of its 172nd Report
recommended for insertion of a proviso to section
273 of the Cr.P.C. 1973 to the following effect:
“Provided that where the evidence of a person
below sixteen years who is alleged to have been
subjected to sexual assault or any other sexual
offence, is to be recorded, the Court may, take
appropriate measures to ensure that such person
is not confronted by the accused while at the same
time ensuring the right of cross-examination of the
accused”.
In respect of other suggestions mentioned
above, made by Sakshi organization, the Law
Commission expressed its view that these
suggestions were impracticable and could not be
accepted.
178th Report of the Law Commission
(2001): preventing witnesses turning hostile:
In December, 2001, the Commission gave its
178th Report for amending various statutes, civil
and criminal. That Report dealt with hostile
witnesses and the precautions the Police should
take at the stage of investigation to prevent
prevarication by witnesses when they are
examined later at the trial. The Commission
recommended three alternatives, (in modification
of the two alternatives suggested in the 154th
Report). They are as follows:
“1. The insertion of sub-section (1A) in Section
164 of the Code of Criminal Procedure (as
suggested in the 154th Report) so that the
statements of material witnesses are recorded in
the presence of Magistrates. [This would require
the recruitment of a large number of Magistrates].
2. Introducing certain checks so that witnesses do
not turn hostile, such as taking the signature of a
witness on his police statement and sending it to
an appropriate Magistrate and a senior police
officer.
3. In all serious offences, punishable with ten or
more years of imprisonment, the statement of
important witnesses should be recorded, at the
earliest, by a Magistrate under Section 164 of the
Code of Criminal Procedure, 1973. For less
serious offences, the second alternative (with some
modifications) was found viable.”
4.6 However, it is to be noted that the Law
Commission, in the above Report, did not suggest
any measures for the physical protection of
witnesses from the ‘wrath of the accused’ nor deal
with the question whether the identity of witnesses
can be kept secret and if so, in what manner the
Court could keep the identity secret and yet
comply with the requirements of enabling the
accused or his counsel to effectively cross examine
the witness so that the fairness of the judicial
procedure is not sacrificed.
4.7 The Criminal Law (Amendment) Bill,
2003: preventing witnesses turning hostile: In the
Criminal Law (Amendment) Bill, 2003, introduced
in the Rajya Sabha in August, 2003, the above
recommendations have been accepted by further
modifying the recommendation (3) of recording
statement before a Magistrate to apply where the
sentence for the offence could be seven years or
more. A further provision is being proposed for
summary punishment of the witness by the same
Court if the witness goes back on his earlier
statement recorded before the Magistrate. Another
provision is also being made to find out whether
the witness is going back on his earlier statement
because of inducement or pressure or threats or
intimidation.
4.8 Thus, the above analysis of the various
recommendations of the Law Commission made
from time to time, including the 178th Report
shows that they do not address the issue of
‘protection’ and ‘anonymity’ of witnesses or to the
procedure that has to be followed for balancing
the rights of the witness on the one hand and the
rights of the accused to a fair trial. In the absence
of such a procedural law, the Supreme Court has
had to step in on the judicial side in recent case to
give various directions and these judgments will
be discussed in the next chapter, Chapter V.
4.9 It is, therefore, proposed to deal with the
above gaps in the law, in detail in the
Consultation Paper.
55. The witnesses are the integral part of the administration of
justice. They have to be given utmost respect and honour. The witnesses are
not adequately compensated for the amount they spent from their pocket.
They have to travel long distances. There are no separate rooms for them to
sit. They are entitled to reasonable realistic allowances for boarding and
lodging at the expenses of State Government, if they have to stay back in
the town. There is constant threat perception to the witnesses and their
families. The witnesses have to depose at times against the gangsters,
terrorists, smugglers, muscle men and persons involved in heinous crimes.
The threat perception at times keeps the witness away from the courts. The
threat perception persists during the course of investigation, during trial and
also after the conclusion of trial. Unnecessary adjournments are given by the
trial courts prolonging the trial and causing mental agony to the witnesses.
The trial should be held on day-to-day basis. The witnesses are required to
be shown utmost respect and their dignity has to be maintained during the
course of investigation and at the time of trial. The entire system is required
to be sensitized. Since the witnesses are under constant threat, there is an
increasing tendency of turning them hostile.
56. According to the 4th report of the National Police Commission,
1980, the Police Commission has referred to the meager daily allowances
payable to witnesses for appearance in the Courts. It referred to a sample
survey carried out in 18 Magistrates’ Courts in one State, which revealed
that out of 96,815 witnesses, who attended the Courts during the particular
period, only 6697 were paid some allowance and even for such payment, an
elaborate procedure had to be gone through. The 154th Report of the
Commission, 1996, as discussed hereinabove, has highlighted the
“Protection and Facilities to Witnesses.”
57. The conviction rate in India is lowest. It is not more than 40%.
In advance countries, like in Japan, the conviction rate is about 98%.
58. The prosecution has proved the case against the appellant
beyond any reasonable doubt. The trial Court has convicted the appellant
under Section 302 IPC read with Section 34 IPC as per the zimni order.
However, in the judgment, Section 34 IPC was inadvertently omitted.
Accordingly, the appellant would stand convicted under Section 302 read
with Section 34 IPC.
59. Accordingly the appeal is dismissed.
60. However, before parting with the judgment, it is observed that
the official witnesses PW-10 HC Jagjit Singh, PW-11 HC Gurjit Singh and
PW-12 HC Sunil Kumar have not supported the case of prosecution in
entirety. They were declared hostile. They were present on the spot. One of
them, PW-10 Jagjit Singh was also injured. He proclaimed falsely that he
became unconscious, thus, could not see anything. The tendency on the part
of the official witnesses turning hostile is alarming. It is expected from
official witnesses to support the case of the prosecution. The trial Court
instead of resorting to conclude the trial on day-to-day basis, has given
inordinate period of six months for recording cross-examination of PW-1
Balwinder Kumar. The result was that he was won over along with PW-2
Sukhwinder Singh.
61. Their Lordships of the Supreme Court in Writ petition
(Criminal) No.156 of 2016 titled Mahender Chawla and others vs. Union
of India and others, have directed the Union of India as well as States and
Union Territories to enforce the Witness Protection Scheme, 2018 in letter
and spirit vide judgment dated 05.12.2018. The Witness Protection
Scheme, 2018 as quoted by the Hon'ble Supreme Court in para 25 of the
judgment, reads as under:-
“ 1. SHORT TITLE AND COMMENCEMENT:
(a) The Scheme shall be called “Witness Protection Scheme, 2018”
(b) It shall come into force from the date of Notification.
Part I
2. DEFINITIONS:
(a) "Code" means the Code of Criminal Procedure, 1973 (2 of
1974);
(b) “Concealment of Identity of Witness” means and includes any
condition prohibiting publication or revealing, in any manner,
directly or indirectly, of the name, address and other particulars
which may lead to the identification of the witness during
investigation, trial and post-trial stage; (c) “Competent Authority”
means a Standing Committee in each District chaired by District and
Sessions Judge with Head of the Police in the District as Member
and Head of the Prosecution in the District as its Member Secretary.
(d) “Family Member” includes parents/guardian, spouse, live-in
partner, siblings, children,grandchildren of the witness;
(e) "Form" means “Witness Protection Application Form” appended
to this Scheme;
(f) “In Camera Proceedings” means proceedings wherein the
Competent Authority/Court allows only those persons who are
necessary to be present while hearing and deciding the witness
protection application or deposing in the court;
(g) “Live Link” means and include a live video link or other such
arrangement whereby a witness, while not being physically present in
the courtroom for deposing in the matter or interacting with the
Competent Authority;
(h) “Witness Protection Measures” means measures spelt out in
Clause 7, Part-III, Part-IV and Part V of the Scheme.
(i) "Offence" means those offences which are punishable with death
or life imprisonment or an imprisonment up to seven years and above
and also offences punishable punishable under Section 354, 354A,
354B, 354C, 354D and 509 of IPC.
(j) "Threat Analysis Report" means a detailed report prepared and
submitted by the Head of the Police in the District Investigating the
case with regard to the seriousness and credibility of the threat
perception to the witness or his family members. It shall contain
specific details about the nature of threats by the witness or his
family to their life, reputation or property apart from analyzing the
extent, the or persons making the threat, have the intent, motive and
resources to implement the threats.
It shall also categorize the threat perception apart from suggesting
the specific witness protection measures which deserves to be taken
in the matter;
(k) “Witness” means any person, who posses information or
document about any offence;
(l) “Witness Protection Application” means an application moved by
the witness in the prescribed form before a Competent Authority for
seeking Witness Protection Order. It can be moved by the witness,
his family member, his duly engaged counsel or
IO/SHO/SDPO/Prison SP concerned and the same shall preferably be
got forwarded through the Prosecutor concerned;
(m) “Witness Protection Fund” means the fund created for bearing
the expenses incurred during the implementation of Witness
Protection Order passed by the Competent Authority under this
scheme;
(n) “Witness Protection Order” means an order passed by the
Competent Authority detailing the witness protection measures to be
taken
(o) “Witness Protection Cell” means a dedicated Cell of State/UT
Police or Central Police Agencies assigned the duty to implement the
witness protection order.
Part II
3. CATEGORIES OF WITNESS AS PER THREAT
PERCEPTION:
Category ‘A’ : Where the threat extends to life of witness or his
family members, during investigation/trial or thereafter.
Category ‘B’ : Where the threat extends to safety, reputation or
property of the witness or his family members, during the
investigation/trial or thereafter.
Category ‘C’ : Where the threat is moderate and extends to
harassment or intimidation of the witness or his family member's,
reputation or property, during the investigation/trial or thereafter.
4. STATE WITNESS PROTECTION FUND:
(a) There shall be a Fund, namely, the Witness Protection Fund from
which the expenses incurred during the implementation of Witness
Protection Order passed by the Competent Authority and other
related expenditure, shall be met.
(b) The Witness Protection Fund shall comprise the following:-
i. Budgetary allocation made in the Annual Budget by the
State Government;
ii. Receipt of amount of costs imposed/ordered to be deposited
by the courts/tribunals in the Witness Protection Fund;
iii. Donations/contributions from Charitable Institutions/
Organizations and individuals permitted by Central/State
Governments.
iv. Funds contributed under Corporate Social Responsibility.
(c) The said Fund shall be operated by the Department/Ministry of
Home under State/UT Government.
5. FILING OF APPLICATION BEFORE COMPETENT
AUTHORITY:
The application for seeking protection order under this scheme can
be filed in the prescribed form before the Competent Authority of the
concerned District where the offence is committed, through its
Member Secretary along with supporting documents, if any.
6. PROCEDURE FOR PROCESSING THE APPLICATION:
(a) As and when an application is received by the Member Secretary
of the Competent Authority, in the prescribed form, it shall forthwith
pass an order for calling for the Threat Analysis Report from the
ACP/DSP in charge of the concerned Police Sub-Division.
(b) Depending upon the urgency in the matter owing to imminent
threat, the Competent Authority can pass orders for interim
protection of the witness or his family members during the pendency
of the application.
(c) The Threat Analysis Report shall be prepared expeditiously while
maintaining full confidentiality and it shall reach the Competent
Authority within five working days of receipt of the order.
(d) The Threat Analysis Report shall categorize the threat perception
and also include suggestive protection measures for providing
adequate protection to the witness or his family.
(e) While processing the application for witness protection, the
Competent Authority shall also interact preferably in person and if
not possible through electronic means with the witness and/or his
family members/employers or any other person deemed fit so as to
ascertain the witness protection needs of the witness.
(f) All the hearings on Witness Protection Application shall be held
in-camera by the Competent Authority while maintaining full
confidentiality.
(g) An application shall be disposed of within five working days of
receipt of Threat Analysis Report from the Police authorities.
(h) The Witness Protection Order passed by the Competent Authority
shall be implemented by the Witness Protection Cell of the State/UT
or the Trial Court, as the case may be. Overall responsibility of
implementation of all witness protection orders passed by the
Competent Authority shall lie on the Head of the Police in the
State/UT.
However the Witness Protection Order passed by the Competent
Authority for change of identity and/or relocation shall be
implemented by the Department of Home of the concerned State/UT.
(i) Upon passing of a Witness Protection Order, the Witness
Protection Cell shall file a monthly follow-up report before the
Competent Authority.
(j) In case, the Competent Authority finds that there is a need to
revise the Witness Protection Order or an application is moved in this
regard, and upon completion of trial, a fresh Threat Analysis Report
shall be called from the ACP/DSP in charge of the concerned Police
Sub Division.
7. TYPES OF PROTECTION MEASURES:
The witness protection measures ordered shall be proportionate to the
threat and shall be for a specific duration not exceeding three months
at a time. They may include:
(a) Ensuring that witness and accused do not come face to face
during investigation or trial;
(b) Monitoring of mail and telephone calls;
(c) Arrangement with the telephone company to change the witness’s
telephone number or assign him or her an unlisted telephone number;
(d) Installation of security devices in the witness’s home such as
security doors, CCTV, alarms, fencing etc;
(e) Concealment of identity of the witness by referring to him/her
with the changed name or alphabet;
(f) Emergency contact persons for the witness;
(g) Close protection, regular patrolling around the witness’s house;
(h) Temporary change of residence to a relative’s house or a nearby
town;
(i) Escort to and from the court and provision of Government vehicle
or a State funded conveyance for the date of hearing;
(j) Holding of in-camera trials;
(k) Allowing a support person to remain present during recording of
statement and deposition;
(l) Usage of specially designed vulnerable witness court rooms which
have special arrangements like live video links, one way mirrors and
screens apart from separate passages for witnesses and accused, with
option to modify the image of face of the witness and to modify the
audio feed of the witness’ voice, so that he/she is not identifiable;
(m) Ensuring expeditious recording of deposition during trial on day
to day basis without adjournments;
(n) Awarding time to time periodical financial aids/grants to the
witness from Witness Protection Fund for the purpose of re-location,
sustenance or starting a new vocation/profession, if desired;
(o) Any other form of protection measures considered necessary.
8. MONITORING AND REVIEW:
Once the protection order is passed, the Competent Authority would
monitor its implementation and can review the same in terms of
follow-up reports received in the matter. However, the Competent
Authority shall review the Witness Protection Order on a quarterly
basis based on the monthly follow-up report submitted by the Witness Protection Cell.
Part III
9. PROTECTION OF IDENTITY :-
During the course of investigation or trial of any offence, an
application for seeking identity protection can be filed in the
prescribed form before the Competent Authority through its Member
Secretary.
Upon receipt of the application, the Member Secretary of the
Competent Authority shall call for the Threat Analysis Report. The
Competent Authority shall examine the witness or his family
members or any other person it deem fit to ascertain whether there is
necessity to pass an identity protection order.
During the course of hearing of the application, the identity of the
witness shall not be revealed to any other person, which is likely to
lead to the witness identification. The Competent Authority can
thereafter, dispose of the application as per material available on
record.
Once, an order for protection of identity of witness is passed by the
Competent Authority, it shall be the responsibility of Witness
Protection Cell to ensure that identity of such witness/his or her
family members including name/parentage/occupation/address/digital
footprints are fully protected.
As long as identity of any witness is protected under an order of the
Competent Authority, the Witness Protection Cell shall provide
details of persons who can be contacted by the witness in case of
emergency.
Part IV
10. CHANGE OF IDENTITY:-
In appropriate cases, where there is a request from the witness for
change of identity and based on the Threat Analysis Report, a
decision can be taken for conferring a new identity to the witness by
the Competent Authority.
Conferring new identities includes new name/profession/parentage
and providing supporting documents acceptable by the Government
Agencies. The new identities should not deprive the witness from
existing educational/ professional/property rights.
Part V
11. RELOCATION OF WITNESS:
In appropriate cases, where there is a request from the witness for
relocation and based on the Threat Analysis Report, a decision can be
taken for relocation of the witness by the Competent Authority.
The Competent Authority may pass an order for witness relocation to
a safer place within the State/UT or territory of the Indian Union
keeping in view the safety, welfare and well being of the witness.
The expenses shall be borne by the Witness Protection Fund.
Part VI
12. WITNESSES TO BE APPRISED OF THE SCHEME:
Every state shall give wide publicity to this Scheme. The IO and the
Court shall inform witnesses about the existence of "Witness
Protection Scheme" and its salient features.
13. CONFIDENTIALITY AND PRESERVATION OF
RECORDS:
All stakeholders including the Police, the Prosecution Department,
Court Staff, Lawyers from both sides shall maintain full
confidentiality and shall ensure that under no circumstance, any
record, document or information in relation to the proceedings under
this scheme shall be shared with any person in any manner except
with the Trial Court/Appellate Court and that too, on a written order.
All the records pertaining to proceedings under this scheme shall be
preserved till such time the related trial or appeal thereof is pending
before a Court of Law. After one year of disposal of the last Court
proceedings, the hard copy of the records can be weeded out by the
Competent Authority after preserving the scanned soft copies of the
same.
14. RECOVERY OF EXPENSES:
In case the witness has lodged a false complaint, the Home
Department of the concerned Government can initiate proceedings
for recovery of the expenditure incurred from the Witness Protection
Fund.
15. REVIEW:
In case the witness or the police authorities are aggrieved by the
decisions of the Competent Authority, a review application may be
filed within 15 days of passing of the orders by the Competent Authority.
Witness Protection Scheme, 2018
Witness Protection Application
under
Witness Protection Scheme, 2018
Before, (To be filed in duplicate)
The Competent Authority,
District................................................................
Application for:
1. Witness Protection
2. Witness Identity Protection
3. New Identity
4. Witness Relocation
1. Particulars of the Witness (Fill in Capital):
1) Name ---------------------------
2) Age ---------------------------
3) Gender (Male/Female/Other) ---------------------------
4) Father's/Mother’s Name ---------------------------
5) Residential Address ---------------------------
6) Name and other details of family
members of the witness who are
receiving or perceiving threats ---------------------------
7) Contact details (Mobile/e-mail) ---------------------------
2. Particulars of Criminal matter:
1) FIR No. ---------------------------
2) Under Section ---------------------------
3) Police Station ---------------------------
4) District ---------------------------
5) D.D. No. (in case
FIR not yet registered) ---------------------------
6) Cr.Case No. (in case of
private complaint) ---------------------------
3. Particulars of the Accused (if available/known):
1) Name ---------------------------
2) Address ---------------------------
3) Phone No. ---------------------------
4) Email id ---------------------------
4. Name & other particulars of the person giving/suspected of giving
threats ---------------------------
5. Nature of threat perception. Please
give brief details of threat received
in the matter with specific date,
place, mode and words used ---------------------------
6. Type of witness protection measures
prayed by/for the witness ---------------------------
7. Details of Interim / urgent
Witness Protection needs,
if required ---------------------------
• Applicant/witness can use extra sheets for giving additional
information.
_____________________
(Full Name with signature)
Date: ..............................
Place:...........................…
UNDERTAKING
1. I undertake that I shall fully cooperate with the competent
authority and the Department of Home of the State and Witness
Protection Cell.
2. I certify that the information provided by me in this application is
true and correct to my best knowledge and belief.
3. I understand that in case, information given by me in this
application is found to be false, competent authority under the
scheme reserves the right to recover the expenses incurred on me
from out of the Witness Protection Fund.
_____________________
(Full Name with signature)
Date: ..............................
Place:...........................…”
62. Accordingly, we issue following mandatory directions to
ensure fair and expeditious enquiry, investigation and trials:-
1. All the trial Courts through State of Punjab are directed
to comply with mandate of Section 309 Cr.P.C. and to examine
the eye witnesses expeditiously on day-to-day basis /
continuous basis. Adjournments for next day shall be granted
only after recording cogent, convincing and special reasons.
2. The Reporting Officers are directed to enter adverse
remarks in Annual Confidential Reports of the Judicial Officers
who do not hold the trial on day-to-day basis.
3. The State of Punjab is directed to make suitable
amendments in the Indian Penal Code and the Code of Criminal
Procedure to punish the persons inducing, threatening and
pressurizing any witness to give false statement, within three
months.
4. The State of Punjab is also directed that all the witnesses
should be paid reasonable amount as travelling allowance on
the date of recording of their statement and if the statement
spills over to the next date, the boarding and lodging of the
witnesses should be provided by the State Government from
State Exchequer.
5. The State of Punjab is also directed that the material
witnesses in heinous and sensitive matters are insured on shortterm
or long term basis to enable them to fearlessly testify
before the Court and also protecting their identity, changing
their identity and relocating the witnesses.
6. The State of Punjab should install security devices in the
witness's home such as security door, CCTVs, alarms, fencing
etc.
7. The Police must have emergency contact numbers of witnesses, close protection for the witnesses, regular patrolling
around the witness's house, escort to the Court and from the
Court to their home with provision of Government vehicle or a
State funded conveyance on the date of hearing.
8. All the investigating officers in the State of Punjab are
directed to record the statement under Section 161 Cr.P.C. by
audio, video, and electronic means forthwith, as per Section
161 Cr.P.C.
9. The State of Punjab is also directed to initiate
disciplinary proceedings against PW-10 HC Jagjit Singh,
PW-11 HC Gurjit Singh, PW-12 HC Sunil Kumar within three
months, for dereliction of their duties for not supporting the
case of prosecution though they were on the spot.
10. The Secretary Home, State of Punjab shall be personally
responsible to implement the directions issued hereinabove.
(RAJIV SHARMA)
JUDGE
(HARINDER SINGH SIDHU)
JUDGE
May 28, 2019
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COMMENTS