9911796707
TMI Blog2000 (12) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant approached Billor Singh (PW5), Niranjan Singh (PW6) and Joginder Singh (PW7) making before them the extra judicial confession and requesting them to help him. Jarnail Singh (PW2) and Billor Singh (PW5) thereafter called Amar Singh, Panch. Jarnail Singh lodged the First Information Report (Exhibit P-2) at 12.30 p.m. at Police Station, Karanpur which was at a distance of 8 kilometers from the place of occurrence. The appellant was arrested on the same day. He made the disclosure statement (Exhibit P21) consequent to which Kassi, the weapon of offence (Exhibit P19), was recovered. Again on 12.7.1976 the appellant made another disclosure statement in consequence of which a Chadar (sheet) (Exhibit P-12) stained with blood was recovered vide (Exhibit P-22). The appellant was committed to the Court of Sessions on 10.2.1977 for standing his trial under Section 302 IPC. After the prosecution produced 12 witnesses, the trial court vide its judgment dated 9.8.1978 held the appellant guilty and convicted him under Section 302 IPC. On the facts and circumstances of the case the appellant was awarded life imprisonment. The appeal filed by the appellant against the judgment of the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him the appellant has wrongly been roped into the charge of murder of his father by the prosecution witnesses with oblique motive of usurping the property left by the deceased. It is contended that as the main witnesses have turned hostile, the conviction based upon their testimony is not justified. It is settled position of law that extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [1954 SCR 1098], this Court again in Maghar Singh v. State of Punjab [AIR 1975 SC 1320] held that the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses are closely related to the appellant in whom, under the normal circumstances, he would have confided hoping help, protection and being safeguarded. The confession has been made instantaneously immediately after the occurrence and is not alleged to have been procured under any undue influence, coercion or pressure. Though the appellant expected a favour from the witnesses, yet none of them is stated to have promised to favour him in case he made a truthful statement regarding the occurrence. Except the alleged usurption of property of the deceased by PWs 6 and 7, there is no other suggestion which could tend to show that their evidence is tainted and that the extra judicial confession was not voluntarily made by the appellant. Assailing the finding of the High Court, the learned counsel appearing for the appellant has submitted that since PWs 2, 5 and 7 have been declared hostile and PW6 is an interested witness, the extra judicial confession attributed to the appellant cannot be held to have been by the prosecution as a fact. It is true that PW5 has been declared hostile and no reliance can be placed upon his testimony for the purposes of deciding as to whether the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. The defence also appears to be conscious of the fact that the Public Prosecutor had sought the permission to cross-examine the witness to a limited extent. The witness was subjected to lengthy and detailed cross-examination with respect to the making of extra judicial confession by the appellant. The trial as well as the High Court rightly relied upon his testimony to hold that the appellant had voluntarily made the extra judicial confession to the aforesaid witness. There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa [AIR 1977 SC 170] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. Extensively dealing with the terms hostile, adverse and unfavourable witnesses and the object of the provisions of the Evidence Act this Court in Sat Paul v. Delhi Administration [AIR 1976 SC 294] held: To steer clear of the controversy over the meaning of the terms hostile witness, adverse witness, unfavourable witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared adverse or hostile . Whether it be the grant of permission under Sec.142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross- examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observfations of Sir Lawrence Jenkins in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his own witness by evidence of bad character. The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for, interpreting and applying the Indian Evidence Act has been pointed out in several authoritative pronouncements. In Prafulla Kumar Sarkar v. Emperor, ILR 58 Cal 1404 = (AIR 1931 Cal. 401)(FB )an eminent Chief Justice, Sir George Rankin cautioned, that when we are invited to hark back to dicta delivered by English Judges, however, eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact . It was emphasised that these departures from English Law were taken either to be improvements in themselves or calculated to work better under Indian conditions . xxxxx xxx 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 resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned with human blood were seized and upon his information Kassi (Exhibit P-21) (Article A-1) was recovered from inside his house. Recovery is proved by the testimony of Niranjan Singh (PW6) and Joginder Singh (PW7) besides the IO (PW2). On 12th July, 1976 the appellant gave information about the chadar (sheet) which was recorded as Exhibit P-22 and in presence of Ram Singh, (PW3) he produced the same which was hidden by him in his house kept in a pitcher (earthen water pot). The recovery memo was prepared and signed by Ram Singh (PW 3), Jarnail Singh (PW2) and Shambu Singh (PW12). Chadar was stained with human blood. Both the trial as well as the High Court rightly held that the prosecution has succeeded in proving the making of the disclosure statements by the appellant and consequent recovery of the weapon of offence and chadar at his instance. An hair was found studded with Kassi, the weapon of offence, recovered at the instance of the accused after making the disclosure statement. Hair from the skull and the scalp of the deceased were also seized by the investigating agency. All the three hair were sent to the Forensic Science Laboratory who upon analysis of morphological exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of some other origin? Such guesswork that blood on the other axe would have been animal blood in unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused. Learned counsel for the accused made an effort to sustain the rejection of the abovesaid evidence for which he cited the decisions in Prabhu Babaji Navle v. State of Bombay [AIR 1956 SC 51] and Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74]. In the former, Vivian Bose, J. has observed that the chemical examiner s duty is to indicate the number of bloodstains found by him on each exhibit and the extent of each stain unless they are too minute or too numerous to be described in detail. It was a case in which one circumstance projected by the prosecution was just one spot of blood on a dhoti. Their Lordships felt that blood could equally have spurted on the dhoti of a wholly innocent person passing through in the circumstances described by us earlier in the judgment . I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Jitrai Majhi was alleged to have got the deceased killed through the instrumentality of Kansa Behera. There was no eye-witness and the case of the prosecution was based only upon circumstantial evidence. One of the circumstance relied upon by the prosecution was that the dhoti and shirt recovered from the possession of the appellant, when he was arrested, were found to be stained with human blood. In that context this Court observed: Few small blood-stains on the clothes of a person may even be of his own blood specially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood-stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn. The position in the instant case is totally different inasmuch as the blood stained chadar (sheet) was recovered after about 5 days from the date of the arrest of the appellant which he had concealed in a pitcher and kept in his house. But for the disclosure statement made by the appellant, the fact of the chadar (sheet) belo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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