Can Rely On Statement Of Complainant Who Turned Hostile If Sufficient Evidence Available To Corroborate Prosecution's Version: P&H High Court

While refusing to set aside the conviction in a murder case, the Punjab & Haryana High Court has made it clear that where sufficient evidence is available to corroborate prosecution version, the statement of the complainant, despite his turning hostile during cross-examination can still be relied upon.

A division bench of Justice Gurvinder Singh Gill and Justice Gurbir Singh observed that "..where sufficient evidence is available to corroborate prosecution version, the statement of the complainant, despite his turning hostile during cross-examination can safely be relied upon."

In the present case, the complainant, who deposed in examination in chief that his daughter was allegedly shot in the head by the accused, was cross-examined 7 months after the examination in chief, during which he had denied any such incident.

The Court remarked "it is painful, to note" that while cross examination of the complainant who turned hostile was done "after a whopping delay of 7 months, there is nothing on record to justify the said delay."

The Court further added that "the recording of cross-examination was unduly prolonged, affording all the time to accused and his supporters to win him over. These facts will have to be taken into consideration while considering the evidentiary value of his evidence. Keeping in view the consistent view of the Hon'ble Supreme Court, we are of the opinion that it would be safe to rely on that part of the statement of this witness, which is corroborated by other evidence on record".

In this case, the prosecution, in order to lend corroboration to version of complainant, relied upon the factum of recovery of the weapon of offence at the instance of the accused and on the report of FSL.

These observations were made while hearing the plea against order of conviction in a murder case passed by ASJ, Mewat, Haryana. The accused was sentenced to life under Section 302 IPC, and rigorous imprisonment for 2 years under Section 25 Areas Act for committing murder of  a girl in 2016.

According to the prosecution, the accused (Shokeen) had fired the gunshots at the victim-girl head following an altercation with her father at a party in 2016.

In his examination in chief, the deceased girl's father had stated that the accused Shokeen had fired gun shots at his daughter and his friends encouraged him to do so. However, after 7 months in cross- examination the complainant deferred from his statement.

However, the FSL report pertaining to the ballistic examination of the allegedly recovered country-made pistol supported the prosecution's case but the counsel for the accused said reports of FSL cannot be looked into as no opportunity whatsoever was ever afforded to the appellant to cross-examine the expert.

Considering the submissions, the Court noted, on perusal of the testimony of PW-4 (complainant), it is invincible that in examination-in- chief, he had supported the prosecution story in entirety but in the cross- examination he had taken the path of prevarication.

Value Of Disclosure Statement Of Accused

The Court noted that the accused confessed his guilt immediately after the incident when he was arrested. Upon interrogation, he made disclosure statement confessing his guilt and as regards having concealed the country-made pistol in fodder room near the house of his uncle.

It was further the case of prosecution that the accused, in furtherance of his disclosure statement led the police party to the place where he had kept the pistol concealed and got the same recovered alongwith one live cartridge and an empty cartridge. 

Reliance was placed upon Dhananjoy Chatterjee alias Dhana v. State of West Bengal, [1994(2) SCC 220], it has been held by the Apex Court that entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused.

Noting that that the police officials had recovered the weapon and recorded the disclosure in discharge of their official duties and had no enmity with accused so as to falsely implicate him, the Court rejected the contention of the counsel for the accused that no independent witness was associated at the time of recording disclosure statement.

It said that the argument "does not carry any weight" as recovery of the pistol at the instance of the accused, shortly after the occurrence from a place which is not accessible to all is a fact which cannot be brushed aside easily.

Admissibility of Expert's report without cross-examination :

The Court also rejected the contention of counsel for accused person's contention as regards to non-admissibility of expert's report on account of the accused not having been afforded an opportunity of cross-examining the said expert witness.

Perusing the examination-in-chief of the complainant the Court noted that he stated consistently with the first version that the accused had fired from a country-made pistol at forehead of his daughter. The said version finds corroboration from medical evidence as well, added the bench.

As per post-mortem conducted by the team of doctors, "death was on account of fire-arm injury."

The Court referred to Apex Court's decision in Santosh @ Bhure v. State (G.N.C.T.) of Delhi [2023 LiveLaw (SC) 418] wherein Apex Court reversed the finding of High Court which had discarded the report of Government Expert for want of cross-examination. 

"There was no occasion for the trial Court to have summoned the expert for the purpose of cross-examination. As such this Court has no hesitation in holding that the report of FSL is not to be discarded and reliance can be placed upon the same," the Court noted.

In the light of the above, the Court concluded that, "Under these circumstances where sufficient evidence is available to corroborate prosecution version, the statement of the complainant, despite his turning hostile during cross-examination can safely be relied upon. As already noticed above, it is apparently a case where the accused had been successful in winning over the complainant during the inordinate delay of 7 months in recording cross-examination after the examination-in-chief had been recorded."

Consequently, the plea was dismissed.

Appearance: Mansur Ali, Chajju Khan and Imran Ali, Advocates for the appellant.

S.S. Pannu, Addl. A.G. Haryana.

Citation: 2023 LiveLaw (PH) 290

Title: Shokeen v. State of Haryana

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