Hostility Of The Witnesses Cannot Be A New Ground For Granting Bail To An Accused: Allahabad High Court

The Allahabad High Court has recently observed that it is not for the court, in a bail matter, to form any opinion on the basis of the evidence given by the hostile witnesses as it would amount to evaluating the evidence.

With this, the bench of Justice Shekhar Kumar Yadav rejected the second bail plea moved by a murder accused (Krishna Kant) on the new ground that since 2 of the witnesses of last seen evidence have not supported the prosecution's case and have been declared hostile, therefore, he should be granted bail.

Stressing that hostility of the witnesses cannot be a new ground for granting bail to the accused applicant, the Court remarked thus

"If any opinion is taken on the basis of the evidence given by the hostile witnesses, it amounts to evaluating the evidence by this Court, which is impermissible while deciding the bail application under Section 439 Cr.P.C. It is well settled principle that trial court can record conviction based on the evidence of the Investigating Officer also. Therefore, the ground urged now cannot be considered for granting bail to accused applicant."

The case in brief

Essentially, the applicant has been accused of killing the deceased (Govind) with the aid of a co-accused on June 1, 2018. The dead body was found on the morning of JUne 2, 2018 and that is when the informant (father of the deceased) lodged an FIR.

The prosecution case rests on the last seen evidence of the informant and other witnesses, who have stated in their statements under Section 161 Cr.P.C. that they have seen the deceased accompanying the accused persons on June 1, 2018.

A chargesheet in the case has been filed against the Accused/applicant under Section 302 and earlier, the applicant's bail plea was rejected by the High Court in November 2019.

However, he moved the instant second bail plea on the ground that the two last seen witnesses have turned hostile and the applicant is in jail for more than three years, and therefore, even if all the witnesses are examined, the possibility of the case ending in the conviction of the applicant is very remote and, therefore, the applicant may be enlarged on bail.

On the other hand, the AGA submitted that though two of the witnesses of last seen evidence have turned hostile and the informant (P.W-3) has also not supported the case of the prosecution, the trial court would be at liberty to take a view whether to convict the accused or not based on the other evidence given by other witnesses during the trial.

Taking into account this submission and observing that the hostility of the witnesses cannot be a new ground for granting bail to the accused-applicant, the Court rejected the new ground for bail, however, the trial court was directed to expedite the trial in the case.

Case title - Krishna Kant vs. State of U.P [CRIMINAL MISC. BAIL APPLICATION No. - 33329 of 2020]

Case Citation: 2022 LiveLaw (AB) 542

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