Trial Courts Must Shed Their Inertia & Ask Questions To Witnesses In Appropriate Cases To Sift Grain From Chaff: Allahabad HC

“It feels painful to observe that in our present system of trial despite having sufficient power to the judge to ask questions to the witnesses in order to find out the truth, most of them do not ask questions to the witnesses to shift the grain from the chaff. The practice of leaving witnesses to the Advocates, when a witness becomes hostile, is not uncommon in the trial Courts,” the bench of Justice Shamim Ahmed observed.

The Court added that a Judge does not preside over a criminal trial merely to see that no innocent man is punished, but a Judge also presides to see that a guilty man does not escape and both are public duties, which a Judge has to perform.

The bench made these observations while allowing an appeal filed by 4 accused in an Attempt to commit culpable homicide case (Section 308).

The Court noted that two prosecution witnesses in the case had turned hostile at the time of their examination-in-chief and they were required to submit their explanation regarding their previous statement given under Section 161 CrPC supporting the prosecution case, however, the trial Court did not seek their explanation.

The case in brief

As per the prosecution’s case, on May 4, 1993, the complainant, Abdul Mannan gave a written statement at the Police Station stating that the accused Itwari was fixing his son’s (Nabi Ullaha) marriage in the complainant’s family.

Thereafter, due to some dispute, the complainant’s relative refused the marriage, and due to this, the accused got angry and so he, along with 3 others, caught the uncle (Ashraf Ali) and brother (Ibrahim) of the complainant when they were coming from the market, abused them in filthy languages and even assaulted them with lathi and danda, due to which the victims got injured.

On the basis of the investigation, a charge sheet was filed and thereafter, the Court summoned the accused and charges were framed against them under Sections 323/34, 504, 506, 308/34 IPC.

During the trial, almost all the prosecution witnesses turned hostile and based on the testimonies of hostile prosecution witnesses, the guilt of the accused was inferred and the trial Court convicted and sentenced them to two years of rigorous imprisonment.

Challenging the conviction, the accused moved the HC wherein they argued that the trial court wrongly relied upon the witnesses after they had been declared hostile.

At the outset, the Court noted the real meaning of a hostile witness and observed that the evidence of such a witness can be relied upon wherein the same is found to be truthful in an appropriate case.

Perusing the statement of P.W.-1 Ali Ullaha as well as P.W.-2 Safder Ali, the Court noted that initially they had supported the prosecution case while their statements were recorded under Section 161 CrPC by the Investigating Officer, however, at the time of their examination-in-chief, they had totally denied the prosecution story.

“There can be no two opinions that these witnesses turned hostile on account of pressure exerted upon them by the accused persons. They refused to state the truth about the occurrence, and therefore, they were declared hostile. They were required to submit their explanation regarding their previous statement given under Section 161 CrPC supporting the prosecution case,” the Court remarked.

Further, the Court also noted that no proper explanation of injuries on the person of injured witnesses had been given in the case and thus, looking into the totality of statements of witnesses, the Court was of the opinion that the conclusion drawn by the trial court was not reasonable.

“It is established principle of law of evidence that statement of witness is to be read as a whole and conclusion should not be drawn only by picking up a single sentence of the statement of a witness. Thus the trial court has overlooked the material evidence available on record with regard to guilt of accused and to that extent conclusion drawn by the trial Court suffers with patent infirmity and perversity and therefore, liable to be reversed and set aside,” the Court further said as it allowed the appeal and acquitted them of the charges.

It may be noted that recently, the Supreme Court observed that Section 162 CrPC does not affect a Court's power to look into documents or put questions to witnesses suo motu to contradict them [Munna Pandey vs State of Bihar - 2023 LiveLaw (SC) 744].

"There is in our opinion nothing in Section 162 of the CrPC which prevents a Trial Judge from looking into the papers of the chargesheet suo motu and himself using the statement of a person examined by the police recorded therein for the purpose of contradicting such person when he gives evidence in favour of the State as a prosecution witness.", the bench of Justices B R Gavai, J B Pardiwala and Prashant Kumar Mishra observed.

For context, Section 162 CrPC provides that no statement made by any person to a police officer in the course of an investigation, whether it be recorded or not, shall be used for the purpose save as provided in the first proviso to the Section. The first proviso says that when any witness, whose statement has been reduced into writing by the police in accordance with the provisions of the CrPC, is called for the prosecution in inquiry or trial, the accused, with the permission of the court, may contradict the witnesses in the manner provided by Section 145 of the Evidence Act.

Appearances

Counsel for Appellant: A.R.Khan, Vimal Kishore Singh, Vishwa Nath Singh

Counsel for Respondent: Govt Advocate

Case title - Itwari And 3 Others vs. State of U.P 2023 LiveLaw (AB) 312 [CRIMINAL APPEAL No. - 335 of 1999]

Case Citation: 2023 LiveLaw (AB) 312

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