No Legal Bar To Base Conviction Upon Corroborated Testimonies Of Hostile Witnesses: Delhi HC [Read Judgment]

In an appeal filed against the order of acquittal passed by the Trial Court, the division bench of Justice GS Sistani and Justice Chander Shekhar ruled,

"The law on it is well settled that such portion of the evidence of a hostile witness can be relied upon which is trustworthy and not as if the entire evidence of such a witness is to be negated completely.

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We are of the view that their evidence remains admissible in the trial and there is no legal bar to base a conviction upon their testimonies which is also corroborated by other reliable evidence. We are unable to accept the view taken by the Trial Court."

The Respondents herein, accused of causing dowry death of the Appellant's sister, were acquitted by the Trial Court from the charges framed under Sections 304-B, 498-A, 406 read with Section 34 of IPC and in the alternative, Sections 302 and 201 of IPC.

Assailing the same, the Appellant submitted:

1. Based on the provisions of Section 304-B IPC, the burden of proof would lie on the Respondents, to explain the unnatural death of deceased Poonam. However, the Trial Court did not follow the provision of law and shifted the burden on the prosecution, notwithstanding that no evidence was led by the Respondents in their defence.
2. The Trial Court developed an "imaginary conflict" within the testimonies of Prosecution witnesses and failed to consider that the discrepancies, if any, were minor and irrelevant.
3. The prosecution's case was duly established by the circumstantial evidence which unerringly pointed towards the guilt of Respondents.

In the backdrop, the deceased Poonam was murdered within 78 days of her marriage to the Respondent, Pramod Kumar. Allegedly, Pramod and his family made constant demands of dowry till March, 2002 and thereafter, the deceased was forced to go to her parental house on several dates. Subsequently, on May 4, 2002, she was brought back to her matrimonial home on the ground that her mother-in-law was seriously ill and on the same day, she was buried in a pit by her husband, where he was caught red-handed and arrested at the spot.

The Trial Court had acquitted the Respondents on the ground that the Appellant herein had roped in all the family members as accused, based on vague and general allegations. Further, there was gross unexplained delay in registering the FIR, thus, giving ample opportunity to the family members of the deceased to cook up exaggerated general allegations without assigning any specific role to any family member. Moreover, the testimonies of prosecution witnesses were full of improvements and contradictions, most of whom turned hostile.

Findings

The high court evaluated the matter from three broad angles.

Firstly it noted that the statements of hostile witnesses could be relied upon if they invoked the confidence of the court. Reliance was placed upon Selvaraj v. State, (2015) 2 SCC 662, wherein it was held,

"benefit of reasonable doubt is required to be given to the accused only if the reasonable doubt emerges out from the evidence on record. Merely for the reason that the witnesses have turned hostile in their cross-examination, the testimony in examination-in-chief cannot be outright discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record… However, such evidence is required to be examined with great caution."

Secondly, the court observed that even though there were complaints made by the deceased that she was being harassed for dowry, no specific allegations were attributed to any of the accused family members, proximate to the days of her death. Accordingly, the acquittal order vis-a-vis the family members was upheld.

"there were no specific instances of cruelty suffered by the deceased at the hands of her in-laws which were continuous and there was no live link between the demand so made by them and the death of Poonam…we find that there is no infirmity in the acquittal recorded by the Trial Court."

Reliance was placed on Satvir Singh v. State of Punjab, (2001) 8 SCC 633, wherein the Apex Court said,

"there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death… If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."

The court however concurred with the Appellant's submission that the burden of proving innocence lay on the Respondent-husband.

"By a deeming fiction in law, the onus shifts on to the respondent Pramod Kumar to prove as to how the deceased had died. The respondent Pramod Kumar did not care to explain as to how the death of his wife had occurred when she was picked by him on the same day of the incident from her parental home. Mere denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence…"

The court was of the opinion that the presence of the Respondent-husband the spot where the deceased was being buried, stood fully established in view of the testimonies of forest officials, alongwith the testimonies of the formal witnesses.

The court refused to accept the rival submission that once a witness had turned hostile, his statements could not be relied upon. Reliance was placed on State v. Sanjeev Nanda, (2012) 8 SCC 450, wherein it was clarified as under,

"if a court finds that in the process the credit of the witness has not been completely shaken, it 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."

Further stating that the statement of a police officer could be relied upon and could form the basis of conviction, if found to be reliable and trustworthy, the court said,

"The presence of the respondent Pramod Kumar at the spot cannot be doubted and stands fully established in view of the testimonies of (forest officials)…alongwith the testimonies of the formal witnesses...The reading of their testimonies show that the respondent Pramod Kumar was caught at the spot while he was digging a pit and trying to bury Poonam."

Since the Respondent-husband was not able to explain his presence at the spot, the court allowed the appeal vis-à-vis his acquittal and reserved the date for passing of sentence.

The Appellant was represented by Advocates KP Mavi and BP Mishra, the State by APP Radhika Kolluru and the private Respondents by Senior Advocate Ramesh Gupta with Advocate Bharat Sharma.

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