Whether seizure panchnama can be proved by evidence of investigating officer even if panch witnesses turn hostile?

 As pointed out earlier, based on the disclosure statement of Accused No. 1, MO-1-dagger which was kept hidden in the haystack of fodder in the loft of the cattle shed behind the house of Accused No. 1 had been seized under Ex.-P9-Panchnama in the presence of panch witnesses PW-8-Chandrappa and PW-9-Mahadevappa Needgera. The said panch witnesses have not supported the prosecution case and turned hostile. MO-2-dagger and MO-3-handle of the axe were recovered from the scene of occurrence under Ex.-P7-spot panchnama. On behalf of the Accused, learned Senior Counsel contended that the evidence of PW-17-PSI as to the recovery of MO-1-dagger at the behest of Accused No. 1 is doubtful and when PWs 8 and 9 have turned hostile, no weight could be attached to the alleged recovery of MO-1-dagger. There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the Investigating Officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. In Rameshbhai Mohanbhai Koli v. State of Gujarat and Ors. MANU/SC/0871/2010 : (2011) 11 SCC 111, it was held as under:

33. In Modan Singh v. State of Rajasthan MANU/SC/0126/1978 : (1978) 4 SCC 435 it was observed (at SCC p. 438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra MANU/SC/2255/2000 : (2001) 9 SCC 362.

34. In Anter Singh v. State of Rajasthan MANU/SC/0096/2004 : (2004) 10 SCC 657, it was further held that: (SCC p. 661, para 10)

10. ... even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.

35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case, Krishna Gopal case and Anter Singh case.)

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1066 of 2009

Decided On: 08.08.2019

 Mallikarjun  Vs.  State of Karnataka

Hon'ble Judges/Coram:

R. Banumathi and A.S. Bopanna, JJ.

Citation: (2019) 8 SCC 359

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Whether prosecution can disown its own witness without declaring her hostile?

 PW 16 is an employee of the Municial Council, Chandrapur
and her evidence considering her duty is very important. Admittedly, she
is Incharge of birth and death register. Therefore, her evidence regarding
taking of the birth entry and its being maintained at her office would
have great significance in this case. She had brought abstract of birth
and death register's relevant page. This page is at Exh.145.
At Sr.No.13
at Exh.145,
there is an entry regarding birth of one female on 1.10.1994
with accused No.7 and 8 having been shown as father and mother.

Name of the child is not mentioned therein and the relevant column has
been left blank. No reason has been given by this witness for leaving
blank the column of name of the new born, though we do not find
anything amiss in it as it would be too naive to expect that any parents
would assign a name to an infant immediately on birth and without
completing customary rituals, which have a customary day fixed to
follow. Nevertheless, she has deposed about making of corrections later
on at the behest of accused Nos.7 and 8. There is no dispute about the
fact that these corrections were sought and granted by the Municipal
Council, Chandrapur after registration of crime against the accused
persons in the present case. By these corrections the name of the child
i.e. victim came to be entered in the birth register and also in the birth
certificate issued by the Municipal Council, Chandrapur. Along with the
name of the victim the nick name “Mondi” of accused No.8, has also
been inserted in this document. This was done, according to evidence of
PW 16 Vasanti, by following the due procedure of law in the sense that
proper verification on the basis of such documents as PAN Card, Aadhar
Card, Ration Card, and affidavit was carried out and the claim made by
the parents of the child was found to be correct. Now, the question
would arise as to whether or not any reliance could be placed upon
evidence of this witness and the document that has been proved by the
prosecution through her evidence.

13. The question has been answered by the learned Sessions
Judge in a negative manner. She has rejected the evidence of PW 16 on
the ground that all these corrections were made after the offences in the
present case came to be registered. We find that the ground taken by the
learned Special Judge for discrediting PW 16, Vasanti, is not borne out
from the record and also agitates against the own case of the
prosecution.
14. If we take a careful look at the evidence of PW 16 Vasanti,
we would find that this witness was examined as a prosecution witness
and we do not know as to what made the prosecution examine this
witness as it's own witness, at least this is what appears from the
recorded deposition. After having examined its own witness and after
having not declared the witness with the permission of the Court as
hostile to the prosecution, it is not permissible under the law for the
prosecution to disown its own witness. It is also not permissible in law
for the Court to say that the witness of the prosecution having gone
against the prosecution cannot be believed when the Court has not found
any element of hostility in such a witness. The prosecution has also not
brought on record through the evidence of this witness that the correct
date of birth was either 15.5.1999 or 15.3.1999 and the date of birth
shown in Municipal Council record as 1.10.1994 to be incorrect. No
suggestion in this regard appears to have been given to PW 16 by the

learned A.P.P. Rather, she has been examined as a prosecution witness in
such a manner as to create an impression that the prosecution desired
more strongly to prove the date of birth of the victim to be 1.10.1994
than anything else. There is absolutely nothing in the entire evidence of
PW 16 to find that this witness has spoken some falsehood on oath
before the Court.
15. If such is the impression which one gets logically on reading
the evidence of PW 16 Vasanti, we doubt, if such a witness could be
declared as untrustworthy just because she has stated a different date of
birth of the victim which was not in accordance with the expectations of
the Court. However, this is how the evidence of PW 16 has been
appreciated by the learned Special Judge and we find, with due respect
to the learned judge, that the inference drawn by her cannot arise
logically on assessment of the evidence of PW 16 Vasanti. We are also of
the opinion that there is nothing in her evidence to doubt what she has
stated about the date of birth of the victim and taking of entry (Exh.145)
in the birth register showing the date of birth of the victim to be
1.10.1994. Accordingly, we find her evidence and Exh.145
as reliable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL No.740 OF 2018

 Vimalbai Manohar Doballiwar  Vs The State of Maharashtra,



CORAM
: S.B. SHUKRE AND
S.M. MODAK, JJ.
DATE : 19 th DECEMBER, 2018.
ORAL JUDGMENT : (Per : S.B. Shukre, J.)

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When court should disregard evidence of doctor that injury was due to fall?

 Under Section 161, Code of Criminal Procedure confirming the sexual assault on her after she turned hostile, contending that she had suffered injury in a fall. The nature of injuries on her person are well nigh impossible due to a fall. Any opinion of the doctor that such injury could be caused by a fall, does not establish the injury as due to fall, as a fact but remains a mere expression of an opinion.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 913 of 2016

Decided On: 28.09.2018

Hemudan Nanbha Gadhvi  Vs. State of Gujarat

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Whether court commissioner can declare witness hostile?

 The next question that has been raised is about the power of the Commissioner to declare a witness hostile. Order XVIII Rule 4(4) requires that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. Order XVIII Rule 4(8) stipulates that the provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission thereunder. The discretion to declare a witness hostile has not been conferred on the Commissioner. Under section 154 of the Evidence Act, it is the Court which has to grant permission, in its discretion, to a person who calls a witness, to put any question to that witness which might be put in cross-examination by the adverse party. The powers delegated to the Commissioner under Order XXVI Rules 16, 16-A, 17 and 18 do not include the discretion that is vested in Court under section 154 of the Evidence Act to declare a witness hostile.

12. If a situation as to declaring a witness hostile arises before a Commission recording evidence, the concerned party shall have to obtain permission from the Court under section 154 of the Evidence Act and it is only after grant of such permission that the Commissioner can allow a party to cross-examine his own witness. Having regard to the facts of the case, the Court may either grant such permission or even consider to withdraw the commission so as to itself record remaining evidence or impose heavy costs if it finds that permission was sought to delay the progress of the suit or harass the opposite party.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) Nos. 496 and 570 of 2002

Decided On: 02.08.2005

Salem Advocate Bar Association, Tamil Nadu

Vs.

Union of India (UOI)

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Golden rules for appreciation of evidence of hostile witness

The evidence of the hostile witness is not to be rejected in its entirety.
In Rameshbhai Mohanbhai Koli vs. State of Gujarat [(2011)11 SCC 111], the
Supreme Court at paragraph 16 (SCC p.117, paras 16-17) clarified the law as
under:-
 “16. It is settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and
cross-examined him. The evidence of such witnesses
cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent that
heir version is found to be dependable on a careful scrutiny
thereof. (Vide Bhagwan Singh v. State of Haryana,
Rabindra Kumar Dey v. State of Orissa, Syad Akbar v.
State of Karnataka and Khujji v. State of M.P.)”
Again reiterating the said proposition of law in the State of U.P. Vs.
Ramesh Prasad Misra (1996 10 SCC 360), it was held that the evidence of a
hostile witness would not be totally rejected if spoken in favour of the
prosecution or the accused but required to be subjected to close scrutiny.

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.722 of 2012

 Ram Chandra Sah V The State of Bihar

Criminal Appeal (DB) No. 605 of 2012

CORAM: MR. JUSTICE KISHORE KUMAR MANDAL
and
 MR. JUSTICE SANJAY KUMAR

Date: 24-01-2017

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Whether court can convict accused under prevention of corruption Act if complainant turns hostile?

 The court, as we have  stated
earlier, had referred to section 20(1) of the Act and opined that  from  the
proven facts  the  court  can  legitimately  draw  a  presumption  that  the
delinquent officer had received and  accepted  money.   As  we  notice,  the
authorities in B. Jayaraj (supra) and M.R. Purushotam  (supra)  do  not  lay
down as a proposition of law that when the  complainant  turns  hostile  and
does not support the case of the prosecution, the prosecution  cannot  prove
its case otherwise and the court cannot legitimately  draw  the  presumption
under  Section  20  of  the  Act.    Therefore   the   proposition,   though
industriously,  presented  by  Mr.  Jain  that  when  Baj  Singh,  PW5,  the
complainant, had turned hostile the whole  case  of  the  prosecution  would
collapse is not acceptable and accordingly hereby rejected.
 IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 554 OF 2012

Vinod Kumar  V State of Punjab                         
   Citation;2015 ALLSCR900,AIR2015SC1206,
    2015CriLJ1442,(2015)3SCC220

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Whether conviction can be recorded on the basis of examination in chief if witness turns hostile in cross examination?

 It is settled principle of law that 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.
In other words, if the court finds from the two different statements
made by the same accused, only one of the two is believable, and
what has been stated in the cross- examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the  testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 892 OF 2009

Selvaraj @ Chinnapaiyan V State represented by Inspector of Police

PRAFULLA C. PANT, J.
dated;December 09, 2014.

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Whether evidence of a witness not declared hostile by prosecution is binding on prosecution?

 It is not known as to why the public prosecutor in the trial court failed to seek permission of the court to declare him hostile. His evidence is binding on the prosecution as it is. No reason, much less valid reason has been stated by the Division Bench as to how evidence of PW-6 can be ignored.

13. In the present case the prosecution never declared PWs 6,18, 29 and 30 hostile.Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence. This court in Mukhtiar Ahmed Ansari vs. State (NCT of Delhi)1 observed:

 A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared hostile. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution.

Supreme Court of India

Javed Masood & Anr. vs State Of Rajasthan on 9 March, 2010

Bench: B. Sudershan Reddy, Surinder Singh Nijjar

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