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Thursday, November 24, 2016

“hostile” - 'culture of compromise'.= RAMESH AND ORS Vs. STATE OF HARYANA = 2016 Nov. http://judis.nic.in/supremecourt/imgst.aspx?filename=44323

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2526 OF 2014


|RAMESH AND OTHERS                          |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF HARYANA                           |.....RESPONDENT(S)           |



                               J U D G M E N T


A.K. SIKRI, J.

                 The appellants herein  were  tried  and  acquitted  by  the
Sessions Court for offences under Sections 302, 34,  498A  of  Indian  Penal
Code (for short, 'IPC') for which FIR bearing No. 254 dated 28th  September,
1999 was registered against  them  in  Police  Station  Sadar,  Bahadurgarh,
District Jhajjar,  Haryana.   However,   the  High  Court,  in  appeal,  has
overturned the  verdict  of  acquittal,  thereby  convicting  all  the  four
accused persons (appellants herein).  The judgment  of  the  High  Court  is
dated 30th May, 2014, whereby the appellants are sentenced as under:

            “Section 302/34 IPC:- To undergo rigorous imprisonment for  life
and to pay a fine of  Rs.10,000/-.   In  default  of  payment  of  fine,  to
further undergo rigorous imprisonment for one year.
            Section 498-A/34 IPC:- To undergo rigorous imprisonment for  two
years and to pay a fine of Rs.2,000/-.  In default of payment  of  fine,  to
further undergo rigorous imprisonment for six months.”

2.    We may state at the outset that  the  conviction  is  primarily  based
upon the statement of Smt. Roshni, wife of Appellant no. 1, just before  her
death.  This statement has been taken by the  courts  below  as  her  'dying
declaration' and acted upon with  the  aid  of  Section  34  of  the  Indian
Evidence Act, 1872.  It is this dying  declaration  which  is  the  bone  of
contention.  According to the appellants herein there was no reason to  rely
upon the same not only because of certain infirmities therein but  also  for
the reason of absence of any corroboration.   Therefore,  before  proceeding
further, we would like to reproduce the  statement  of  Roshni  (hereinafter
referred to as the 'deceased').  It reads as under:
“.....Stated that it was the time of 3 A.M. today.  I  was  sleeping  in  my
house at that time.  Then my husband Ramesh came  and  Suresh  his  brother,
i.e., my devar was also with  him.   Before  this,  Ramesh  my  husband  and
Suresh gave beatings to me.  Thereafter, my devar Suresh  lighted  stick  of
matchbox.  Wife of Suresh and my  mother  in  law  namely  Saroj  and   Prem
caught hold.  Those both brothers ablazed me.  Thereafter,  the  person  who
had caught hold me and who had set me on  fire  fled  away  from  the  spot.
Thereafter, outsider persons came there and put off my fire.  I  had  become
upset. Then I was shifted to Medical College  by  my  devar  Suresh  and  my
mother in law.

My marriage was solemnized 20 years before.  I  have  two  sons  Manjit  and
Ravinder aged about 16 and 15 years. One year ago after giving  beatings  to
me I was thrown in a well by Ramesh and Suresh.  I was taken  out  from  the
well by the villagers.  On some occasion they say to bring  buffalo  and  on
some occasion they demand money  and  scooter.   All  the  persons  i.e.  my
mother in law, devrani, devar and husband used to beat me.  Nothing  else  i
intend to depose, i am illiterate.  I have  heard  my  aforesaid  statement,
which is correct and  accurate.   Admitting  it  to  be  correct  i  put  my
signature on it.”


As pointed about above, FIR was registered against  the  appellants  on  the
basis of the aforesaid statement which reflects the case of  prosecution  as
well.  Still, in order to have the complete  narration  of  the  prosecution
story, we would like to recapitulate the same hereunder.

Marriage between Ramesh (Appellant No. 1) and the  deceased  was  solemnized
20 years before the aforesaid incident.  They had  two  sons  out  of  their
wedlock, namely, Manjit and Ravinder, 16  and  15  years  old  respectively.
The deceased was being harassed by her husband  and  in-laws  on  continuous
demand of dowry  which  could  not  be  fulfilled  by  the  parents  of  the
deceased. One year before the incident, she was even thrown  in  a  well  by
her husband and younger brother Suresh but was  rescued  by  the  villagers.
She was subjected  to  continuous  physical  torture  and  beatings  by  her
husband, younger brother Suresh,  Saroj  (wife  of  Suresh)  and  Prem  (her
mother in-law).

      On the fateful day, i.e., 20th September, 1999 when the  deceased  was
sleeping in the matrimonial house, her husband  Ramesh,  Suresh,  Saroj  and
Prem came there.  Saroj and Prem caught  hold  of  her  from  her  arms  and
Ramesh sprinkled kerosene on her.  Suresh lighted a matchstick and  set  her
ablaze.  After setting her ablaze all of  them  fled  away  from  the  spot.
Some persons from her neighbourhood came and  extinguished  the  fire.   She
was taken to Post-Graduate Institute of Medical Sciences (PGIMS), Rohtak  by
Ramesh, Suresh and Prem.   On  examination  by  the  doctors  in  the  Post-
Graduate Institute of Medical Sciences, it was found that she was  suffering
from 100% burns. An information  was  sent  by  Dr.  R.P.  Verma  to  Police
intimating admission of the deceased in the hospital.  On  receipt  of  this
information,  Sub-Inspector  Rohtash  visited  the  hospital  and  collected
medico-legal report of the victim.  He moved the  application  (Ex.  PJ)  to
the same medical officer seeking his opinion with regard to the  fitness  of
the patient, that is, to say  whether she was in fit state of mind  to  give
a statement.   The  doctor  declared  her  fit  to  make  a  statement  vide
endorsement Ex. PJ/1.  On  this,  the  Sub-Inspector  approached  the  Chief
Judicial Magistrate, Rohtak and moved the application (Ex. PH) for  deputing
an  officer  to  record  her  statement.   Shri  Bhupender  Nath,   Judicial
Magistrate, First Class, Rohtak was  assigned  this  task   vide  order  Ex.
PH/1.  The said Judicial Magistrate visited the hospital  and  recorded  the
statement, which has already been reproduced above.  On  the  basis  of  the
aforesaid statement, initially the FIR was  registered  under  Section  307,
498A read with Section 34, IPC.   However,   Roshni  succumbed  to  injuries
within few hours (around 10.30 p.m.) on the same day, i.e., 20th  September,
1999.  After her death, the FIR was modified  by  substituting  Section  302
IPC in place of Section 307 IPC.  Postmortem of the  body  of  the  deceased
was conducted.  The dead body was also subjected to autopsy by  a  Board  of
Doctors.   Investigating  Officer  also  conducted  the   spot   inspection,
prepared rough site plan of the  place  of  occurrence  (Ex.PL),  took  into
possession writing Ex.PD/1, arrested the accused persons, subjected them  to
custodial interrogation and in pursuance to their disclosure statement,  got
recovered various articles which were taken into possession.  On  completion
of investigation and  other  formalities,  a  report  under  Section  173(2)
Cr.P.C. was presented before the Court of Jurisdictional Magistrate.

Since an offence under Section 302 IPC is exclusively triable by  the  Court
of Sessions, case was committed under Section 209 Cr.P.C. by the  Magistrate
after having complied  with  the  provisions  contained  under  Section  207
Cr.P.C.  It was ultimately entrusted to the  Court  of  Additional  Sessions
Judge, Rohtak, for trial.

The Court of Sessions framed the charges against  all  the  accused  persons
under Section  302,  498A,  IPC  with  the  aid  of  section  34  IPC.   The
appellants pleaded not guilty and opted to contest.  With this, trial  began
and prosecution examined as many  as  14  witnesses.   Deposition  of  these
witnesses, as taken note of by the Trial Court as well as  the  High  Court,
is described in capitulated form hereinafter.

PW-1, Dr. R.P. Verma deposed with regard to admission  of  the  deceased  in
PGIMS, Rohtak at 6:40 AM on  20th  September,  1999  with  100%  burns.   He
conducted medico-legal examination and proved copy of MLR (Ex.PA).  He  also
sent ruqa (Ex.PB) to Police Post, PGIMS, Rohtak, intimating her admission.

PW-2, Constable Jai Chand prepared scaled site plan (Ex.PC) of the place  of
occurrence with correct marginal notes on demarcation by Karan Singh.

PW-3, Sardar Singh (father of the deceased),  deposed  with  regard  to  the
compromise arrived at with the accused Ramesh and others about a year  prior
to the occurrence in question. He furnished copy of compromise  as  well  as
that  of  proceedings   initiated   under   Section   107/151   Cr.P.C.   to
Investigating Officer which were taken into possession by  him  vide  Ex.PD.
He did  not  support  prosecution  version  in  respect  of  occurrence  and
ultimately he was declared hostile for toeing the line of the defence.

PW-4, Balraj  (brother  of  the  deceased),  identified  dead  body  of  the
deceased in the hospital.  PW-5, Partap, who is one of the relations of  the
deceased, was a witness to the recovery  memo  (Ex.PD/1).   PW-6,  Constable
Jagdish Chander got conducted autopsy of the dead body of the deceased.  PW-
7, Constable Kuldeep Singh was entrusted with the duty of handing  over  the
special report to the jurisdictional Magistrate as  well  as  senior  police
officer.
PW-8, Sub-Inspector Rohtash Singh, conducted initial investigation  of  this
case.  PW-9, Head Constable Balwan Singh, was a member of  police  party  at
the time when accused Ramesh was subjected to interrogation by  the  Station
House Officer Karan Singh and he suffered disclosure  statement  (Ex.PM)  to
the effect that  he  had  kept  concealed  an  empty  plastic  container  of
kerosene and  that  he  could  get  the  same  recovered.  Subsequently,  in
pursuance to his disclosure statement, he got  recovered  plastic  container
(Ex.P1) from the premises of his residential  house  which  was  taken  into
possession vide Ex.PN.

PW-10, Inspector  Mohar  Singh  proved  proceedings  carried  by  him  under
Section 107/151 Cr.P.C. against Ram Phal, son of  Chandgi,  and  Ramesh  and
Suresh, sons of Ram Phal, in pursuance of DDR No.  5  dated  May  22,  1998,
Police  Station,  Sadar,  Bahadurgarh.   He  proved  copy  of  the  calender
(Ex.PD/2).  On receipt of ruqa, he got registered FIR Ex.P1/A  on  September
20, 1999.

PW-11, Shri Bhupender Nath, Judicial  Magistrate  Ist  Class,  who  recorded
dying declaration of the deceased, proved the  same  as  Ex.  PH/3,  on  the
basis of which formal FIR was put in black &  white  and  investigation  was
put in motion.

PW-12, Dr. Neelam Thapar, Medical Officer, General Hospital,  Rohtak,  being
a member of the Medical Board, conducted autopsy on the dead  body  of  Smt.
Roshni and deposed as under:

“....Length of the body was 160 C.M. A mod  build  and  mod  nourished  dead
body of female, wearing no clothes having white metal ring in body side  2nd
toes.  No mark of ligature on the neck and dissection  etc.  present.   R.M.
present in all four limbs.  The injuries are follows:-

“1.   Superficial to be deep  infected  burns  present  all  over  the  body
except both feet.
2.    There is red line of demarcation between burn and non-burn areas.
3.    Singing of hair  present  over  scalp,  external  genetalia  and  both
axilla.
4.    Scalp, skull and vertebrae  described,  membranes  brain  healthy  and
congested walls,  ribs and cartridges described.

Pleura  healthy,  larynx  and  trachea  healthy,  both  lungs  healthy   and
congested.

Right side heart contains blood, left side of heart empty.   Abdominal  wall
described.  Peritoneum healthy.   Mouth,  pharynx  and  oesophagus  healthy,
stomach and its contents healthy and congested.  Stomach contains  50css  of
mucoid juices.  Small intestines and their contents  healthy  and  congested
and large intestine contain faecal matter. Liver,  spleen,  kidneys  healthy
and congested.  Bladder empty.  Organs of generation external  and  internal
external genetalia-hair burn  and  uterus  does  not  have  any  product  of
conception.

In our opinion the cause of death of deceased was burn and its  complication
where were ante mortem in nature  and  sufficient  to  cause  the  death  in
natural course of nature.....”


On the conclusion of the prosecution evidence,  incriminating  circumstances
appearing on record were put to the  accused  persons  for  eliciting  their
explanation thereto, as per the procedure mandated under Section 313 of  the
Cr.P.C.  They denied having any role and pleaded  that  it  was  a  case  of
accidental fire in which the deceased was trapped.  Since identical  defence
plea was taken by all the accused persons, our purpose would  be  served  in
reproducing the statement of Ramesh (Appellant No.1)  which runs as under :
“I am innocent.  I was living separate from the rest  of  the  family  after
dispute was settled in May, 1998 as declared by the  deceased  Smt.  Roshni.
On the night between 19/20/9.1999, I was at my in laws  house  at  Nizampur,
Delhi along with  my  truck  and  early  in  the  morning  at  4.00  A.M.  a
telephonic message was received that Smt. Roshni has received burn  injuries
due to falling of kerosene lamp and is being referred  to  PGI,  Rohtak  and
got her admitted in the hospital.  I or any of my family members have  never
harassed Smt. Roshni for dowry or  otherwise.   After  compromise,  she  was
living happily with me.  It seems that since she has  tutored  her  to  make
she alleged statement before JMIC.”

The trial court, after appraising the evidence on record, in  the  light  of
oral arguments which  were  advanced  by  both  the  sides,  held  that  the
prosecution could not prove the guilt of the  appellants  beyond  reasonable
doubt.  As per the trial court, the dying declaration of  the  victim  could
not be acted upon for the purpose of conviction in  view  of  the  following
attendant circumstances:
(a)   The  Judicial  Magistrate  (PW-11)  had  stated  during   his   cross-
examination that he could not say if the deceased  was  semi-conscious  when
he recorded her statement and he  had  proceeded  to  record  her  statement
because the Doctor had given his opinion that she was in fit state  of  mind
to give the statement.
(b)  Balraj (PW-4), who is the brother of the  deceased  had  stated  during
the cross-examination that deceased  husband  Ramesh  (appellant  No.1)  had
come to his house and stayed with him on  the  night  intervening  19th-20th
September, 1999.  He further deposed that on 20th September,  1999  at  4:00
a.m., they had received information about the deceased catching fire and  on
hearing this news, he along with  Ramesh  had  gone  to  Rohtak,  where  the
deceased was already lying admitted in the hospital.  PW-4 had also  deposed
to the effect that he had a talk with the deceased who  disclosed  him  that
she had received burn injuries as an earthern lamp had fallen on her.
            The trial court believed the aforesaid statement of PW-4 who  is
none else than the brother of  the  deceased  and  concluded  that  had  the
appellants committed murder of his  sister,  he  would  not  have  any  soft
corner for these accused persons.  The trial court  also  observed  that  as
per the statement of PW-4, since appellant No. 1 Ramesh was with him at  the
time of the incident, he had been falsely implicated in the case.
(c)  The trial court also took  into  consideration  the  conduct  of  other
appellants, namely, Suresh (brother of Ramesh),  his  wife  Saroj  and  Prem
(mother of Ramesh) who had taken the deceased to the  hospital  i.e.  PGIMS,
Rohtak for treatment.  Commenting upon this, the trial court  observed  that
had they poured kerosene on the deceased and set her on fire with  intention
to cause her death, they would not  have  taken  her  to  the  hospital  for
treatment and they would not have got evidence created  against  themselves.

(d)  As per the trial court, the dying declaration of the deceased was  also
intrinsically weak and was not trustworthy.
            This conclusion was arrived at by analysing the episode  in  the
following manner:
“...Roshni was sleeping in the house when she caught  fire  at  3:00  AM  on
20.09.1999.  Four persons were not required to commit her murder by  getting
her on fire.  When she was sleeping one person could  easily  pour  kerosene
and set her on fire.  Allegations made by Roshni in  her  statement  Ex.PH/3
that Saroj and Prem caught hold of her and Ramesh  poured  kerosene  on  her
and Suresh lighted fire, appears to be concocted and unnatural.”

On the aforesaid circumstances, the Court of Sessions held that it  was  not
safe to place reliance upon the dying declaration and the  possibility  that
the deceased committed suicide by dousing herself with kerosene and  setting
herself on fire and thereafter falsely  implicating  the  appellants,  could
not be ruled out in order to take revenge against them for  their  perceived
past misbehaviour.

The High  Court,  in  the  impugned  judgment,  has  found  fault  with  the
aforesaid analysis, approach and the manner in which the  dying  declaration
has been dealt with by the trial court.  According to the  High  Court,  the
veracity of the dying declaration could not be examined  with  reference  to
the other evidence.  It has held that the approach of the  trial  court  was
blemished.  According to the High Court, the trial  court  was  required  to
appreciate as to whether the statement of the deceased was given  in  a  fit
state  of  mind;  and  whether  it  was  voluntarily  given  without   being
influenced by any extraneous circumstances and without any tutory.  If  that
was so and the dying declaration of the deceased passed the  muster  of  the
aforesaid test and was to be believed, the conviction could be based  solely
on such a dying  declaration.   The  High  Court  then  examined  the  dying
declaration in the aforesaid perspective  and  found  that  the  Doctor  had
declared her fit to make a statement on the  basis  of  which  the  Judicial
Magistrate  recorded  the  statement  and  even  after  recording   of   the
statement, the Doctor again gave endorsement that the deceased remained  fit
during the period  her  statement  was  recorded.   In  such  circumstances,
statement of the Judicial Magistrate (PW-11) in the Court that he could  not
say  whether  the  deceased  was  semi-conscious  when  her  statement   was
recorded, was of no consequence as he had acted on the basis of the  medical
opinion.  The High Court has  also  observed  that  PW-11  never  stated  in
categorical terms that the deceased was semi-conscious  when  her  statement
was recorded and, therefore, the said reply of  PW-11  in  cross-examination
was read out of context.  The High Court further observed that  it  was  not
appropriate on the part of the trial court to discard the dying  declaration
in view of the deposition of her brother Balraj (PW-4).   As  per  the  High
Court, not only PW-4 but his father (PW-3) had not supported  the  statement
for the reasons best known to them and it appeared that they  had  been  won
over by the appellants.  The High Court also noted that merely  because  the
deceased had suffered  100%  burns  was  no  ground  to  discard  the  dying
declaration when there was a specific certificate given by the Doctor  about
her mental fitness and that she was capable of giving the statement.

Learned counsel for the appellants challenged the correctness of the  manner
in which the High  Court  has  pondered  over  the  issue.    In  the  first
instance, he submitted that it was a case of acquittal by  the  trial  court
after due appreciation of evidence on record and even when  two  views  were
possible, the High Court should not have tinkered with  the  acquittal.   He
also insisted that  the  trial  court  had  given  cogent  reasons  for  not
believing the dying declaration and one of the  most  material  circumstance
was that on the fateful night when the  incident  occurred,  appellant  No.1
(husband of the deceased) was with PW-4 and  it  clearly  demonstrated  that
appellant No.1 was falsely roped in. Therefore, it could not  be  said  that
the deceased had  given  an  honest  and  truthful  statement.   He  further
submitted that having suffered 100% burns, under no circumstances could  she
be in a position to  give  the  statement  and,  therefore,  certificate  of
Doctor should not have been believed.

Learned counsel for the  respondent,  on  the  other  hand,  submitted  that
incident took place in the matrimonial house and the deceased had given  the
statement  after  reaching  the  hospital.   The  authorities   were   fully
satisfied that she was in a position  to  give  the  statement.   Therefore,
there was no reason to discard the statement as  was  wrongly  done  by  the
trial court.  He, thus, supported the reasons given by the High Court.

We have duly  appreciated  the  submissions  advanced  by  counsel  for  the
parties on both sides.  No doubt,  the  High  Court  was  dealing  with  the
appeal against the judgment of the  trial  court  which  had  acquitted  the
appellants  herein.   The  scope  of  interference  in  an  appeal   against
acquittal  is  undoubtedly  narrower  than  the  scope  of  appeal   against
conviction.  Section 378 of the Code of  Criminal  Procedure,  1973  confers
upon the State a right to prefer an appeal to the  High  Court  against  the
order of acquittal.  At the same  time,  sub-section  (3)  thereof  mandates
that such an appeal is not to be entertained except with the  leave  of  the
High Court.  Thus, before an appeal is entertained on merits, leave  of  the
High Court  is  to  be  obtained  which  means  that  normally  judgment  of
acquittal of the trial court is attached a definite value which  is  not  to
be ignored by the High Court.  In other words, presumption of  innocence  in
favour of an accused gets further fortified or reinforced  by  an  order  of
acquittal.  At the same time, while  exercising  its  appellate  power,  the
High Court is empowered to reappreciate, review and reconsider the  evidence
before it.  However, this exercise is to be undertaken in order to  come  to
an independent conclusion and unless there are  substantial  and  compelling
reasons or very strong reasons to differ  from  the  findings  of  acquittal
recorded by the trial court, the High Court, as an  appellate  court  in  an
appeal against the acquittal, is not supposed to substitute its findings  in
case the findings recorded by the trial court are  equally  plausible.   The
scope of interference by the appellate court in an  order  of  acquittal  is
beautifully summed up in the case of Sanwat Singh v. State  of  Rajasthan[1]
in the following words:
“The foregoing discussion yields the following  results:  (1)  an  appellate
court has full power  to  review  the  evidence  upon  which  the  order  of
acquittal is founded; (2) the principles laid down  in  Sheo  Swarup's  case
afford a correct guide for the appellate  court's  approach  to  a  case  in
disposing of such an appeal; and (3) the different phraseology used  in  the
judgments of this Court, such as, (i) "substantial and compelling  reasons",
(ii) "good and sufficiently cogent reasons", and (iii) "strong reasons"  are
not intended to curtail the undoubted power of  an  appellate  court  in  an
appeal against acquittal to review the entire evidence and to  come  to  its
own conclusion; but in doing so it should not only consider every matter  on
record having a bearing on the questions of fact and the  reasons  given  by
the court below in support of its order of acquittal in its  arriving  at  a
conclusion on those facts, but should also  express  those  reasons  in  its
judgment, which lead it to hold that the acquittal was not justified.”


This legal position is reiterated in  Govindaraju  @  Govinda  v.  State  by
Sriramapuram  Police  Station  and  another[2]  and  the  following  passage
therefrom needs to be extracted:
“12. The legislature in its wisdom, unlike an appeal by an  accused  in  the
case of conviction, introduced the concept of leave to appeal  in  terms  of
Section 378 CrPC. This is  an  indication  that  appeal  from  acquittal  is
placed on a somewhat different footing than a normal appeal. But once  leave
is granted, then there is hardly any difference between a normal appeal  and
an appeal against acquittal. The concept of leave to  appeal  under  Section
378 CrPC has been introduced as an additional stage  between  the  order  of
acquittal and consideration of  the  judgment  by  the  appellate  court  on
merits as in the case of a regular appeal. Sub-section (3)  of  Section  378
clearly provides that no appeal to the High Court under sub-section  (1)  or
(2) shall be entertained except with the  leave  of  the  High  Court.  This
legislative intent  of  attaching  a  definite  value  to  the  judgment  of
acquittal cannot be ignored by the courts.

13.  Under the scheme of CrPC, acquittal confers rights on an  accused  that
of a free citizen. A benefit that has accrued to an accused by the  judgment
of acquittal can be taken away and he can be convicted on appeal, only  when
the judgment  of  the  trial  court  is  perverse  on  facts  or  law.  Upon
examination of the evidence before it, the appellate court should  be  fully
convinced  that  the  findings  returned  by  the  trial  court  are  really
erroneous and contrary to the settled principles of criminal law.”

The Court also took note of earlier  precedents  and  summarised  the  legal
position laid down in those cases, in the following words:
“17. If we analyse the above principle somewhat  concisely,  it  is  obvious
that the golden thread which runs  through  the  web  of  administration  of
justice in criminal cases is that if two views are possible on the  evidence
adduced in a case, one pointing to the guilt of the accused  and  the  other
to his innocence, the view which is favourable  to  the  accused  should  be
adopted.

18. There are no jurisdictional limitations on the power  of  the  appellate
court but it is to be exercised  with  some  circumspection.  The  paramount
consideration of the court should be to  avoid  miscarriage  of  justice.  A
miscarriage of justice which may arise from the acquittal of  guilty  is  no
less than that from the conviction of an innocent. If there  is  miscarriage
of justice from the acquittal, the higher court would examine the matter  as
a court of fact and appeal  while  correcting  the  errors  of  law  and  in
appreciation of evidence as well. Then the appellate court may even  proceed
to record the judgment of guilt to meet  the  ends  of  justice,  if  it  is
really called for.

                          xx          xx         xx

22. A very vital distinction which the court  has  to  keep  in  mind  while
dealing  with  such  appeals  against  the  order  of  acquittal   is   that
interference by the court is justifiable only when a  clear  distinction  is
kept  between  perversity  in  appreciation  of  evidence  and  merely   the
possibility of another view. It may not be quite appropriate  for  the  High
Court to merely record that the judgment of the  trial  court  was  perverse
without specifically dealing with the facets of perversity relating  to  the
issues  of  law  and/or  appreciation  of  evidence,   as   otherwise   such
observations of the High Court may not be sustainable in law.”

The appellate court, therefore, is  within  its  power  to  reappreciate  or
review the evidence on which the acquittal is based.  On reconsideration  of
the evidence on  record,  if  the  appellate  court  finds  the  verdict  of
acquittal to be perverse or against the settled position of law, it is  duly
empowered to set aside the same.  On the other hand, if the trial court  had
appreciated the evidence in right  perspective  and  recorded  the  findings
which are plausible and the view of the trial court  does  not  suffer  from
perversity,  simply  because  the  appellate  court  comes  to  a  different
conclusion on the appreciation of  the  evidence  on  record,  it  will  not
substitute its findings to that of findings recorded by the trial court.

In the instant case, we find that the  High  Court  has  interfered  on  the
ground that the very  approach  of  the  trial  court  in  appreciating  the
evidence on record was legally unsustainable.  If such observations  of  the
High Court are correct, it was fully  justified  in  interjecting  with  the
verdict of the trial court.

We have already noticed above the reasons recorded by the trial court  while
discarding the dying declaration.  Admittedly, no weightage is given by  the
trial court to the opinion of the Doctor certifying that  the  deceased  was
in a fit state of mind. Likewise, no reasons were given by the  trial  court
as to why the  testimony  of  the  Judicial  Magistrate,  who  recorded  the
statement, be disbelieved.

Law on the admissibility of the dying declarations is well settled.  In  Jai
Karan v. State of N.C.T.,  Delhi[3],  this  Court  explained  that  a  dying
declaration is admissible in evidence on the principle of necessity and  can
form the basis of conviction if it is found to be reliable.  In  order  that
a dying declaration may form the sole basis for conviction without the  need
for independent corroboration it must be shown that  the  person  making  it
had the opportunity of identifying the person implicated and  is  thoroughly
reliable and free from blemish.  If, in the facts and circumstances  of  the
case, it is found that the maker of the statement was  in  a  fit  state  of
mind and had voluntarily  made  the  statement  on  the  basis  of  personal
knowledge without being  influenced  by  others  and  the  court  on  strict
scrutiny finds it to be reliable, there  is  no  rule  of  law  or  even  of
prudence that such a reliable piece of evidence cannot be acted upon  unless
it is  corroborated.   A  dying  declaration  is  an  independent  piece  of
evidence like any other piece of evidence, neither  extra  strong  or  weak,
and can be acted upon without corroboration if it is found to  be  otherwise
true and reliable.  There is no hard and fast rule of universal  application
as to whether percentage  of  burns  suffered  is  determinative  factor  to
affect credibility of dying declaration and improbability of its  recording.
 Much depends upon the nature of the burn, part of the body affected by  the
burn, impact of the burn on the faculties to think and convey  the  idea  or
facts coming to mind and other relevant factors.  Percentage of burns  alone
would  not  determine  the  probability  or  otherwise   of   making   dying
declaration.  Physical  state  or  injuries  on  the  declarant  do  not  by
themselves become determinative of mental fitness of the declarant  to  make
the statement (See Rambai v. State of Chhatisgarh[4]).

It is immaterial to whom the declaration is made.  The  declaration  may  be
made to a Magistrate, to a Police Officer, a public  servant  or  a  private
person.  It may be made before the doctor; indeed,  he  would  be  the  best
person to opine about the fitness of the dying man to  make  the  statement,
and to record the statement, where he found that life was  fast  ebbing  out
of the dying  man  and  there  was  no  time  to  call  the  Police  or  the
Magistrate.  In such a situation the Doctor would be justified, rather  duty
bound, to record the dying declaration of the dying man.  At the same  time,
it also needs to be emphasised that in the instant case,  dying  declaration
is recorded by a competent Magistrate who was  having  no  animus  with  the
accused persons.  As held in Kushal Rao v. State of Bombay[5], this kind  of
dying declaration would stand on  a  much  higher  footing.   After  all,  a
competent Magistrate has no axe to grind against the  person  named  in  the
dying declaration of the victim and in the absence of circumstances  showing
anything to the contrary, he should not be disbelieved  by  the  Court  (See
Vikas & Ors. v. State of Maharashtra[6]).

No  doubt,  the  victim  has  been  brought   with   100%   burn   injuries.
Notwithstanding, the doctor found that she was in a conscious state of  mind
and was competent to give her statement.  Thus,  the  Magistrate  had  taken
due precautions and, in fact, Medical  Officer  remained  present  when  the
dying declaration was being recorded.   Therefore,  this  dying  declaration
cannot be discarded merely going by the extent of burns with which  she  was
suffering, particularly, when the  defence  has  not  been  able  to  elicit
anything from the cross-examination of the doctor that her mental  faculties
had totally impaired rendering her incapable of giving a statement.

Keeping in view the  aforesaid  considerations,  we  feel  that  High  Court
rightly observed that the manner in which the  trial  court  proceeded  with
the matter was legally  unsustainable.   It  was  necessary  for  the  trial
court, in the first instance, to see as  to  whether  due  precautions  were
taken before recording the statement of the  deceased,  which  became  dying
declaration as she died within few hours thereafter.  In this context,  what
is relevant is that the moment the deceased was admitted in  PGIMS,  Rohtak,
without any loss of time and immediately thereafter the Doctor at  the  said
hospital sent the information to the police post about her admission in  the
hospital with burns.  On receipt of that information, Sub-Inspector  visited
the hospital and collected Medical Report of the deceased.   He  immediately
moved an application  before  the  concerned  Medical  Officer  seeking  his
opinion with regard to the fitness of  the  patient.   On  that  application
itself (Ex. PG), the Doctor made an endorsement (Ex. PG/1) that she was  fit
to make statement.  Sub-Inspector  did  not  record  the  statement  of  the
deceased himself.  Rather, he took due precaution by approaching  the  Chief
Judicial Magistrate, Rohtak with an application (Ex. PH) requesting  him  to
depute an officer  to  record  the  statement  of  the  deceased.   On  this
application,  orders  were  passed  (Ex.  PH/1)  directing  Bhupinder  Nath,
Judicial Magistrate, First Class, Rohtak to go to the  hospital  and  record
the statement.  Armed with this order, the Magistrate reached  the  hospital
and recorded the statement of the deceased.  This recording was done in  the
presence of the Doctor who again certified that she had given the  statement
in a fit state of mind.

Aforesaid narration stating the manner in which statement  of  the  deceased
was recorded clearly brings out that all possible precautions were taken  by
the concerned authorities before and while  recording  her  statement.   The
trial court in its judgment has not even discussed  the  aforesaid  aspects.
The recording of statement by  the  Judicial  Magistrate  is  sought  to  be
discredited on the specious ground that  in  his  cross-examination  he  has
stated that he could not say whether the deceased was  semi-conscious.   The
High Court has rightly recorded that this statement of PW-11 is read out  of
context.  The aforesaid answer by PW-11 was in reply to the question put  to
him as to whether the deceased was semi-conscious  when  her  statement  was
recorded by him.  It is in reply to this question he stated that  he  cannot
say if she was semi-conscious when her  statement  was  recorded.   He  also
clarified that since the Doctor had  given  his  opinion,  he  proceeded  to
record her statement.  It may be noticed that PW-11 nowhere stated that  the
deceased was semi-conscious when her statement was recorded.  The  statement
of PW-11 was to be taken into consideration as a  whole.   It  has  come  on
record, and we repeat, that after  the  completion  of  her  statement,  the
Doctor made an endorsement (Ex.  PH/4)  to  the  effect  that  the  deceased
remained  fit  during  the  recording  of  her  statement  and  it  is  only
thereafter the learned Magistrate (PW-11) appended his signature (Ex.  PH/5)
categorically stating that the statement recorded by him  was  true  version
of what the deceased had spoken and he had stated in unambiguous terms  that
she was fit to make statement  and  remained  fit  till  her  statement  was
recorded.

In view of the specific certification by the Doctor  about  the  fitness  of
the deceased that she remained fit while recording the statement,  the  mere
effect that she had suffered 100% burns would not, ipso facto, lead  to  the
conclusion that the deceased was unconscious  or  that  she  was  not  in  a
proper state of mind to make a statement.  At this stage, it would  also  be
relevant to point out that no challenge was  made  by  the  defence  to  the
aforesaid statement of the deceased on the  ground  that  it  was  not  made
voluntarily or it was made  by  any  extraneous  circumstances  or  was  the
result of tutoring.  In fact, even as per the appellants,  it  is  they  who
had taken the deceased to the hospital and no other person known to her  had
come in her contact before the statement was recorded.  On the contrary, PW-
3 and PW-4 (father and  brother  of  the  deceased  respectively)  have  not
supported the prosecution version, which aspect shall be  dealt  with  later
at the appropriate stage and, therefore, the question of tutoring  does  not
arise at all.

On examination and analysis  of  the  dying  declaration  in  the  aforesaid
perspective, we do not find any reason to discard it having  regard  to  the
legal position  on  the  subject  already  noticed  above  by  referring  to
relevant case law.  It is trite that  dying  declaration  is  a  substantive
piece of evidence and can be made the basis of conviction once the Court  is
convinced that dying declaration is made voluntarily and is  not  influenced
by any extraneous circumstances.

There is one more reason that was given by the  trial  court  in  discarding
the dying declaration and if correct, that would afford strong  circumstance
to justify its conclusion.  It is the PW-4 who  has  come  as  a  shield  to
protect the appellants.  For this reason, we  advert  to  the  statement  of
Balraj (PW-4), brother of  the  deceased.   He  stated  that  on  the  night
intervening 19th – 20th September, 1999, Ramesh was with  him.   He  further
deposed that at 4:00  a.m.  on  20th  September,  1999,  they  received  the
information about the deceased having sustained burn injuries and  he  along
with Ramesh reached PGIMS, Rohtak where she was already present.  It  is  on
the basis of this statement that the trial court observed that since  Ramesh
was with Balraj (PW-4) in his house, he could not be present  at  the  place
of incident when it took place and, therefore, he is falsely implicated  and
mentioning of his name considerably dents the veracity of dying  declaration
thereby rendering it questionable.  However, we find that in  accepting  the
aforesaid version of PW-4, the trial court committed a serious mistake.   As
per the hospital records, it is Ramesh who had brought the deceased  to  the
hospital and got her admitted which was even the defence case as well.   The
trial court completely overlooked this pertinent aspect.   This  fact  alone
is sufficient to discredit the statement of PW-4 that Ramesh  was  with  him
in his house and both  of  them  had  received  the  information  about  the
incident and when both of them  reached  PGIMS,  Rohtak,  the  deceased  was
already there.  In these circumstances, we  entirely  agree  with  the  High
Court that PW-4, though brother of the deceased, appears to  have  been  won
over by the appellants.

We find that it is becoming a common phenomenon, almost a  regular  feature,
that in criminal cases  witnesses  turn  hostile.  There  could  be  various
reasons for this behaviour or attitude of the  witnesses.   It  is  possible
that when the statements of such witnesses were recorded under  Section  161
of the Code of Criminal Procedure, 1973 by the police during  investigation,
the  Investigating  Officer  forced  them  to  make  such  statements   and,
therefore,  they  resiled  therefrom  while  deposing  in  the   Court   and
justifiably so.  However, this is no  longer  the  reason  in  most  of  the
cases.  This trend of witnesses turning hostile  is  due  to  various  other
factors.  It may be fear  of  deposing  against  the  accused/delinquent  or
political pressure or  pressure  of  other  family  members  or  other  such
sociological factors.  It is also  possible  that  witnesses  are  corrupted
with monetary considerations.

In some of the judgments in past few years, this Court  has  commented  upon
such peculiar behaviour of witnesses turning hostile and we  would  like  to
quote from few such judgments.   In Krishna  Mochi  v.  State  of  Bihar[7],
this Court observed as under:
“31. It is matter of common experience that in recent times there  has  been
sharp decline of ethical values in public life even in  developed  countries
much less developing one, like ours, where the ratio of decline  is  higher.
Even in ordinary cases, witnesses  are  not  inclined  to  depose  or  their
evidence is not found to be credible by courts for manifold reasons. One  of
the reasons may be that they do  not  have  courage  to  depose  against  an
accused because of threats to their life, more so  when  the  offenders  are
habitual criminals or high-ups in the Government or close to  powers,  which
may be political, economic or other powers including muscle power.”

Likewise,  in  Zahira  Habibullah  v.  State  of  Gujarat[8],   this   Court
highlighted the problem with following observations:
“40.  Witnesses, as Bentham said, are the eyes and ears of  justice.  Hence,
the importance and primacy of the quality of trial process. If  the  witness
himself is incapacitated from acting as eyes and ears of justice, the  trial
gets putrefied and paralysed and it no longer can constitute a  fair  trial.
The incapacitation may be due to several factors like the witness being  not
in a position for reasons beyond control, to speak the truth  in  the  court
or due to negligence or  ignorance  or  some  corrupt  collusion.  Time  has
become ripe to act on account of numerous experiences faced by the court  on
account of frequent turning of witnesses as hostile, either due to  threats,
coercion, lures and monetary considerations at  the  instance  of  those  in
power, their henchmen and hirelings,  political  clouts  and  patronage  and
innumerable other corrupt  practices  ingeniously  adopted  to  smother  and
stifle truth and realities coming out to surface. Broader public and  social
interest require that the victims  of  the  crime  who  are  not  ordinarily
parties to prosecution and the interests  of  State  representing  by  their
presenting agencies do not suffer… there comes the need for  protecting  the
witnesses. Time has come when serious  and  undiluted  thoughts  are  to  be
bestowed for protecting witnesses so that ultimate  truth  presented  before
the Court and justice  triumphs  and  that  the  trial  is  not  reduced  to
mockery.

41.  The State has a definite role to play in protecting the  witnesses,  to
start with at least in sensitive cases involving those  in  power,  who  has
political patronage and could wield muscle and money power, to  avert  trial
getting tainted and derailed and truth becoming a casualty. As  a  protector
of its citizens it has to ensure that during a trial in  Court  the  witness
could safely depose truth  without  any  fear  of  being  haunted  by  those
against whom he had deposed. Every State  has  a  constitutional  obligation
and duty to protect the life and  liberty  of  its  citizens.  That  is  the
fundamental requirement for observance of the rule of law. There  cannot  be
any deviation from this requirement because of any extraneous factors  like,
caste, creed,  religion,  political  belief  or  ideology.  Every  State  is
supposed  to  know  these  fundamental  requirements  and  this   needs   no
retaliation. We can only say this with  regard  to  the  criticism  levelled
against  the  State  of  Gujarat.  Some  legislative  enactments  like   the
Terrorist and Disruptive Activities (Prevention) Act,  1987  (in  short  the
“TADA Act”) have taken note of the reluctance shown by witnesses  to  depose
against people with muscle power, money power or political power  which  has
become the order of the day. If ultimately truth is to be  arrived  at,  the
eyes and ears of justice have to be  protected  so  that  the  interests  of
justice do not get incapacitated in the  sense  of  making  the  proceedings
before Courts mere mock trials as are usually seen in movies.”

Likewise, in Sakshi v. Union of India[9], the menace  of  witnesses  turning
hostile was again described in the following words:
“32. The mere sight of the accused may induce an element of extreme fear  in
the mind of the victim or the witnesses or  can  put  them  in  a  state  of
shock. In such a situation he or she may not be able to  give  full  details
of the incident which may result in miscarriage  of  justice.  Therefore,  a
screen or some such arrangement can be made where the  victim  or  witnesses
do not have to undergo the trauma of seeing the body  or  the  face  of  the
accused.  Often  the  questions  put  in  cross-examination  are   purposely
designed to embarrass or confuse the victims of rape and  child  abuse.  The
object is that out of the feeling of shame or embarrassment, the victim  may
not speak out or give details of certain acts committed by the  accused.  It
will, therefore, be better if the questions to be  put  by  the  accused  in
cross-examination are given in writing  to  the  Presiding  Officer  of  the
Court, who may put the same to the victim or witnesses in a  language  which
is not embarrassing.  There  can  hardly  be  any  objection  to  the  other
suggestion given by the petitioner that whenever a child or victim  of  rape
is required to give testimony, sufficient breaks  should  be  given  as  and
when required. The provisions of sub-section  (2)  of  section  327  Cr.P.C.
should also apply in inquiry or trial of offences under Section 354 and  377
IPC.”

In State v. Sanjeev Nanda[10], the Court  felt  constrained  in  reiterating
the growing disturbing trend:
“99. Witness turning hostile is a  major  disturbing  factor  faced  by  the
criminal courts in  India.  Reasons  are  many  for  the  witnesses  turning
hostile, but of late, we see, especially in high profile cases, there  is  a
regularity  in  the  witnesses  turning  hostile,  either  due  to  monetary
consideration or  by  other  tempting  offers  which  undermine  the  entire
criminal justice system and people carry the impression that the mighty  and
powerful can always get away from  the  clutches  of  law  thereby,  eroding
people’s faith in the system.

100.  This court in State of U.P. v. Ramesh Mishra and  Anr.  [AIR  1996  SC
2766] held that it is equally settled  law  that  the  evidence  of  hostile
witness  could  not  be  totally  rejected,  if  spoken  in  favour  of  the
prosecution or the accused, but it can be subjected to closest scrutiny  and
that portion of the evidence which  is  consistent  with  the  case  of  the
prosecution or defence may be accepted. In K. Anbazhagan  v.  Superintendent
of Police and Anr.,  (AIR 2004 SC 524), this Court  held  that  if  a  court
finds that in the process the credit of the witness has not been  completely
shaken, he 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. This is exactly what was done in  the  instant  case  by  both  the
trial court and the High Court and they found the accused guilty.

101. We cannot, however, close our  eyes  to  the  disturbing  fact  in  the
instant case where even the injured witness, who was present  on  the  spot,
turned hostile. This Court in Sidhartha Vashisht  @  Manu  Sharma  v.  State
(NCT of Delhi), (2010) 6 SCC 1 and in Zahira Habibullah Shaikh v.  State  of
Gujarat, AIR 2006 SC 1367,  had  highlighted  the  glaring  defects  in  the
system like non-recording of the statements correctly by the police and  the
retraction  of  the  statements  by   the   prosecution   witness   due   to
intimidation,  inducement  and  other  methods  of   manipulation.   Courts,
however, cannot shut their  eyes  to  the  reality.  If  a  witness  becomes
hostile to subvert the judicial process, the Courts shall  not  stand  as  a
mute spectator and every effort should be made  to  bring  home  the  truth.
Criminal judicial system cannot be overturned by  those  gullible  witnesses
who act under pressure, inducement or intimidation. Further, Section 193  of
the  IPC  imposes  punishment  for  giving  false  evidence  but  is  seldom
invoked.”

On the analysis of various cases, following reasons can be  discerned  which
make witnesses retracting their statements  before  the  Court  and  turning
hostile:
“(i)  Threat/intimidation.

(ii)  Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv)  Use of Stock Witnesses.

(v)  Protracted Trials.

(vi) Hassles faced by the witnesses during investigation and trial.

(vii) Non-existence of any  clear-cut  legislation  to  check  hostility  of
witness.”


Threat and intimidation has been one of the major causes for  the  hostility
of witnesses.  Bentham said: “witnesses are the eyes and ears  of  justice”.
When the witnesses are not able to depose correctly in the court of law,  it
results in low rate of conviction and many  times  even  hardened  criminals
escape the conviction.  It shakes public confidence in the criminal  justice
delivery system.  It is for this reason there has been a lot  of  discussion
on witness protection and from various  quarters  demand  is  made  for  the
State to play  a  definite  role  in  coming  out  with  witness  protection
programme, at least in sensitive cases involving those in  power,  who  have
political patronage and could wield muscle and money power, to  avert  trial
getting tainted and derailed and truth becoming a  casualty.   A  stern  and
emphatic message to this effect was given in  Zahira  Habibullah's  case  as
well.

Justifying the measures to be taken for witness  protection  to  enable  the
witnesses to depose truthfully and without fear, Justice Malimath  Committee
Report on Reforms of Criminal Justice System, 2003 has remarked as under:
“11.3 Another major problem is about safety of witnesses  and  their  family
members who face danger at different stages. They are often  threatened  and
the seriousness of the threat depends upon the type  of  the  case  and  the
background of the accused and his family. Many times crucial  witnesses  are
threatened or injured prior  to  their  testifying  in  the  court.  If  the
witness is still not amenable he may even be murdered.  In  such  situations
the witness will not come forward to give evidence unless he is  assured  of
protection  or  is  guaranteed  anonymity   of   some   form   of   physical
disguise…Time has come for a comprehensive law being enacted for  protection
of the witness and members of his family.”


Almost to similar effect are the observations of Law Commission of India  in
its 198th Report[11], as can be seen from the following discussion therein:
“The reason is not far to seek. In the case  of  victims  of  terrorism  and
sexual offences against women and juveniles, we are dealing with  a  section
of society  consisting  of  very  vulnerable  people,  be  they  victims  or
witnesses.   The victims and witnesses are under fear of or danger to  their
lives or lives of their relations or to their property. It is  obvious  that
in the case of serious offences under the Indian Penal code, 1860 and  other
special enactments, some of which we  have  referred  to  above,  there  are
bound to be absolutely similar situations for victims and  witnesses.  While
in the case of certain offences under special statutes such fear  or  danger
to victims and witnesses may be more common and pronounced, in the  case  of
victims and witnesses involved or  concerned  with  some  serious  offences,
fear may be no less important. Obviously,  if  the  trial  in  the  case  of
special offences is to be fair both  to  the  accused  as  well  as  to  the
victims/witnesses, then there is no reason  as  to  why  it  should  not  be
equally fair in the  case  of  other  general  offences  of  serious  nature
falling under the Indian Penal Code, 1860. It  is  the  fear  or  danger  or
rather the likelihood thereof that is common to  both  cases.  That  is  why
several general statutes in other countries provide for victim  and  witness
protection.”


Apart from the above,  another  significant  reason  for  witnesses  turning
hostile may be what is described as  'culture  of  compromise'.   Commenting
upon such culture in rape trials, Pratiksha Bakshi[12] has highlighted  this
problem in the following manner:
“During the trial, compromise acts  as  a  tool  in  the  hands  of  defence
lawyers and the accused to pressurise complainants  and  victims  to  change
their testimonies in a courtroom. Let us turn to a  recent  case  from  Agra
wherein a young Dalit woman was gang-raped and the rapist let off  on  bail.
The accused threatened to rape the victim again if she did  not  compromise.
Nearly a year after she was raped, she committed  suicide.   While  we  find
that the judgment records that the victim committed  suicide  following  the
pressure to compromise, the judgment does not criminalise  the  pressure  to
compromise as criminal intimidation  of  the  victim  and  her  family.  The
normalising function of the  socio-legal  category  of  compromise  converts
terror into a bargain in a context where  there  is  no  witness  protection
programme. This often accounts for why prosecution witnesses routinely  turn
hostile by the time the case comes on trial, if the  victim  does  not  lose
the will to live.

            In other words, I have shown how legality is actually  perceived
as disruptive of sociality; in this instance, a sociality that is marked  by
caste based patriarchies, such that compromise  is  actively  perceived,  to
put it in the words of a woman judge of a district  court,  as  a  mechanism
for ‘restoring social relations in society’.”

In this regard, two articles by Daniela  Berti  delve  into  a  sociological
analysis of hostile witnesses, noting how village compromises (and  possibly
peer pressure) are a reason for witnesses turning hostile.  In  one  of  his
articles[13], he writes:

“For reasons that cannot be explained here, even the people who  initiate  a
legal case may change their minds later on and pursue non-official forms  of
compromise or adjustment. Ethnographic observations of  the  cases  that  do
make it to the criminal courtroom thus provide insight  into  the  kinds  of
tensions  that  arise  between  local  society  and   the   state   judicial
administration. These tensions  are  particularly  palpable  when  witnesses
deny before the  judge  what  they  allegedly  said  to  the  police  during
preliminary investigations. At this very moment they often  become  hostile.
Here I must point out that the problem of what in common law terminology  is
called “hostile witnesses” is, in fact, general in India  and  has  provoked
many a reaction from judges and politicians, as well  as  countless  debates
in newspaper editorials. Although this problem assumes particular  relevance
at high-profile, well-publicized trials, where witnesses may be  politically
pressured or bribed, it is a recurring everyday situation with which  judges
and prosecutors of any small district town  are  routinely  faced.  In  many
such  cases,  the  hostile  behavior  results  from  various  dynamics  that
interfere with the trial's outcome  –  village  or  family  solidarity,  the
sharing of the  same  illegal  activity  for  which  the  accused  has  been
incriminated (as in case  of  cannabis  cultivation),  political  interests,
family pressures, various forms of  economic  compensation,  and  so  forth.
Sometimes the witness becomes “hostile” simply  because  police  records  of
his or her earlier testimony are plainly wrong. Judges themselves  are  well
aware that  the  police  do  write  false  statements  for  the  purpose  of
strengthening their cases.  Though  well  known  in  judicial  milieus,  the
dynamics just described have not yet been studied as they  unfold  over  the
course of a  trial.  My  research  suggests,  however,  that  the  witness's
withdrawal from his or her previous statement is a  crucial  moment  in  the
trial, one that clearly encapsulates  the  tensions  arising  between  those
involved in a trial and the court machinery itself.”

“In my fieldwork experiences, witnesses become “hostile” not only when  they
are directly implicated in a case filed by the police, but  also  when  they
are on the side of the plaintiff's  party.  During  the  often  rather  long
period that elapses between the police investigation and the  trial  itself,
I often observed, the party who has lodged the complaint  (and  who  becomes
the main witness) can irreparably compromise the case with the  other  party
by means of compensation, threat or blackmail.”


Present case  appears  to  have  been  stung  by  'culture  of  compromise'.
Fortunately,  statement of PW-4 in attempting to shield the  accused  Ramesh
has been proved to be false in view of the records  of  PGIMS,  Rohtak  and,
therefore, we held that High Court was right in discarding his testimony.

We, thus, do not find  any  merit  in  this  appeal,  which  is  accordingly
dismissed.

                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                               (AMITAVA ROY)

NEW DELHI;
NOVEMBER 22, 2016.
-----------------------
[1]   1961 SCR (3) 120
[2]   (2012) 4 SCC 722
[3]   (1999) 8 SCC 161
[4]   (2002) 8 SCC 83)
[5]   1958 SCR 552
[6]   (2008) 2 SCC 516
[7]   (2002) 6 SCC 81
[8]   (2006) 3 SCC 374
[9]   (2004) 5 SCC 518
[10]  (2012) 8 SCC 450
[11]  Report on 'witness identity protection and witness protection
programmes'
[12]  In Justice is a Secret : Compromise in Rape Trials”
[13]  Daniela Berti : Courts of Law and Legal Practice (pp. 6-7)

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