G. Yethirajulu, J.
1. This is a reference made by a Division Bench presided by Brother Justice J. Chelameswar and Brother Justice B. Seshasayana Reddy to this Full Bench regarding the issue:
Whether the defence could rely upon any statement made by a witness, who is declared hostile by the prosecution in the absence of any specific definite line of defence?
2. The appellant is one of the four accused in Sessions Case No. 344 of 2000 on the file of the Additional Sessions Judge, Hindupur. He was tried along with other accused for the offences punishable Under Sections 452 and 302 read with Section 34 IPC. The trial Court convicted the appellant for the offences Under Sections 302 and 450 IPC and acquitted the other accused. The appellant being aggrieved by the conviction and the sentence imposed by the trial court, preferred the present appeal challenging its validity and legality.
3. According to prosecution, the appellant and other accused trespassed into the house of the deceased Harijan Aswarthamma on 5-8-1999, poured kerosene on her and set her on fire. The deceased ran out of the house with flames. The neighbours of the deceased including P.Ws. 4 to 6 put off the flames. On the information given by P.W. 3, the husband of the deceased, P.W1-the Village Administrative Officer and P.W.2-the Sarpanch went to the deceased and recorded her statement covered by Ex.P-1. It was sent to Station House Officer, Parigi, Anantapur District. It was registered as Crime No. 35 of 1999 initially Under Sections 448 and 307 read with Section 34 IPC. The deceased was shifted to the Government Hospital, Hindupur. On a requisition from P.W.15-the duty Medical Officer, the Judicial Magistrate of First Class, Hindupur, who was examined as P.W. 14 proceeded to the hospital and recorded the dying declaration of the deceased, covered by Ex.P-21. Subsequently, on 6-8-1999 at about 9-15 a.m. the deceased succumbed to the burn injuries. P.Ws. 3 and 7 to 10 who are the husband, mother, father and brothers of the deceased respectively turned hostile and did not support the prosecution. They have gone to the extent of saying that they were not examined by the Police. The suggestions given to them that the deceased was suffering from some mental imbalance from her childhood and she attempted to commit suicide on an earlier occasion, were accepted by them. Therefore, it was argued before the Division Bench that in view of the evidence of the hostile witnesses that the deceased was mentally imbalanced, the benefit of doubt must be given to the appellant, ignoring the version given by the deceased in the dying declaration.
4. The learned counsel for the appellant submitted that in view of the settled position of law, the dying declarations have to be scrutinized carefully, before passing a conviction on the accused, as the maker of those statements was not available for cross-examination.
5. The learned Public Prosecutor while relying on certain judgments of the Supreme Court submitted to the Division Bench that the evidence of hostile witnesses could not be relied upon by the defence for raising a doubt in the mind of the Court and any statement favourable to the defence made by a witness, who is declared as hostile could only be used as a corroborative piece of evidence, if there is a specific defence taken by the accused. The Division Bench was of the view that the judgment rendered by the Supreme Court in Parveen v. State of Haryana 1997 SCC (Crl.) 63 is in conflict with the judgment of the Supreme Court in State of U.P. v. Ramesh Prasad Misra AIR 1966 SC 2766. Therefore, the Division Bench deemed it appropriate that the matter be heard by a Bench of appropriate strength, regarding the issue mentioned supra.
6. In pursuance of the opinion expressed by the Division Bench, the matter is referred to this Full Bench to answer the issue covered by the reference.
7. in the light of above set of facts and circumstances, the point for consideration is:
Whether the defence could rely upon any statement made by a witness, who is declared hostile by the prosecution in the absence of any specific tine of defence?
8. The first question is whether the evidence of a hostile witness is liable to be totally rejected? The Supreme Court in several judgments held that the evidence of a hostile witness could not be totally rejected, if given in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence, which is consistent with the case of the prosecution or defence may be accepted. The following are some of the judgments rendered by the Supreme Court in this regard.
9. In Sat Paul v. Delhi Administration the Supreme Court while considering the scope of Section 145 of the Indian Evidence Act, held that when a witness is examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be discarded as a whole. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.
10. In Rabindra Kumar Dey v. State of Orissa the Supreme Court while considering Section 154 of the Indian Evidence Act held that whenever a witness called by a party is sought to be cross-examined, the Court must exercise its discretion judiciously. Section 154 of the Indian Evidence Act is the only provision under which a party calling its own witnesses may claim permission of the Court to cross-examine them.
11. Section 154 of the Indian Evidence Act, 1872 reads thus:
154. Question by party to his own witness: The Court may, in its discretion, permit the person who calls a witness to put any questions to him, which might be put in cross-examination by the adverse party.
12. Section 154 does not in terms or by necessary implication confine the exercise of the power by the Court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely to the Court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in committing Court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the Court cannot, during the course of his cross-examination, permit the person calling him as a witness to put questions to him or might be put in cross-examination by the adverse party.
13. Before a Court exercises discretion in declaring a witness hostile, there must be some material to show that the witness has gone back on his earlier statement or is not speaking the truth or has exhibited an element of hostility or has changed sides and transfers his loyalty to the adversary. Furthermore, it is not merely on the basis of a small or insignificant omission that the witness may have made before the earlier authorities that the party calling the witness can ask the Court to exercise its discretion.
14. In Syad Akbar v. State of Karnataka , the Supreme Court held that declaring a witness hostile is no ground by itself to reject his testimony in toto. His testimony not shaken on material points in cross-examination cannot be brushed side.
15. In State of U.P. v, Ramesh Prasad Misra (2 supra) the Supreme Court held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.
16. In Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.) 112 the Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance.
17. In Bhagatram v. State of M.P. 1990 Crl.L.J. 2407 (M.P.) a Division Bench of the Madhya Pradesh High Court held as follows:
The declaration of a witness as hostile one, has not the effect of washing away his entire evidence and acceptable portions can be acted upon.
18. In Profulla Kumar Sarkar v. Emperor AIR 1931 Cal. 401 (F.B.) a Full Bench of the Calcutta High Court held as follows:
The evidence of a hostile witness is not to be rejected either in whole or in part. It is not also to be rejected so far as it is in favour of the party catling the witness, nor is it to be rejected so far as it is in favour of the opposite party. The whole of the evidence so far as it affects both parties favourably or unfavourably must go to the jury for what it is worth.
19. In Khujji v. State of Madhya Pradesh 1991 SCC (Cr.) 916, the Supreme Court held as follows:
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 a witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.
20. The above legal position makes it clear that the evidence of a prosecution witness, who turned hostile need not be totally rejected and it can be accepted to the extent his version is found to be dependable. The accused may also take advantage of such portion of the evidence of the hostile witness, which is contradictory to the prosecution version.
21. After anxious consideration of the submissions made by the learned counsel for the appellant and the (earned Public Prosecutor, we are inclined to apply the principle laid down by the Supreme Court in the decisions mentioned above and concur with the view expressed by the Full Bench of the Calcutta High Court (Profulla Kumar v. Emperor AIR 1931 Calcutta 401 (F.B.)) in this regard.
22. The next aspect is whether the defence, in the absence of specific defence, could rely upon any statement made by a witness who is declared hostile?
23. It is an established position of law that the accused need not take any defence in a criminal case filed against him. He may also take more than One defence. He may take advantage of every lapse in the case of the prosecution and may elicit any information from the prosecution witnesses to probabiiise his defence, if any taken, or elicit such information, which is contradictory to the version of the prosecution. The accused may take advantage of the information elicited from the prosecution witnesses to create a doubt in the mind of the court whether the prosecution version is true and may take the benefit of such doubt.
24. In Munshiram and Ors. v. Delhi Administration AIR 1968 SC 702 the Supreme Court while considering the plea of private defence held;
It is well settled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from the material on record.
25. In the case covered by the above decision, the appellants have not taken the plea of private defence in their statement Under Section 342 Cr.P.C. (old) but necessary basis for that plea had been laid in the cross-examination of the prosecution witnesses as well as by adducing defence evidence.
26. In Re Jogali Bhaigo Naiks AIR 1927 Mad. 97, the Madras High Court held that the burden of establishing the plea of private defence is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material available on record.
27. In Sanjib Kumar Das v. State of Tripura 1994 (3) Crimes 411, the Gowhati High Court held as follows:
If a plaintiff calls a witness to prove a single, even the simplest fact connected with the case, the defendant is at liberty to cross-examine him in every issue by putting leading questions, to establish, if he can, his entire defence. Section 143 of the Indian Evidence Act permits putting leading questions in the cross-examination by confining to questions relevant to the case.
28. The Gauhati High Court delivered the judgment in Sanjib Kumar Das (12 supra) by referring to the judgment of a learned single Judge of the Calcutta High Court in Bishnu Murmoo v. Radhanath Patra 1951 (1) Calcutta 87 wherein the learned Judge of the Calcutta High Court held as follows:
The object and scope of cross-examination is two folder to weaken, to qualify or destroy the case of the appellant; and to establish the party's own case by means of his opponent's witnesses. It is not confined to matters proved in chief, the slightest direct examination, even for formal proof, opens up the whole of cross-examiner's case. In cross-examining a witness, the cross-examining lawyer not only tries to bring out contradictions in the evidence given in the examination-in-chief, but he also tries to build up his case by establishing new facts.
29. In Bhagwan Singh v. State of Haryana , the Supreme Court held:
Where the Court gives permission to the Prosecutor to cross-examine his own witness, thus characterizing him as a hostile witness, that fact does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.
30. The Supreme Court further held as follows:
The fact that the witness was declared hostile did not completely efface his evidence. It remained admissible in the trial. Since his testimony was corroborated by other evidence, there was no legal bar to base his conviction upon it.
31. Whenever an accused is intending to introduce a new story, he has to formulate a specific line of defence and introduce the same, through definite suggestions to the prosecution witnesses and elicit favourable answers from them. He may also adduce oral or documentary evidence in support of his defence. To improbabilise the story of the prosecution regarding the commission of the offence, the accused cannot rely on a stray answer given by a witness without laying sufficient basis for it. If the accused succeeds in getting favourable answers from hostile witnesses, which lead to a doubt in the story of the prosecution, he can get the benefit of doubt. But if the accused takes a plea that he is incapable of committing such offence or that the deceased himself/herself was responsible for the occurrence, he has to elicit definite information in that regard in the cross-examination, including the information about the previous incidents of the deceased resorting to such course or the incapacity of the accused in committing such offence. If the accused, who fails to take a specific defence at any stage of the case by introducing a specific theory either in the cross-examination of the hostile witnesses or by examining witness on his behalf he is not entitled for the benefit of such favourable answers without there being a specific defence in that regard.
32. To mention some examples, If an accused pleads that he exercised the right of Private Defence, it must be proved either through a definite plea or through the totality of the circumstances of the case. If an accused pleads alibi, he must place definite material to establish that he was not present at the scene of offence at the time of occurrence. If the accused pleads impotency in a rape case, he has to prove through medical evidence, that he is incapable of committing rape. If the accused pleads that the deceased had the tendency of committing suicide, he has to place definite material to prove the earlier instances and establish that the offence alleged is not a homicidal one. If the benefit of doubt is given for whatever little material the accused elicits from the prosecution witnesses through suggestions, no accused could be convicted and no offence could be made out. The information elicited from the prosecution witnesses must change the course of prosecution story and affect the prosecution version in material particulars. If there is any independent evidence either oral or documentary through the witnesses, whose truthfulness is not doubtful, if there are surrounding circumstances to probabilise the defence version and if there is any information from the hostile witnesses supporting the said version, under those circumstances only the evidence of the hostile witness can be taken into consideration. Since the hostile witness is not a reliable person, who resorts to change the version from time to time, the answers given by him in favour of the accused have to be scrutinized carefully to come to a conclusion whether any reliance can be placed on the information given by the hostile witness. The evidence given by a hostile witness need not be totally rejected, but at the same time such portion of the evidence, which is getting corroboration from other evidence could only be considered before coming to a conclusion whether the accused is entitled for the benefit of doubt.
33. The accused must introduce a definite version of defence and in order to establish the said defence he must show that the preponderance of probabilities are in favour of such plea on the basis of the material available on record. Without there being sufficient material in support of such defence, the accused cannot rely on it.
34. If there is independent evidence, other than the evidence of the hostile witnesses, which is sufficient to prove the guilt of the accused beyond all reasonable doubt, the version of the defence, which is shaky in nature, can be ignored and no weight need be given to it. The information gathered by the accused from the hostile witnesses will be helpful to him, only when there is no sufficient independent evidence leading to a definite conclusion that the guilt of the accused is proved beyond all reasonable doubt and in such circumstances only the accused can fall back on such answers, which were given by the hostile witnesses favourable to the accused, otherwise such answers assume no importance and they are of no effect on the result of the case. The reference is accordingly answered.
35. The matter be posted before appropriate Bench for disposal.