Statement of hostile witnesses is not to be brushed aside in toto

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 16th February 2020 

Baldev Singh & Ors. v. State of Himachal Pradesh (Criminal Revision no 190 of 2008)

Facts of the case: 

1. Petitioners were convicted under Sections 41 and 42 of Indian Forest Act by learned Judicial Magistrate First Class, Court No.1, Amb, District Una, H.P. in Criminal Case No.17-III-2000 vide judgment dated 22.11.2006 for transporting forest produce (timber) in violation of Rules 5 and 11 of H.P. Forest Produce Transit (Land Routs) Rules, 1978 after sunset and before sunrise in truck No. HP-19-6311 without any hammer mark or permit to transport the same.
2. Petitioners were sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- each and in default of payment of fine to further undergo simple imprisonment for two months.
3. Additional Sessions Judge, Fast Track Court, Una vide judgment dated 5.9.2008 passed in Criminal Appeal No. 12 of 2006 and Criminal Appeal No. 13 of 2006 upheld conviction but modified sentence to fine only and sentenced them with fine of Rs.2000/- each for violation of Rules 5 and 11 of Transit Rules and in default of payment of fine to undergo simple imprisonment for two months.
4. Aggrieved by the same the petitioners have approached before this court through this petition. 

Judgment:

1. Learned counsel for petitioners contended that lower courts below have failed to take notice of material contradictions and major discrepancies in statements of PW-2 Balbir Singh, PW-4 Gurdev Singh, PW-8 Gian Chand, PW-9 Harpal Singh and PW-13 Onkar Singh adversely affecting genesis of prosecution story raising doubt about presence of these witnesses at the place and time as claimed by prosecution rendering search and seizure suspicious. He argued that there are contradictions about manner of arrival of police and forest officials on the spot, timing of arrival, setting up Naka, return to Police Post and number of logs seized. He further contended that an independent witness i.e. driver of Jeep used by forest officials to reach on the spot was neither cited as witness nor examined in the Court for which adverse inference against prosecution in inevitable and also that independent witnesses cited and examined by prosecution have not supported the case of prosecution which renders veracity of official witnesses doubtful.
2. He further contended that want of support and corroboration by independent witnesses examined by prosecution and also for withholding examination an independent witness i.e. Jeep driver who was present on spot, testimony of official witnesses ought to have not been relied by courts below, particularly when there are material contradictions and major discrepancies in their statements rendering whole prosecution story a farce. He submitted that learned Courts below despite raising specific contention on aforesaid points, have not answered the same warranting interference of this Court.
3. Learned counsel relied on the judgment given by the Supreme Court in case of Raja and Ors. v. State of Karnataka^[1] where Supreme Court held that, statement of hostile witnesses is not to be brushed aside in toto and Court can consider evidence of hostile witness to corroborate other evidence on record. It is also clearly well settled that mere fact that a witness is declared hostile does not make him unreliable witness so as to exclude his evidence from consideration altogether but the said evidence remains admissible in the trial and there is no legal bar to base conviction or acquittal upon testimony of hostile witness if corroborated by other reliable evidence. 
4. It is settled law that evidence of official witnesses is not to be disbelieved or discarded merely for reason that they are official witnesses. Presumption is that every witness is impartial and independent unless proved contrary. There is no presumption for doubting credibility of official witnesses in principle. Statements of official witnesses can be basis for conviction of accused. However, before basing conviction on evidence of official witnesses, strict scrutiny. 
5. Hon’ble Supreme Court in case Yanob Sheikh Allias Gagu Vs. State of West Bengal^[2], it has observed that in order to prove its case beyond reasonable doubt, the evidence produced by the prosecution has to be qualitative and may not be quantitative.

Hon’ble Supreme Court come to conclusion that, there is no illegality, or irregularity in impugned judgment in arriving at conclusion that petitioners are guilty for committing offence charged. Hence, the judgment of the trial Court with modified sentence by learned Additional Sessions Judge is upheld. Accordingly, present petition fails and as such is dismissed. Records of the Court below be sent back immediately.

^[1] (2016) 10 SCC 506

^[2] (2013) 6 SCC 428