In CRA-S-723-SB-2005 (O&M)-PUNJ HC- P&H HC allows appeal in decade-old robbery case as complainant & sole eye-witness turned hostile and prosecution miserably failed to prove its case Justice Jasgurpreet Singh Puri [26-05-2022]

Read Order: Paramjeet @ Kala and Other v. State of Haryana 

LE Correspondent

Chandigarh, May 30, 2022: The Punjab and Haryana High Court has allowed an appeal against the conviction of accused persons in a decade-long robbery case and applied the law laid down by the Supreme Court in V.K. Mishra and another Versus State of Uttarakhand and another wherein it was held that if the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo moto make use of statements to police not proved in compliance with Section 145 of the Evidence Act.

The Bench of Justice Jasgurpreet Singh Puri held that during the cross-examination of the complainant and the sole eye-wtiness, after they were declared hostile, their respective statements made before the Police were read over and explained to them, but  apart from that neither the relevant portion of the statement was pointed out nor the same was reproduced by the prosecution and, therefore, the same was in violation of the above-stated law laid down by the Supreme Court. 

The case stemmed from a complaint alleging that three young boys took Rs. 18,000/- from the complainant’s shop while holding the complainant at gunpoint. It was also alleged in the complaint that while retreating, the accused snatched a bag from one trader who was present there (eye-witness). Resultantly, an FIR was registered under Sections 392, 397, 398 IPC and Section 25 of the Arms Act. 

The charges were framed against all the three accused by the Additional Sessions Judge, Bhiwani under Sections 392 and 398 IPC. So far as the second appellant-Vijay (since deceased) was concerned, charge under Section 25 of the Arms Act was also framed. The Additional Sessions Judge, Bhiwani found that all the three accused committed robbery and they were thus convicted under Section 392 IPC read with Section 398 IPC and the second appellant- Vijay (since deceased) was convicted under Section 25 of the Arms Act as well.

The case of the appellants’ counsels was that complainant was declared a hostile witness as rather than supporting the prosecution version, he deposed that about 4-5 persons had come on his shop and after giving a slap on his face, they demanded money and took out currency notes of Rs. 18,800/- but thereafter they left the currency notes and police party had also arrived at the spot. The Counsel further argued that in a similar manner, the eye witness also turned hostile by stating that he did not witness the know anything about the occurrence and that the accused had not snatched currency notes from the complainant. 

Also, it is to be noted that in this case, there were two Investigating Officers (IOs). The first IO who stepped into the witness box stated that he recorded the formal FIR based on the above-mentioned complaint and thereafter three days police remand was taken. He further stated that all the three accused made disclosure statements and that no independent witness was joined during the investigation as no one was available at that time. Thereafter, another IO took the charge and he recorded another set of disclosure statements based on which the cash amount, pistols and cartridges etc. were recovered. 

It was further submitted by the counsels that no independent witness was examined in the present case. They further submitted that there were material contradictions in the disclosure statements recorded by the two different Investigating Officers. 

The State Counsel, on the contrary, submitted that the appellants were habitual offenders and the mere fact that the complainant and the eye witness turned hostile would not mean that the prosecution was not able to prove its case. 

At the very outset, the Court reflected on the law governing hostile witnesses and for this very purpose, reference was made to the Apex Court in V.K. Mishra and another Versus State of Uttarakhand and another wherein it was held that under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. 

Thus, the Top Court held that if the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo moto make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction. 

Reference was also made to the case of Rohtash Kumar Versus State of Haryana, wherein it was observed that it is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him and that the same can be accepted to the extent that their version is found to be dependable upon a careful scrutiny thereof. 

Coming to the present case, finding substance in the arguments of the counsels for the appellants, the Court observed that after the complainant and the eye-witness were declared hostile and during their cross-examination the statements that they made before the Police  were, respectively, read over and explained to them. However, the Court noted that neither the relevant portion of the statement was pointed out nor the same was reproduced by the prosecution and, therefore, the same was in violation of the judgment of the Supreme Court in V.K. Mishra (Supra). 

Apart from this, the Cout was also of the view that since the entire case of the prosecution was rested upon the disclosure statements and statement made to the police, none of those statements were referred to at the time of cross-examination, and therefore, there was no ground or occasion to disbelieve the aforesaid two witnesses and it could not be said that merely because they were declared hostile that they should not be relied upon. 

Further, on the examination of one of the investigating officers out of the two of them, the Court opined that although recovery is admissible in evidence under Section 27 of the Indian Evidence Act but there is no reason or justification coming forward as to why the second Investigating Officer did not step into witness box. Also, the Court sensed suspicion in the prosecution version as it was not able to prove as to how the complainant knew the names of the accused (as accused were allegedly named in his complaint).

Therefore, the Court came to the conclusion that the entire case of the prosecution rested on the disclosure statements which were not proved by the prosecution. The Court added that these statements were never put to the complainant and eye witness during their cross-examination and, therefore, the story put forward by the prosecution with regard to disclosure of cash, arms etc. was highly doubtful especially in view of the fact that there was no reason as to why two disclosure statements were recorded by two different Investigating Officers on successive dates coupled with the fact as to why second Investigating Officer was not examined and why the independent witnesses were also not joined during the investigation and recovery.  

Accordingly, the appeal was allowed.