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RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No.114 of 2016 1. Pramod Sharma 2. Balveer Singh Negi 3. Brijmohan @ Bijji

…. Appellants Versus

State of Uttarakhand

.….Respondent

Mr. Lokendra Dobhal, Advocate with Mr. Pawan Mishra and Mr. V.P. Bahuguna, Advocates for the appellants/convicts. Mr. Amit Bhatt, Deputy Advocate General for the State of Uttarakhand.

Reserved on: 10.04.2018 Delivered on: 14.05.2018 Coram : - Hon’ble Rajiv Sharma , J. Hon’ble Alok Singh, J. Per: Hon’ble Rajiv Sharma , J. This Criminal Appeal has been instituted against the judgment and order dated 17.03.2016 rendered by learned Ist Additional Sessions Judge, Dehradun in Sessions Trial No. 133 of 2008 whereby the appellants were charged with and tried for the offences under Section 302 IPC read with Section 34 IPC. The appellants were convicted and sentenced under Sections 302 read with Section 34 of IPC. The appellants were sentenced to undergo life imprisonment and to pay fine of Rs.20,000/- each under Section 302 read with Section 34 of IPC and in default of payment of fine, to undergo additional rigorous imprisonment for a period of two years. The half of the fine was directed to be given to the mother of the deceased as compensation under Section 357 IPC. 2.

The case of the prosecution, in a nutshell, is

that PW-4 Smt. Padma Mishra (mother of the deceasedMonu Mishra) lodged the first information report to the

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effect that on 20.07.2008 she was present in her house. PW-1 Manoj who is resident of Patel Nagar came to her house and told that her son Monu Mishra and Chhotu @ Krishna had gone to bring CD from Rana Sinku’s shop. Manoj and her son turned towards the street to urinate. The appellants appeared on the spot. 3.

Appellant Pramod was carrying some weapon

made of iron. Appellant Brij Mohan @ Bijji was carrying iron rod and appellant Balveer Singh Negi was carrying the hockey. They attacked him. Manoj and Krishan tried to save him. Appellants also tried to attack them but both of them escaped from the spot. Her son was taken to Doon Hospital. Thereafter, he was referred to Indresh Hospital where he was declared dead. 4.

The dead body was sent for post mortem

examination. PW-5 Dr. K.C. Pant has conducted the post mortem

report.

The

first

information

report

was

registered. The matter was investigated. According to the Doctor, the cause of death was due to shock and hemorrhage as a result of ante-mortem injuries. The Challan

was put

up

before

the

trial Court

after

completing all the codal formalities. 5.

In order to prove its case, the prosecution has

examined as many as nine witnesses. 6.

The

statements

of

appellants

were

also

recorded under section 313 Cr.P.C. They have denied the case of prosecution and claimed to be tried. According to them, they were falsely implicated. They have produced one witness. After conclusion of the trial, the appellants were convicted and sentenced, as noticed hereinabove. 7.

Mr. Lokendra Dobhal, Advocate appearing on

behalf of the appellants, has vehemently argued that the

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prosecution has failed to prove its case against the appellants. 8.

Mr.

Amit

Bhatt,

Dy.

Advocate

General

appearing on behalf of the State has supported the impugned judgment and order dated 17.03.2016. 9.

We have heard learned counsel for the parties.

We have also gone through the impugned judgment and lower court records carefully. 10.

PW-1 Manoj is the eye witness. He testified

that his friend’s name was Monu Mishra. He was with Monu Mishra on 20.07.2008. They had gone to buy a CD from Rana’s Shop. They were coming back. They turned towards the street to urinate. The appellants namely Pramod Sharma, Brij Mohan and Balveer Singh Negi were standing there. Pramod Sharma hit Monu Sharma from behind on his head with rod. They were using abusing language. Other appellants also started beating him. He knew the appellants since he saw them going to Monu Mishra’s Gym. He identified the appellants in the Court also. This incident happened between 08.00 to 08.30 in the night. Street Light was on. He has seen in the street light that the appellants were having weapons. Balbir Singh Negi was carrying Hockey. Brij Mohan was carrying one iron rod and Pramod was also carrying iron rod. Kishan @ Chhotu also reached the spot. He immediately went to the house of Monu Mishra. He narrated the incident to his mother (PW-4 Padma Mishra). When they came back, they saw that Monu Mishra’ body was lying in the pool of blood. He took him to Doon Hospital and thereafter to Indresh Hospital. Before this incident, Pramod Sharma had shot upon Sonu Mishra who was elder brother of Monu Mishra. PW1 Manoj was cross examined. He had seen the appellants coming to Gym occasionally owned by Monu Mishra’s

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family. There was an electric pole. The light was blinking. According to him, at that time, the light was on. He recognized them since they have also tried to attack him. The street where incident has happened was 10-12 feet wide. He has seen the appellants from the distance of 810 feet. He was well conversant with the directions. Victim was wreathing in pain. Many people assembled at the spot. He took Monu Mishra to Doon Hospital. Thereafter, injured was referred to Indresh Hospital. He was declared dead at Indresh Hospital. Sonu Mishra and Monu Mishra are brothers. He had friendly relationship between them. His clothes were also stained with blood. Blood stained clothes were not taken into possession by the Investigating Officer. 11.

PW-2 Krishna deposed that on 20.07.2008 he

has taken injured Monu Mishra to Doon Hospital. He was referred to Indresh Hospital. He was declared brought dead. He did not know who has beaten up Monu Mishra. He was declared hostile. He was cross examined by learned Public Prosecutor. 12.

PW-3 Raj Singh Chauhan has signed the

Panchnama. 13.

PW-4 Padma Mishra is the mother of deceased.

She testified that appellants were bearing a grudge against her sons. Their family members had gone to jail. Thereafter, Ram and Shyam were appointed to run Gym. They are brothers of Pramod Sharma. They had disposed of the Gym’s instruments. Pramod Sharma shot her son Sonu Mishra. Pramod Sharma was sent to the Jail. On 20.07.2008, her son Monu Mishra, in the company of Manoj and Krishna @ Chhotu, had gone to bring CD. They stopped to urinate. The appellants were present on the

spot. Pramod Sharma was carrying iron rod.

Brijmohan @ Bijji was also carrying iron rod. Balveer Singh Negi was carrying hockey stick. They started

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abusing her son. They had also beaten up her son Monu. Thereafter, Manoj came to her house and narrated the incident. She reached the spot. Injured-Monu was taken to Doon Hospital. Thereafter he was referred to Indresh Hospital where Monu was declared dead. Monu has told her that he was beaten up by Pramod, Brij Mohan @ Bijji and Balveer Singh Negi. In her cross examination she deposed that Monu had gone on foot to bring CD in the company of Manoj and Krishna. They also reached at the spot. The place of incident was 150-200 steps away from her house. Blood was found on the spot where her son was beaten up. Her Saree was also stained with blood. She told the Investigating Officer that her son was speaking at the time when she reached the spot. Her son told her the names of appellants while he was being taken to Doon Hospital in Auto rickshaw. 14.

PW-5 Dr. K.C. Pant has conducted the post

mortem examination. He has noticed following injuries on the body of the deceased during the course of post mortem examination:

1. Lacerated wound of size 3 cm x 2 cm x bone deep in back of head x bone deep. 2. wound 17 cm above front right shoulder & 13cm above from right ear pinna. 3. abraded contusion on left eye of size 7 cm x 12 cm on eye and subconjunctival hemorrhage. 4. multiple lacerated wound of multiple size near 4 cm x 0.5 cm in “7” shape. 4 to 5 in number vertical size 2 cm x 2.5 cm to cm x 0.5 cm in size or muscle deep on lateral side of left eye. 5. abraded contusion of size 3 cm x 2 cm on left ear along with lacerated would of size 1 cm x 0 cm or back of left ear. According to him, these injuries could be received by hard blunt weapon i.e. iron rod. He proved the post mortem report. The cause of death was shock and hemorrhage as a result of ante-mortem injuries.

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15.

PW-6

Smt. Shashi Prabha Tomar has

proved FSL report. According to the report duly proved by the expert, blood was found on the cap. The human blood was found on trousers, T-shirt and Baniyan (vest). At times, there may not be blood stains on the weapons of offence, if it is used very quickly and has hit the skull or bone. 16.

PW-7 Shankar was declared hostile.

17.

PW-8 S.I. Pramod Kumar Negi has registered

the first information report. 18.

PW-9 S.I. Yogesh Chand Upadhyay was the

Investigating Officer. He has prepared spot map and arrested the appellants. He recorded the statements of the witnesses and took into possession the blood soaked soil and iron rod. In his cross examination, he has deposed that PW-4 Padma Mishra has taken her son by placing his head on her lap. Her saree was stained with blood, however, he has not taken into possession the saree. 19.

The appellants also produced one witness to

support their case. 20.

DW-1 Lalit Sood deposed that he knew the

appellant No.1-Pramod Sharma. The case was registered against him in the year 2008. He came to Saharanpur on 20.07.2008. He was sitting with him at Saharanpur till 09.00 p.m. His father-in-law told him that his son-in-law was falsely implicated

in this case. In his cross

examination, he deposed that his father-in-law told him at 09.30 p.m. on 20.07.2008 that his son-in-law was falsely implicated in the case. 21.

Learned counsel for the appellants has argued

that there was delay in lodging the first information report. There was no inordinate delay in lodging the first

7

information report. FIR was registered promptly at behest of PW-4 Padma Mishra. 22.

It is evident from the discussions hereinabove

that on 20.07.2008 Manoj and Monu Mishra had gone to bring CD. When he was coming back with his friends, they stopped to urinate. The appellants were armed with iron rods and hockey stick. They attacked Monu Mishra. They also attacked PW-1 Manoj. He immediately came to the house of Monu Mishra and narrated the incident to her mother. PW-4 Padma Mishra came to the spot. Monu was lying in the pool of blood. He was taken initially to Doon Hospital in Auto rickshaw. Thereafter he was referred to Indresh Hospital where he was declared dead. PW-1 Manoj is the eye witness of the incident. He has categorically deposed that Pramod Sharma has hit the deceased from behind with rod. Thereafter, he was attacked by other appellants. He was also attacked. He escaped to save his life He narrated the incident to Monu Mishra’s mother (PW-4 Padma Mishra). PW-4 Padma Mishra has categorically deposed that Manoj has told her the manner in which the incident happened. She reached the spot. She has deposed that her son has made a dying declaration while he was taken to hospital in autorickshaw that the appellants have attacked him. 23.

Learned counsel for the appellants argued that

PW-1 Manoj could not recognize the appellants since there was no street light. PW-1 Manoj stated that there was an electric pole. There was sufficient light. He recognized them in the street light. He was well acquainted with the appellants since he used to visit Gym owned by Sonu Mishra. The appellants also used to go to Sonu Mishra’s Gym. He recognized them in the Court also. He has given description about their height.

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24. argued

Learned counsel for the appellants has also that

there

was

enmity

which

led

to

the

registration of false FIR. However, there is no merit in the contention of the learned Advocate. The appellantPramod Sharma was also tried under section 307 IPC for attempt to kill Sonu Mishra who is elder brother of the deceased-Monu Mishra. He was released from Jail on 19.07.2018. Pramod Sharma alongwith two friends have attacked Monu Mishra on 20.07.2008 leading to his death. 25.

The statements of PW-1 Manoj and PW-4

Padma Mishra are duly corroborated by PW-5 Dr. K.C. Pant. He has proved the post mortem report. According to him, the cause of death was shock and hemorrhage due to ante mortem injuries. The deceased has made a dying declaration before his mother that appellants have attacked him. The statement of DW-1 Lalit Sood does not inspire

confidence.

According

to

him,

he

was

at

Saharanpur when Pramod Sharma visited his in-laws. According to DW1 Lalit Sood, his father-in-law told him at 09.30 p.m. that his son-in-law was falsely implicated in the matter. However, the fact of the matter is that FIR was registered after 11.00 p.m. Thus, this fact could not be narrated by his father-in-law that his son-in-law was falsely implicated. The statement of PW-1 Manoj is to be read in entirety. He has categorically deposed that the street light was on, though it was blinking. In his cross examination, he disclosed that there was no street light. There were bound to be some contradictions in the statement, since the cross-examination was done after nine months. The examination-in-chief was held on 21.04.2010

and

cross

examination

was

held

on

24.01.2011. PW-4 Padma Mishra deposed that PW-1 Manoj told him that the appellants have given beating to her son. PW-4 Padma Mishra has told the Investigating

9

Officer that her son Monu has made dying declaration. Learned defense counsel has not cross examined the Investigating

Officer

on

this

aspect.

The

relations

between both the families were strained. Appellant No.1Pramod Sharma was earlier prosecuted under Section 307 IPC for making attempt on the life of elder brother of Monu Mishra. 26.

The rod was also recovered by Investigating

Officer during the investigation. The fact that another rod and hockey stick were not recovered from the spot will not dent the case of the prosecution. 27.

The appellant no.1-Pramod Sharma has also

taken plea of alibi but he could not prove the same. The burden was upon him to prove the plea of alibi. 28.

In AIR 1981 SC 1021, in the case of “State of

Haryana Vs. Sher Singh and others”, their Lordships of the Hon’ble Supreme Court have held that plea of alibi, and burden to prove it, is on the accused pleading it. Their lordships have held as under:“4. When an accused pleads alibi, the burden is on him to grove it under Section 103 of the Evidence Act which provides: “103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations: (a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C.A must prove the admission. B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it. In this case defence did not adduce any evidence to prove the alibi. On the contrary the evidence of P.W. 11, Lila, is that on 21st October, 1973, all the accused were produced by Lalji, the brother of the wife of respondent, Sher Singh in village Nand Karan Majra around 8 a.m., when they were arrested. This was in presence of P.W. 11 and several others. Police had been there the witness says, from October 17 to 20, 1973. This evidence of P.W. 11 remains unrebutted. The plea of the respondents that they had been elsewhere at the time of the occurrence and returned to the place of occurrence by themselves on

10

October 17, when they were arrested by police, is untrue.”

29.

In AIR 1984 SC 63, in the case of “State of

Maharashtra vs. Narsingrao Gangaram Pimple”, their Lordships of the Hon’ble Supreme Court have held that it is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. Their lordships have held as under:“18. The High Court seems to have devoted a major part of its judgment to the various case diaries produced before the court in order to establish that the accused was not present at the police station either on the 9th or on the 13th of April 1972 when the first two demands were made. According to the High Court this gave a sufficient alibi to the respondent from which it could be safely inferred that if he was not present at the police station, there could be no occasion for him to make any demand for bribe from the complainant. Assuming that the recitals in the said case diaries are admissible (though we have serious doubts about it) yet it does not at all exclude the presence of the respondent at the Ambarnath police station on the 9th and 13th because he was not sent away to a place situated far from Bombay but was in some other police station within a radius of a few miles only. Even if he was deputed to some other place he was in possession of a jeep and he could visit the Ambarnath police station for a few minutes on any of these dates. It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. Such, however, is not the case here. Therefore, the discussion of the case diaries, which engaged a substantial portion of the High Court judgment was really an exercise in futility.”

30.

In AIR 1997 SC 322, in the case of “Binay

Kumar Singh vs. State of Bihar”, their Lordships of the Hon’ble Supreme Court have held that strict proof is required for establishing plea of alibi. Their lordships have held as under:“22. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence take place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be

11

considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of Uttar Pradesh 1981CriLJ618, State of Maharashtra v. Narsingrao Gangaram Pimple 1984CriLJ4. 24. Of course, Sri UR Lalit, learned Senior Counsel has vehemently argued that the courts should have presumed the genuineness of all official records and accepted the proof as more than reasonably sufficient to discharge their burden. We shall not forget that presumption is only a rule in the realm of burden of proof and the reasons concurrently weighed with the two courts below for disbelieving the plea of alibi put forth by these two appellants are quite sturdy. At any rate, in an appeal by special leave granted under Article 136 of the Constitution, this Court would not be inclined to upset the finding of fact based on such weighty reasons, more so when the reasons advanced by both the courts in support of the finding appeal to us also. 26. Sri Sushil Kumar, learned Senior Counsel arguing for the appellant Binay Kumar Singh (A-34) perused the plea of alibi put forth by that accused in the trial court. He examined one Dr. Binod Bihari Sinha who was Associate Professor of Medicine at Nalanda Medical College, Patna as DW-36. The witness of course, said that appellant Binay Kumar Singh was admitted as an in-patient of the said Medical College Hospital for appendicitis and was not in a position to move out of his bed even on 6.2.1980. The witness said this with reference to the Bed-head Ticket produced by him. But the cross-examination of DW-6 has exposed the falsity of his evidence. That a patient admitted for acute case of appendicitis in a Medical College Hospital was never shown to a surgeon creates a serious doubt as to whether this appellant was really admitted in that hospital as claimed by DW-6. The witness said in cross-examination that the patient left the hospital soon after his admission but again returned on the next day. PW-6 also admitted that the Bed-head Ticket referred to by him did not contain any entry made by him. No mark of identification of the patient was noted in such Bedhead Ticket and DW-6 had no previous acquaintance with this appellant. No other document was produced to support the plea. On such a meagre and unsatisfactory evidence, the two Courts below have rightly discarded his plea of alibi.”

31.

The dying declaration was made by Monu

before PW4 Padma Mishra while he was taken to the

12

hospital in an auto-rickshaw. There could not be any Magistrate or any Doctor at that time. The deceased was declared brought dead by Indresh Hospital. Thus, the dying declaration made by deceased was not required to be corroborated. 32.

In AIR 1985 SC 416, in the case of “State of

Uttar Pradesh vs. Ram Sagar Yadav and others”, their Lordships of the Hon’ble Supreme Court have held that it is well-settled that, as a matter of law, a dying declaration can be acted upon without corroboration. The primary effort of the court has to be to find out whether the dying declaration is true. Their lordships have held as under:“13. It is well-settled that, as a matter of law, a dying declaration can be acted upon without corroboration. See Khushal Rao v. The State of Bombay 1958CriLJ106; Harbans Singh v. State of Punjab 1962 Supp. 1 SCR 104; Gopalsingh v. State of M.P. 1972CriLJ1045. There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration. The case before us is a typical illustration of that class of cases in which, the Court should not hesitate to act on the basis of an uncorroborated dying declaration. Brijlal had no reason for involving the policemen falsely for having assaulted him. There was no possibility of anyone tutoring him, for the simple reason that he was in the exclusive custody of the policemen of Hussainganj Police Station, It is the respondents who were in a position to exert influence over him. No one else had access to him, which not only excludes the possibility of his being tutored, but which also excludes the possibility that he was assaulted by any one else. Indeed, the circumstances of the case leave no doubt that the dying declaration made by Brijlal to Shri Nigam is true in every respect. We consider it safe to accept the statement made by Brijlal to Shii Nigam that he was beaten by the 'Darogah and the constables' of the Hussainganj Police Station.”

33.

In (2009) 13 SCC 614, in the case of

“Kamalavva and another vs. State of Karnataka”, their Lordships of the Hon’ble Supreme Court have held that certification is mere rule of prudence and not the ultimate test as to whether or not dying declaration is

13

truthful or voluntary. Their lordships have held as under:“32. The technical objection raised by the counsel for the appellant regarding the unavailability of doctor's certification and endorsement as to mental fitness of the deceased, is liable to be rejected in as much as the same has been held by this Court in numerous decisions as a mere rule of prudence and not the ultimate test as to whether or not the said dying declaration was truthful or voluntary.”

In AIR 2004 SC 742, in the case of “Surendra

34.

Paswan vs. State of Jharkhand”, their Lordships of the Hon’ble Supreme Court have held that mere defect in investigation viz. non-sending of seized blood-stained earth

for

chemical

examination

does

not

corrode

evidentiary value of eye witnesses. Their Lordships have held as under:“8. So far as the non seizure of blood from the cot is concerned, the investigating officer has stated that he found blood stained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eye-witnesses. The investigating officer did not find presence of blood on the cot. The trial Court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over to the earth. 11. So far as the confusion relating to bullet and pellet is concerned, the same has been clarified by the doctor's evidence. In his examination the doctor (PW-3) has categorically stated that there was only one injury on the body of the deceased and no other injury was found anywhere on the person of the deceased. Therefore, the question of the deceased having received any injury by a pellet stated to have been recovered by the investigating officer is not established. The investigating officer has clarified that the bullet embodied was given to the police officials by the doctor which was initially not produced as it was in the Malkhana but subsequently the witness was recalled and it was produced in Court. 13. This in a way probabilises the prosecution version and does not in any way establish the defence version as is indicated for the first time in the statement under Section 313 Cr.P.C. and has pleaded before this Court to be a ground for doubting the veracity of the prosecution version. 14. The well reasoned judgments of the trial Court and the High Court do not need any interference. The appeal is without any merit and is dismissed.”

35.

In AIR 2005 SC 2989, in the case of “Harbans

Kaur and another vs. State of Haryana”, their Lordships of the Hon’ble Supreme Court have held that there is no

14

proposition in law that relatives are to be treated as untruthful witnesses. Their lordships have further held that long delay can be condoned if witnesses have no motive of implicating accused and have given plausible reason for delay. Their lordships have held as under:“7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard. So far as the delay in lodging the FIR is concerned, the witnesses have clearly stated that after seeing the deceased in an injured condition immediate effort was to get him hospitalized and get him treated. There cannot be any generalization that whenever there is a delay in lodging the FIR, the prosecution case becomes suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, would depend upon the facts of each case. Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly. In the instant case, this has been done. It is to be noted that though there was cross- examination at length no infirmity was noticed in their evidence. Therefore, the trial Court and the High Court were right in relying on the evidence of the prosecution witnesses.”

In (2002) 6 SCC 81, in the case of “Krishna

36.

Mochi and others Vs. State of Bihar”, their Lordships of the

Hon’ble Supreme Court have held that some

discrepancy is inevitable, but a discrepancy existing in a prosecution case, held, should not weigh with the court so long it does not materially affect the case. Their lordships have further held that the duty of the courts is not only to see that no innocent man should be punished, but also to ensure that no person committing an offence should get scot-free. Their lordships have held as under:“32. Thus, in criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot affored to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case b a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of

15

pebbled court should tread upon, it, but if the same are boulders, court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and society is so much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh and Anr. v. state (Delhi Administration) 1978CriLJ766 , Krishna Iyer, J. laid down that "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes." In the case of State of U.P. v. Anil Singh 1989CriLJ88, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. In the case of State of West Bengal v. Orilal Jaiswal and Anr. 1994CriLJ2104, it was held that justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Sigh and Anr. v. State of M.P. 1999CriLJ1334, it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective Layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused.”

37.

In (2003) 10 SCC 434, in the case of “State of

Maharastra vs. Kashirao and others”, their Lordships of the Hon’ble Supreme Court have held that cogent and credible evidence of a witness cannot be rejected merely on the ground of animosity between him and accused. Their lordships have held as under:“9. Evidence of PWs 1, 5 and 7 is cogent and credible. Merely because there was some animosity between PW-1 and accused persons as claimed by the prosecution, that cannot be a ground to discard his evidence even if it is credible and cogent.”

38.

In AIR 1965 SC 712, in the case of “Kirpal

Singh vs. the State of Uttar Pradesh”, their Lordships of the Hon’ble Supreme Court have held that where the accused is intimately known to be the witness and for

16

more than a fortnight before the date of the offence he had met the accused on several occasions in connection with the dispute, it cannot be said that identification of the assailant by the witness from what he heard and observed was so improbable that the Supreme court would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to his credibility and of the High Court which considered the evidence against the appellant and accepted the testimony. Their Lordships have held as under:“4. The conclusion recorded by the Court of First Instance and affirmed by the High Court is bases upon appreciation of evidence and no question of law arises therefrom. Normally this Court does not proceed to review the evidence in appeals in criminal cases, unless the trial is vitiated by some illegality or irregularity of procedure or the trial is held in a manner violative of the rules of natural justice resulting in a unfair trial or unless the judgment under appeal has resulted in gross miscarriage of justice. Rakkha Singh deposed that he had been able to recognise the appellant from his "voice and gait". Rakkha Singh was the father-in-law of the appellant, and had during the last few days before the death of Karam Singh seen the appellant frequently. Only four days before the incident there was a quarrel between Karam Singh and the appellant about the delivery of sugarcane crop and the appellant and his brothers and has retired from the scene at the intervention of Rakkha Singh, greatly annoyed. It is true that the evidence about identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be some-what risky in a criminal trial. But the appellant was intimately known to Rakkha Singh and for more than a fortnight before the date of the offence he had met the appellant on several occasions in connection with the dispute about the sugarcane crop. Rakkha Singh had heard the appellant and his brothers calling Karam Singh to come out of the hut and had also heard the appellant, as a prelude to the shooting referring to the dispute about sugarcane. In the examination, in chief Rakkha Singh has deposed as if he had seen the actual assault by the appellant, but in cross-examination he stated that he had not seen the face of the assailant of Karam Singh. He asserted however that he was able to recognize the appellant and his two brothers from their 'gait and voice'. It cannot be said that identification of the assailant by Rakkha Singh, from what he heard and observed was so improbable that we would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to his credibility and of the High Court which considered the evidence against the appellant and accepted the testimony.”

17

In 2003 (11) SCC 280, in the case of “State of

39.

U.P. vs. Babu & others”, their Lordships have held that identification is possible from the manner of speech, manner of walking and gesticulating and special features of a person like the physical attributes. Their Lordships have held as under:“7. Apart from the mention about the torchlight, one important aspect which cannot be lost sight of and which is of relevance and great significance is that the accused persons are known to the witnesses. When the persons are known, identification is possible from the manner of speech, manner of walking and gesticulating and special features of a person like the physical attributes.”

40.

It would be pertinent to take into consideration

the dire need to provide protection to the witnesses. 41.

The Court can take judicial notice of the fact

that the trials are not concluded expeditiously. The accused try to influence the witnesses. The witnesses are threatened of dire consequences. The witnesses are always under threat by the accused. In the instant case also, two witnesses were declared hostile, since they have not supported the case of the prosecution in entirety. The cross-examination of PW1 Manoj was done after nine months. There is urgent need to provide protection to the witnesses to enable them to depose fearlessly. In 1997 (6) SCC 514, in the case of “State of

42.

Gujarat vs. Anirudhsing & another”, their Lordships of the Hon’ble Supreme Court have held that merely because a witness has turned hostile his evidence cannot be rejected in its entirety. The Court must carefully analyse his evidence and see whether that part of the evidence which

is

consistent

with

the

prosecution

case

is

acceptable or not. Their Lordships have further held that every criminal trial is a voyage in quest of truth for public justice to punish the guilty and restore peace, stability

18

and order in the society. Every citizen who has knowledge of the commission of cognizable offence has a duty to lay information before the police and cooperate with the investigating officer who is enjoined to collect the evidence and if necessary summon the witnesses to give evidence. He is further enjoined to adopt scientific and all fair means to unearth the real offender, lay the chargesheet before the court competent to take cognizance of the offence. It is the salutary duty of every witness who has the knowledge of the commission of crime, to assist the State in giving evidence; unfortunately for various reasons, in particular deterioration in law and order situation and the principle of self-preservation, many a witness turn hostile and in some instances even direct witnesses are being liquidated before they are examined by the Court. Their Lordships have held as under:“3. Every criminal trial is a voyage in quest of truth for public justice to punish the guilty and restore peace, stability and order in the society. Every citizen who has knowledge of the commission of cognizable offence has duty to lay information before the police and co-operate with the investigating officer who is enjoined to collect the evidence and if necessary summon the witnesses to give evidence. He is further enjoined to adopt scientific and all fair means to unearth, the real offender, lay the charge-sheet before the Court competent to take cognizance of the offence. The charge-sheet needs to contain the facts constituting the offences charged. The accused is entitled to a fair trial. Every citizen who assists the investigation is further duty-bound to appear before the Court of session or competent criminal Court, tender his ocular evidence as a dutiful and truthful citizen to unfold the prosecution case as given in his statement. Any betrayal in that behalf is a step to stabilize social peace, order and progress. 29. In view of the above settled legal position, merely because some of the witnesses have turned hostile, their ocular evidence recorded by the Court cannot be held to have been washed off or unavailable to the prosecution. It is the duty of the Court to carefully analyse the evidence and reach a conclusion whether that part of the evidence consistent with the prosecution case, is acceptable or not. It is the salutary duty of every witness who has the knowledge of the commission of crime, to assist the State in giving the evidence; unfortunately for various reasons, in particular deterioration in law and order situation and the principle of self-preservation, many a witness turn hostile and in some instances even direct witnesses are being liquidated before they are examined by the Court. In such circumstances, it is high time that the Law Commission looks into the matter. We are informed that the Law Commission has recommended to the Central Government to make necessary amendments to the Cr.

19

PC. and this aspect of the matter should also be looked into and proper principles evolved in this behalf. Suffice it to state that responsible persons like Sub-Divisional Magistrate turned hostile to the prosecution and most of the responsible persons who were present at the time of flag hoisting ceremony on the Independence Day and in whose presence a ghastly crime of murdering a sitting M.L.A. was committed, have derelicted their duty in assisting the prosecution and to speak the truth relating to the commission of the crime. However, we cannot shut our eyes to the realities like the present ghastly crime and would endeavour to evaluate the evidence on record. Therefore, it is the duty of the trial Judge or the appellate Judge to scan the evidence, test it on the anvil of human conduct and reach a conclusion whether the evidence brought on record even of the turning hostile witnesses would be sufficient to bring home the commission of the crime. Accordingly, we undertake to examine the evidence in this case.”

43.

In 2000 (5) SCC 668, in the case of “Swarn

Singh vs. State of Punjab”, and analogous matter, their Lordships of the Hon’ble Supreme Court have highlighted the

problems faced by witnesses and have made

suggestions for improving their position in terms of unwarranted adjournments, amenities and diet money. Their Lordships have held as under:“36. A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required whether it is direct evidence or circumstantial evidence. Here are the witnesses who are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witnesses tries and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tried. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the court. He is pushed out from The crowded courtroom by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged examination and crossexamination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witnesses is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all. High Courts have to be vigilant in these matters. Proper diet money must be paid immediately to the witness (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the

20

subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. Each trial should be properly monitored. Time has come that all the courts, direct courts, subordinate courts are linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. The Bar Council of India and the State Bar Councils must play their part and lend their support to put the criminal system back on its trial. Perjury has also become a way of life in the law courts. A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to Clause (b) of Section 340(3) of the Cr.P.C. in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Cr.P.C.”

44.

In 2004 (4) SCC 158, in the case of “Zahira

Habibulla H. Sheikh & another vs. State of Gujarat & others”, their Lordships of the Hon’ble Supreme Court have held that crimes are public wrongs, in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to society in general. Their Lordships have also highlighted the role of state in witness protection, pressing and urgent need for legislative measures to protect witnesses. Their Lordships have held as under:“30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences. 35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due

21

administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a more recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. 41. "Witnesses" as Benthem 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 Courts 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 bench men and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and trifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably,

22

which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression, and injustice resulting in complete breakdown and collapse of the efifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to mockery. The State has 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 has deposed. 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 dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation of witnesses depose against people with muscle power, money power or political power 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. 42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if not more, as the interests of the individual accused. In this courts have a vital role to play. 49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. 57. This Court in Vineet Narain v. Union of India 1998CriLJ1208 has directed that steps should be taken immediately for the constitution of able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to these of the Director of Prosecution in England. In the United Kingdom, the Director of Prosecution was created in 1879. His appointment is by the Attorney General

23

from amongst the members of the Bar and he functions under the supervision of Attorney General. The Director of Prosecution plays, a vital role in the prosecution system. He even administers "Witness Protection Programmes"". Several countries for example Australia, Canada and USA have even enacted legislation in this regard. The Witness Protection Programmes are imperative as well as imminent in the context of alarming rate of somersaults by witnesses with ulterior motives and purely for personal gain or fear for security. It would be a welcome step if something in those lies are done in our country. That would be a step in the right direction for a fair trial. Expression of concern merely in words without really the mind to concretise it by positive action would be not only useless but also amounts to betrayal of public confidence and trust imposed.”

45.

In 2004 (5) SCC 518, in the case of “Sakshi

vs. Union of India & others”, their Lordships of the Hon’ble Supreme Court have held that it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Their Lordships have held as under:“31. The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Section 273 Cr.P.C. merely requires the evidence to be taken in the presence of the accused. The Section, however, does not say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses. Recording of evidence by way of video conferencing vis-a-vis Section 273 Cr.P.C. has been held to be permissible in a recent decision of this Court in State of Maharashtra v. Dr. Praful B Desai 2003CriLJ2033. There is major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are hand-maiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the Court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties.”

46.

In AIR 2008 SC 1943, in the case of

“Himanshu Singh Sabharwal vs. State of M.P. & others”, their Lordships of the Hon’ble Supreme Court have held that as a prosecutor 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

24

whom he has deposed. Their Lordships have held as under:“13. "Witnesses" as Benthem 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 Courts 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 ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and the trial is not reduced to mockery. 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 has deposed. 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 dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power 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. 14. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of

25

justice must be given as much importance if not more, as the interests of the individual accused. In this Courts have a vital role to play.”

47.

In 2003 ILR (2) Delhi 377, in the case of

“Neelam katara vs. Union of India & others”, the Division bench of Delhi High Court has highlighted and laid emphasis for “Witness Protection Programme”. 48.

The

“Committee

on

Reforms

of

Criminal

Justice System”, in its report Volume-I has made following recommendations for treating the witnesses with respect and to take steps for his protection as under:“11.1 Witness is an important constituent of the administration of justice. By giving evidence relating to the commission of the offence he performs a sacred duty of assisting the court to discover truth. That is why before giving evidence he either takes oath in the name of God or makes a solemn affirmation that he will speak truth, the whole of truth and nothing but truth. The witness has no stake in the decision of the criminal court when he is neither the accused nor the victim. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence. He submits himself to cross-examination and cannot refuse to answer questions on the ground that the answer will criminate him. He will incur the displeasure of persons against whom he gives evidence. He takes all this trouble and risk not for any personal benefit but to advance the cause of justice. The witness should be treated with great respect and consideration as a guest of honour. But unfortunately quite the reverse is happening in the courts. When the witness goes to the court for giving evidence there is hardly any officer of the court who will be there to receive him, provide a seat and tell him where the court he is to give evidence is located or to give him such other assistance as he may need. In most of the courts there is no designated place with proper arrangements for seating and resting while waiting for his turn to be examined as a witness in the court. Toilet facility, drinking water and other amenities like food and refreshment are not provided. 11.2 The witness is not adequately compensated for the amount of money he spends for his traveling and staying in the town where the court is located. Rates of allowance fixed long back are quite unrealistic and not adequate to meet the minimum needs of the witness. Steps should therefore be taken to review the scales of traveling and other allowances taking into account the prevailing cost in the area where the court is located. What is worse is that even the allowances fixed are not paid to the witness immediately on the ostensible ground that funds are not available. There are also complaints of corrupt officials of the administration who draw the allowances and do not pay them to the witnesses. This is an un-pardonable crime against the

26

witnesses. Therefore effective steps have to be taken to ensure that payment of the allowances to the witness is neither denied nor delayed. Full proof arrangements should be made to see that the allowances are paid immediately. An official should be designated to attend to the witnesses and be responsible for paying the allowances promptly. 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. Some times holding of in-camera proceedings may be sufficient to protect the interest of the witness. If, however, the circumstances indicate that the life of any particular witness is in danger, the court must take such measures as are necessary to keep the identity of the witness secret and make arrangements to ensure protection to the witness without affecting the right of the accused to crossexamine him. The threat from the accused side may be before he gives his statement before the police officer or evidence before the court or after the conclusion of the trial. There is a growing tendency of subjecting the witness and his family members to serious threats to life, abduction or raping, or damaging the witnesses’ property or harming his image and interest in other ways. The witness has no protection whatsoever. Many countries in the world have enacted laws for witnesses’ protection. There is no such law in India. Time has come for a comprehensive law being enacted for protection of the witness and members of his family. 11.4 The witness also suffers in the court in various other ways. When he comes to the court to give evidence he is often told that the case has been adjourned and is asked to come back on another day. When a case is adjourned, the witnesses in attendance are quite often not paid the allowances. The witnesses should not be punished by denying him reimbursement of the expenses for no fault of his. Steps should therefore be taken to ensure that the witnesses are paid allowances on the same day if the case is adjourned. Quite often more than one witnesses is summoned to prove the same point, much of it being of a formal character. The prosecutor may pay attention to reduce duplication of evidence resulting in unnecessary waste of time of courts and expenses. The evidence of Medical witnesses, Government scientific experts and Officers of mint contemplated by Sections 291, 292 and 293 of the Code shall be tendered as evidence in the form of Affidavits and the challenge to the same by the opposite party shall be by means of a counter Affidavit. The Court may permit an Affidavit in reply being filed by these experts. If the Court is satisfied that in the interest of justice, examination of these witnesses is necessary, it shall as far as possible be done through Video Conferencing. It is only if it is practicable that the witnesses may be summoned for giving evidence before the Court. Evidence of such witnesses should be recorded on priority basis and summoning such experts again should be avoided. The DNA experts should be included in sub section 4 of section 293 of the Code. This repeats again and again. No concern is shown for the valuable time of the witness and the trouble he takes to come to the court

27

again and again to give evidence. Therefore there is need to infuse sensitivity in the minds of the court and the lawyers about the hardship and inconvenience which the witness suffers when the case is adjourned. Therefore only such number of cases should be listed which can be taken on that particular day so that the witness is not required to return only to come again for giving evidence. The directions given from time to time that the trial should proceed on day to day basis are not being followed. Time has now come to hold the Judge accountable for such lapses. Appropriate remedial measures through training and supervision may have to be taken in this behalf by the respective High Courts. 11.5 The next aspect is about the way the witness is treated during trial. As already stated the witness is entitled to be treated with courtesy when he arrives for giving evidence. Similarly due courtesy should be shown to him when he enters the court hall for giving evidence. The present practice is to make the witness stand and give his evidence from the place designated for that purpose. Comfort, convenience and dignity of the witness should be the concern of the Judge. In the opinion of the Committee the present practice must be changed. A chair should be provided for the witness and requested to take his seat for giving evidence. The lawyer for the defence in order to demonstrate that the witness is not truthful or a reliable person would ask all sorts of questions to him. When the questions are likely to annoy, insult or threaten the witness, the Judge does not object and often sits as a mute spectator. It is high time the Judges are sensitised about the responsibility to regulate cross examination so as to ensure that the witness is not ill-treated affecting his dignity and honour. Therefore the High Courts should take measure through training and supervision to sensitize the Judges of their responsibility to protect the rights of the witnesses. 11.6 So far as witness is concerned, it is his primary duty to give true evidence of what he knows. Unfortunately this is not happening and the problem of perjury is growing.”

49.

The Law Commissions of India have also dealt

with separately the

issue of witness identity and

protection. The Law Commission has also dealt with this delicate issue in its 14th Report as under:“4.1 In the 14th Report of the Law Commission (1958), ‘witness protection’ was considered from a different angle. The Report referred to inadequate arrangements for witnesses in the Courthouse, the scales of traveling allowance and daily batta (allowance) paid for witnesses for attending the Court in response to summons from the Court. This aspect too is important if one has to keep in mind the enormous increase in the expense involved and the long hours of waiting in Court with tension and attending numerous adjournments. Here the question of giving due respect to the witness’s convenience, comfort and compensation for his sparing valuable time is involved. If the witness is not taken care of, he or she is likely to develop an attitude of indifference to the question of bringing the offender to justice. 4.2 Between 1958 and 2004, there has been a total change in the crime scene, in as much as, not only crime has increased

28

and cases of convictions have drastically fallen, but there is more sophistication in the manner of committing offences for, today, the offender too has the advantages of advances in technology and science. There are now more hostile witnesses than before and the witnesses are provided allurements or are tampered with or purchased and if they remain firm, they are pressurized or threatened or even eliminated. Rape and sexual offence cases appear to be the worst affected by these obnoxious methods. Fourth Report of the National Police Commission (1980): handicaps of witnesses: In June 1980, in the Fourth Report of the National Police Commission, certain inconveniences and handicaps from which witnesses suffer have been referred to. The Commission again referred to the inconveniences and harassment caused to witnesses in attending courts. The Commission referred to the contents of a letter received from a senior District and Sessions Judge to the following effect: “A prisoner suffers from some act or omission but a witness suffers for no fault of his own. All his troubles arise because he is unfortunate enough to be on the spot when the crime is being committed and at the same time ‘foolish’ enough to remain there till the arrival of the police.” The Police Commission also referred to the meager daily allowance payable to witnesses for appearance in the Courts. It referred to a sample survey carried out in 18 Magistrates’ Courts in one State, which revealed that out of 96,815 witnesses who attended the Courts during the particular period, only 6697 were paid some allowance and even for such payment, an elaborate procedure had to be gone through. 4.4 154th Report of the Law Commission (1996): Lack of facilities and wrath of accused referred: In the 154th Report of the Commission (1996), in Chapter X, the Commission, while dealing with ‘Protection and Facilities to Witnesses’, referred to the 14th Report of the Law Commission and the Report of the National Police Commission and conceded that there was ‘plenty of justification for the reluctance of witnesses to come forward to attend Court promptly in obedience to the summons”. It was stated that the plight of witnesses appearing on behalf of the State was pitiable not only because of lack of proper facilities and conveniences but also because witnesses have to incur the wrath of the accused, particularly that of hardened criminals, which can result in their life falling into great peril. The Law Commission recommended, inter alia, as follows: “6. We recommend that the allowances payable to the witnesses for their attendance in courts should be fixed on a realistic basis and that payment should be effected through a simple procedure which would avoid delay and inconvenience. … Adequate facilities should be provided in the court premises for their stay. The treatment afforded to them right from the stage of investigation upto the stage of conclusion of the trial should be in a fitting manner giving them due respect and removing all causes which contribute to any anguish on their part. Necessary confidence has to be

29

created in the minds of the witnesses that they would be protected from the wrath of the accused in any eventuality. 7. Listing of the cases should be done in such a way that the witnesses who are summoned are examined on the day they are summoned and adjournments should be avoided meticulously. …The courts also should proceed with trial on day-to-day basis and the listing of the cases should be one those lines. The High Courts should issue necessary circulars to all the criminal courts giving guidelines for listing of cases.” The following points emerge from the above recommendations: (a) Realistic allowance should be paid to witnesses for their attendance in Courts and there should be simplification of the procedure for such payment. (b) Adequate facilities should be provided to witnesses for their stay in the Court premises. Witnesses must be given due respect and it is also necessary that efforts are made to remove all reasonable causes for their anguish. (c) Witnesses should be protected from the wrath of the accused in any eventuality. (d) Witnesses should be examined on the day they are summoned and the examination should proceed on a day-today basis. 4.5 172nd Report of the Law Commission (2000) : Reference by Supreme Court to the Law Commission: screen technique: In March 2000, the Law Commission submitted its 172nd Report on ‘Review of Rape Laws’. The Law Commission took the subject on a request made by the Supreme Court of India (vide its order dated 9th August, 1999, passed in Criminal Writ Petition (No. 33 of 1997), Sakshi vs. Union of India. The petitioner ‘Sakshi’, an organization, interested in the issues concerning women, filed this petition, seeking directions for amendment of the definition of the expression ‘sexual intercourse’, as contained in section 375 of the IPC. The Supreme Court requested the Law Commission ‘to examine the issues submitted by the petitioners and examine the feasibility of making recommendations for amendments of the Indian Penal Code or to deal with the same in any other manner so as to plug the loopholes’. The Law Commission discussed the issues raised by the petitioner with Petitioner NGO and other women organizations. The Commission also requested ‘Sakshi’ and other organizations to submit their written suggestions for amendment of procedural laws as well as the substantial law. Accordingly, these women organizations submitted their suggestions for amendment of Cr.P.C. and the Evidence Act and also I.P.C. One of the views put forward by the organizations was that a minor complainant of sexual assault shall not have to give his/her oral evidence in the presence of the accused, as this will traumatic to the minor. It was suggested that appropriate changes in the law should be made for giving effect to this provision. It was further suggested that a minor’s testimony in a case of child sexual abuse should be recorded at the earliest possible opportunity in the presence of a judge and the child-support person, which may include a family friend, relative or social worker whom the minor trusts. For the

30

purpose of proper implementation of the above suggestion, it was urged that the court should take steps to ensure that at least one of the following methods is adopted: (i) permitting use of a video-taped interview of the child’s statement by the judge in the presence of a child support person; (ii) allowing a child to testify via closed circuit television or from behind a screen to obtain a full and candid account of the acts complained of; (iii) the cross examination of the minor should only be carried out by the judge based on written questions submitted by the defence upon perusal of the testimony of the minor; (iv) whenever a child is required to give testimony, sufficient breaks shall be given as and when required by the child. The Commission considered the above suggestions along with other issues raised and the order of the Supreme Court and gave its 172nd Report on 25th March, 2000. In respect of the suggestion that a minor who has been assaulted sexually, should not be required to give his/her evidence in the presence of the accused and he or she may be allowed to testify behind the screen, the Law Commission referred to section 273 of the Cr.P.C., which requires that ‘except as otherwise expressly provided, all evidence taken in the course of a trial or other proceeding, shall be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader’. The Law Commission took the view that his general principle, which is founded upon natural justice, should not be done away with altogether in trials and enquiries concerning sexual offence. However, in order to protect the child witness the Commission recommended that it may be open to the prosecution to request the Court to provide a screen in such a manner that the victim does not see the accused, while at the same time providing an opportunity to the accused to listen to the testimony of the victim and give appropriate instructions to his advocate for an effective crossexamination. Accordingly, the Law Commission in para 6.1 of its 172nd Report recommended for insertion of a proviso to section 273 of the Cr.P.C. 1973 to the following effect: “Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused”. In respect of other suggestions mentioned above, made by Sakshi organization, the Law Commission expressed its view that these suggestions were impracticable and could not be accepted. 178th Report of the Law Commission (2001): preventing witnesses turning hostile: In December, 2001, the Commission gave its 178th Report for amending various statutes, civil and criminal. That Report dealt with hostile witnesses and the precautions the Police should take at the stage of investigation to prevent prevarication by witnesses when they are examined later at the trial. The Commission recommended three alternatives, (in modification of the two alternatives suggested in the 154th Report). They are as follows:

31

“1. The insertion of sub-section (1A) in Section 164 of the Code of Criminal Procedure (as suggested in the 154th Report) so that the statements of material witnesses are recorded in the presence of Magistrates. [This would require the recruitment of a large number of Magistrates]. 2. Introducing certain checks so that witnesses do not turn hostile, such as taking the signature of a witness on his police statement and sending it to an appropriate Magistrate and a senior police officer. 3. In all serious offences, punishable with ten or more years of imprisonment, the statement of important witnesses should be recorded, at the earliest, by a Magistrate under Section 164 of the Code of Criminal Procedure, 1973. For less serious offences, the second alternative (with some modifications) was found viable.” 4.6 However, it is to be noted that the Law Commission, in the above Report, did not suggest any measures for the physical protection of witnesses from the ‘wrath of the accused’ nor deal with the question whether the identity of witnesses can be kept secret and if so, in what manner the Court could keep the identity secret and yet comply with the requirements of enabling the accused or his counsel to effectively cross examine the witness so that the fairness of the judicial procedure is not sacrificed. 4.7 The Criminal Law (Amendment) Bill, 2003: preventing witnesses turning hostile: In the Criminal Law (Amendment) Bill, 2003, introduced in the Rajya Sabha in August, 2003, the above recommendations have been accepted by further modifying the recommendation (3) of recording statement before a Magistrate to apply where the sentence for the offence could be seven years or more. A further provision is being proposed for summary punishment of the witness by the same Court if the witness goes back on his earlier statement recorded before the Magistrate. Another provision is also being made to find out whether the witness is going back on his earlier statement because of inducement or pressure or threats or intimidation. 4.8 Thus, the above analysis of the various recommendations of the Law Commission made from time to time, including the 178th Report shows that they do not address the issue of ‘protection’ and ‘anonymity’ of witnesses or to the procedure that has to be followed for balancing the rights of the witness on the one hand and the rights of the accused to a fair trial. In the absence of such a procedural law, the Supreme Court has had to step in on the judicial side in recent case to give various directions and these judgments will be discussed in the next chapter, Chapter V. 4.9 It is, therefore, proposed to deal with the above gaps in the law, in detail in the Consultation Paper.

50.

The State of Uttarakhand in a very progressive

manner has enacted the Uttarakhand Police Act, 2007 on scientific lines and as per the observations made by the Hon’ble

Supreme

Court

in

the

judgment

cited

hereinabove qua witness protection and anonymity.

32

Section 54 of the Uttarakhand Police Act, 2007 reads as under:Section 54 - Witness Protection (1) The State Government shall, as soon as may be, frame rules for Witness Protection as a measure of Human Rights protection. (2) The State Government or an officer, authorized by the State Government may apply to the Court, having jurisdiction, for declaring a witness as a protected witness under such terms and such conditions, as may be prescribed. (3) The measures for protecting such witness may include, inter alia: (a) Making necessary arrangements: (i) allowing the witness to establish a new identity; or (ii) providing arrangements to protect and provide security to the witness and his family; (b) relocating the witness; (c) providing accommodation for the witness; (d) providing transport for the property of the witness; (e) providing reasonable financial assistance to the witness; (f) permitting any person, involved in the administration of the witness protection programme, to use an assumed name in carrying out his or her duties and for documentation in support of those assumed names; (g) taking any of the steps listed in clauses (a) to (f), in respect of a foreign witness, present in Uttarakhand, pursuant to an agreement or arrangement between India and a foreign State, relating to witness protection; (h) any other action, which the State Government considers necessary, to ensure the safety of the witness. (4) The State Government may pass such orders, as deemed necessary, to remove any difficulty in the operation of this section.

51.

However, the State Government, till date, has

not framed any rules to give effect to Section 54 of the Act, 2007 for witness protection as a measure of Human Rights Protection. The Act has received the assent of the Governor on 2nd January, 2008 and published in the Uttarakhand

Gazetee,

Extra

Ordinary,

Part-1

on

04.01.2008. The State Government in a right earnest should have framed the Rules to give protection to the witnesses to ensure fair investigation and trial. 52.

In the instant case, the cross-examination of

PW1 Manoj was undertaken after about nine months. Two witnesses have turned hostile. It is the prime duty of the State Government to protect the witnesses to

33

undertake fair scientific investigation and fair trial. The witnesses have a right to be protected by the State Government being an essential component of criminal justice delivery system. 53.

It

is

evident

from

the

discussion

made

hereinabove that the prosecution has proved the case against the appellants beyond reasonable doubt. The statements of PW-1 Manoj and PW-4 Padma Mishra are duly corroborated by the medical evidence as well as by the experts who have proved FSL reports. The appellants have rightly been convicted by the trial court and they have also rightly been sentenced to life imprisonment. 54.

Criminal Misc. Application No.341 of 2018

During pendency of present appeal, appellant No.1 Pramod Sharma has filed this application under Section 391 Cr.P.C. for adducing the additional evidence. This application is an afterthought and the same cannot be considered at this stage. The purpose of filing the application is just to fill up the lacuna. In view of the observations

made

by

the

learned

trial

Court

in

paragraph No.45 of judgment dated 17.03.2016, the deceased was taken from Doon Hospital to Indresh Hospital. Moreover, the deceased was neither admitted in Doon Hospital nor in Indresh Hospital. The information supplied on 21.06.2017 by the authority of Shri Mahant Indresh Hospital that no boy was brought for treatment, is of no consequence since the deceased was never admitted for treatment in the Hospital and he was declared brought dead. (CRMA No.341 of 2018) is without any merit and the same is, accordingly, rejected. 55.

In

2008

Cri.L.J.

970,

in

the

case

of

“Mamatadevi vs. Vijaykumar Agrawal”, learned Single Judge has held that parties as of right cannot seek to adduce additional evidence at appellate stage. Moreover,

34

when the accused though had opportunity to apply to refer disputed document to expert did not apply until conclusion of trial. Learned Single Judge has held as under:“8. The learned senior counsel for the applicant then urged that Section 391 of the Criminal Procedure Code permits evidence to be taken in appeal and for the right decision in the matter, the Appellate Court should have allowed the application. What Section 391 of Criminal Procedure Code says is that if the Appellate Court thinks such evidence to be necessary, it shall take it itself or cause itself to be taken by the Magistrate. The learned Counsel for the applicant contended that if such evidence is taken by the Court, the Court would be in a position to arrive at a right conclusion. She relied on the decision of the Supreme Court in 2001CriLJ2343 , Rambhau and Anr. v. State of Maharashtra. The Supreme Court has observed thus – 2. A word of caution, however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. This Court in the case of Rajeshwar Prasad Misra v. State of W.B. In no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. 4. Incidentally, Section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court and the power being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41, Rule 27 of the Civil Procedure Code. 6. Before going into the factual score further, it is convenient to note at this juncture that during the course of hearing of this appeal, the High Court thought it fit to conduct an additional examination of both the accused persons with a reasoning as below: We have examined them to rectify the irregularity as cropped up and pointed out by the defence. The word "irregularity" in common English parlance means and implies contrary to rule. This Court in the case of Marin Burn Ltd. v. Corporation of Calcutta while explaining the

35

meaning of irregularity observed : (AIR P. 534, para 13) A point was, however, made that Section 131(2)(b) applies only to a cancellation on the ground of irregularity, that is, a procedural defect such as, absence of notice, omission to give a hearing, etc. There is, however, no reason to restrict the ordinary meaning of the word 'irregularity' and confine it to procedural defects only. None has been advanced. Such a contention was rejected, and we think rightly, in Corporation of Calcutta v. Chandoolal Bhai Chand Modi. That word clearly covers any case where a thing has not be done in the manner laid down by the statute, irrespective of what that manner might be. Black's Law Dictionary defines the word as "not according to rule and not regular" i.e. which stands contrary to rule. As noticed above, the purpose of introduction of Section 391 (earlier Section 428) in the statute-book has been for the purpose of making it available to the Court, not to fill up any gap in the prosecution case but to oversee that the concept of justice does not suffer. The High Court itself records "to rectify the irregularity", the issue therefore, is whether this rectification by an additional evidence is a mere irregularity or goes to the root of the issue and instead of subserving the ends of justice, the same runs counter to the concept of justice. 9. The Supreme Court specifically observed that the purpose of introduction of Section 391 of Criminal Procedure Code in the statute book has been for the purpose of making it available to the Court and not to fill up any gap in the prosecution but to oversee that the concept of justice does not suffer. It is thus obvious that the parties as of right cannot seek use of Section 391 but it must be able to convince the Court as to why the Court should exercise such power in his favour. In the instant case, the accused has had enough opportunity firstly, to produce the document immediately and to confront the complainant and even to apply immediately to refer the document to an expert. The accused did not do anything until conclusion of the trial and even for almost two years after appeal was filed. The learned Magistrate has observed in para No. 29 of his judgment that the acknowledgment Exh.154 was not referred to in the reply to the notice by the accused. Similarly, the document came to be filed on record for the first time when defence witness Praful was examined. If such a document was really in existence, there was no difficulty in referring to it in notice and even producing it in Court immediately to confront the complainant during cross-examination. The accused in spite of denial by the complainant on oath in April, 2005, did not move any application. Hence, this is not a case where power could be used in favour of such a litigant. The Supreme Court has observed that the provisions of Section 391 of Criminal Procedure Code are akin to provisions contained in Order 41, Rule 27 of Civil Procedure Code. Rule 27 in fact starts with the words "no party shall be entitled to produce additional evidence. Ordinarily, therefore, there is a clear bar for admitting additional evidence in appeal. Rule, however, in certain cases allows such party to produce the evidence. The first ground is when the trial Court has refused to admit that evidence and second is in spite of exercise of due diligence, it

36

was not within knowledge and could not be within the knowledge and could not be produced. The case at hand does not fall in either of the above two categories. The third ground is when the Court itself finds such evidence and document necessary to pronounce the judgment. In the instant case, I do not find that such examination of document is necessary for pronouncement of the judgment. This I say because it appears from the judgment of the lower Court that the accused did not even make a request to the Court to itself compare the signature of the complainant on the acknowledgment with his admitted signature. When such a request was not even made to the trial Court for comparison by the Court itself, it cannot be said that the accused ever intended that there is a need to have an examination of the document by any expert. Shri Chandurkar, learned Counsel for the non-applicant, contended that the application is made for two reasons, firstly; to fill up the lacunae and secondly; to delay. He submitted that the Appellate Court cannot permit additional evidence to be taken in appeal. He relied on a decision of this Court in 2003 All MR 639, Yogendra Bhagatram Sachdev v. State of Maharashtra and Anr. This Court has observed thus – 22. All the decisions cited by the learned Advocate for the applicant are agreed that the exercise of power by the Judge under Section 391 of the Code of Criminal Procedure must be to meet the ends of justice so that injustice is not done to the accused on account of some irregularity in the conduct of trial or where the trial Court through ignorance has omitted to record the evidence of circumstances essential to elucidate the truth, with a caveat, that exercise of such power should not be with a view to fill up the lacunae in the evidence. Thus, the Court acting under Section 391 of the Code of Criminal Procedure, 1973 is required to exercise its discretion to allow the applicantaccused to lead evidence by examining himself at the appeal stage with circumspection and caution and only with the objective of doing justice between the parties in the facts and circumstances of the case. However, if the purpose of the prosecution or the accused to adduce evidence at the appeal stage is for the purpose of filling in lacunae, then such an application must be rejected. Hence, I too find that the objective of accused is to fill up lacunae. In view of this, I find that the learned Sessions Judge rightly rejected the application. There is no substance in these two applications. They are dismissed.”

56.

In 2001 (4) SCC 759, in the case of “Rambhau

& another vs. State of Maharashtra”, their Lordships of the Hon’ble Supreme Court have held that power under Section 391 of Cr.P.C. is not intended to fill up gap in the prosecution and to cause prejudice to accused but to oversee that concept of justice prevails.

37

57.

The witnesses are the integral part of the

administration of justice. They have to be given utmost respect and honour. The witnesses are not adequately compensated for the amount they spent from their pocket. They have to travel long distances. There are no separate rooms for them to sit. They are entitled to reasonable realistic allowances for boarding and lodging at the expenses of State Government, if they have to stay back in the town. There is constant threat perception to the witnesses and their families. The witnesses have to depose

at

times

against

the

gangsters,

terrorists,

smugglers, muscle men and persons involved in heinous crimes. The threat perception at times keeps the witness away from the courts. The threat perception persists during the course of investigation, during trial and also after the conclusion of trial. Unnecessary adjournments are given by the trial courts prolonging the trial and causing mental agony to the witnesses. The trial should be held on day-to-day basis. The witnesses are required to be shown utmost respect and their dignity has to be maintained during the course of investigation and at the time of trial. The entire system is required to be sensitized.

Since the witnesses are under constant

threat, there is an increasing tendency of turning them hostile. 58.

According to the 4th Report of the National

Police Commission, 1980, the Police Commission has referred to the meager daily allowances payable to witnesses for appearance in the Courts. It referred to a sample survey carried out in 18 Magistrates’ Courts in one State, which revealed that out of 96,815 witnesses, who attended the Courts during the particular period, only 6697 were paid some allowance and even for such payment, an elaborate procedure had to be gone through. The 154th Report of the Commission, 1996, as discussed

38

hereinabove,

has

highlighted

the

“Protection

and

Facilities to Witnesses.” 59.

It is a duty of the entire system to instill

confidence in the minds of the witnesses that they would be protected from the wrath of the accused. 60.

There is hesitation of witnesses to depose

against people with muscle power, money power or political clout. The witnesses turn hostile due to threats, coercion, lures and monetary consideration at times. The judges should be held accountable for not holding the trial on day to day basis. Adverse entries should be entered in their annual confidential reports. We have to ensure that the witness’s comfort and convenience is also taken into consideration, since he is sparing valuable time for deposing in the Courts. 61.

The State of Uttarakhand is the 1st State to

make an enactment for protection of witnesses by way of Section 54 of the Uttarakhand Police Act, 2007. We place on record our appreciation for the progressive legislation made by the State Government. This is a laudable step taken by the State of Uttarakhand to be emulated by other states. The conviction rate in India is lowest. It is not more than 40%. In advance countries, like in Japan, the conviction rate is about 98%. 62.

There is no occasion for us to interfere with the

well reasoned judgment and order dated 17.03.2016 rendered by learned Additional Sessions Judge

in

Sessions Trial No. 133 of 2008. Accordingly, the Criminal Appeal is dismissed being devoid of merits.

The

appellants shall undergo the sentence, as imposed upon them by the trial Court, vide the judgment and order, under challenge.

39

63.

However, before parting with the judgment, we

deem it fit to issue the following mandatory directions:A. The State Government is directed to frame the Rules under Section 54 of the Uttarakhand Police Act, 2007 within a period of six months from today and also make suitable amendment in the Indian Penal Code to punish the persons inducing any witness to give false statement and till then; a. The State Government is directed that all the witnesses should be paid reasonable amount as travelling allowance on the date of recording of their statements and if the statement spills over to the next date, the boarding and lodging of the witnesses

should

be

provided

by

the

State

Government from State Exchequer. B. The police is directed to grant protection to the witnesses and their family members during the course of investigation, inquiry, during trial and after the conclusion of trial till the threat persists. C. The State Government is also directed to ensure that the material witnesses in heinous and sensitive matters are insured on short-term or long term basis by the State Government to enable them to fearlessly testify before the Court. D. All the criminal courts throughout the State of Uttarakhand are directed to hold the trials on day to day basis. The reporting officers are directed to enter adverse remarks in Annual Confidential Reports of the judicial officers who do not hold the trial on day to day basis. E. The State Government, while framing the Rules, must ensure to protect the life, liberty, reputation and property of the witnesses as well.

40

F. The

State

Government

should

install

security

devices in the witness’s home such as security door CCTVs, alarms, fencing etc. G. The police must have emergency contact numbers of witnesses, close protection for the witnesses, regular patrolling around the witness’s house, escort to the Court and from the court to their home with provision of Government vehicle or a State funded conveyance on the date of hearing. H. The State Government should ensure providing a separate room for the witnesses to sit and relax while waiting for their turn to depose during the trial. I. The State Government is also directed to change the identity of the witness in heinous/sensitive crimes, if there is request made by the witness to conceal his/her identity and also to relocate him/her with new identity. 64.

Let a certified copy of this judgment with lower

court record be sent to the learned trial court forthwith to proceed with the matter in accordance with law.

(Alok Singh, J.) JKJ

14.05.2018

(Rajiv Sharma, J.)