# Preetam Singh (In Jail) v. State of U.P

- **Citation:** (2023) 5 ILRA 1292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-07
- **Case number:** Crl. Misc. Bail Application No. 14402 of 2023
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/preetam-singh-in-jail-v-state-of-u-p-50170
- **Pages:** 6

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 439 - Indian Penal
Code, 1860-Section 302-application- the
applicant, who happens to be the nephew
of the deceased person, is stated to have
assaulted his uncle by a knife thereby
causing his death at the spot over a family
dispute-PW-1 the material witness turned
hostile- evidence of a hostile witness
cannot be discarded in toto, and relevant
parts thereof which are admissible in law,
can be used by the prosecution or the
defence- The bail application is found
devoid of merits-Hence, rejcected.(Para 1
to 12)

B. The evidence of a prosecution witness
cannot be rejected in toto merely because
the prosecution chose to treat him as
hostile and cross-examined him. The
evidence of such witnesses cannot be
treated as effaced or washed off the
record altogether but the same can be
accepted to the extent their version is
found to be dependable on a careful
scrutiny thereof.(Para 8)

The application is rejected. (E-6)

List of Cases cited:

## Text

1292 INDIAN LAW REPORTS ALLAHABAD SERIES
to any police officer or tamper with the
evidence.

63. In case of breach of any of the
above conditions, the prosecution shall be
at liberty to move an application before this
Court seeking cancellation of bail.
----------
(2023) 5 ILRA 1292
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2023

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Crl. Misc. Bail Application No. 14402 of 2023

Preetam Singh ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Raj Kumar Singh, Sri Sunil Kumar Singh

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 439 - Indian Penal
Code, 1860-Section 302-application- the
applicant, who happens to be the nephew
of the deceased person, is stated to have
assaulted his uncle by a knife thereby
causing his death at the spot over a family
dispute-PW-1 the material witness turned
hostile- evidence of a hostile witness
cannot be discarded in toto, and relevant
parts thereof which are admissible in law,
can be used by the prosecution or the
defence- The bail application is found
devoid of merits-Hence, rejcected.(Para 1
to 12)

B. The evidence of a prosecution witness
cannot be rejected in toto merely because
the prosecution chose to treat him as
hostile and cross-examined him. The
evidence of such witnesses cannot be
treated as effaced or washed off the
record altogether but the same can be
accepted to the extent their version is
found to be dependable on a careful
scrutiny thereof.(Para 8)

The application is rejected. (E-6)

List of Cases cited:

1. Bhagwan Singh Vs St. of Har. (1976) 1 SCC
389 : (AIR 1976 SC 202)

2. Rabindra Kumar Dey Vs St. of Ori.(1976) 4
SCC 233 : (AIR 1977 SC 170)

3. Syad Akbar Vs St. of Karn.(1980) 1 SCC 30 :
(AIR 1979 SC 1848)

4. Khujji Vs St. of M.P.(1991) 3 SCC 627 : (AIR
1991 SC 1853 ) , SCC p. 635, para 6.)

5. St. of U.P. Vs Ramesh Prasad Misra [(1996)
10 SCC 360 : (AIR 1996 SC 2766): 1996 SCC
(Cri) 1278]

6. Sohrab Vs St. of M.P., [(1972] 3 SCC 751 :
(1972) SCC (Cri) 819 : AIR 1972 SC 2020]

7. St. of U.P. VsM.K. Anthony, [(1985) 1 SCC
505 : 1985 SCC (Cri) 105] : (AIR 1985 SC 48)

8. Bharwada Bhoginbhai Hirjibhai Vs St. of
Guj.[(1983) 3 SCC 217 : 1983 SCC (Cri) 728 :
AIR 1983 SC 753]

9. St. of Raj. Vs Om Prakash, [(2007) 12 SCC
381 : (2008) 1 SCC (Cri) 411] : (AIR 2007 SC
2257)

10. Prithu Vs St. of H.P., [(2009) 11 SCC 585 :
(2009) 3 SCC (Cri) 1502] : (AIR 2009 SC 2070 )

11. St. of U.P. Vs Santosh Kumar, [(2009) 9 SCC
626 : (2010) 1 SCC (Cri) 88] : (2009 AIR SCW
6177)

12. St. Vs Saravanan, [(2008) 17 SCC 587 :
(AIR 2009 SC 152) : (2010) 4 SCC (Cri) 580]

13. Vinod KumarVs St. of Punj. (2015) 3 SCC
220 : (AIR 2015 SC 1206)
5 All. Preetam Singh Vs. State of U.P.
1293
(Delivered by Hon'ble Krishan Pahal, J.)

1. List has been revised.

2. Supplementary affidavit filed today
is taken on record.

3. Heard Sri Sunil Kumar Singh,
learned counsel for applicant and Sri
Vibhav Anand Singh, learned A.G.A. for
the State.

4. The present bail application has
been filed by the applicant in Case Crime
No.101 of 2022, under Section 302 IPC,
Police Station Dubhar, District Ballia with
the prayer to enlarge him on bail.

PROSECUTION STORY:

5. As per prosecution story, the
applicant, who happens to be the nephew of
the deceased person, is stated to have
assaulted his uncle by a knife thereby
causing his death at the spot on 03.07.2022
at about 4:00 PM over a family dispute.

RIVAL CONTENTIONS:

6. Learned counsel for the applicant
has stated that the applicant is absolutely
innocent and has been falsely implicated in
the present case. Learned counsel has
further stated that all the witnesses of fact
have been examined and they have not
supported the prosecution story. There is no
likelihood of conviction of the applicant in
the present case. The other witnesses are
simply formal witnesses only. Several other
submissions have been made on behalf of
the applicant to demonstrate the falsity of
the allegations made against him. The
circumstances which, as per counsel, led to
the false implication of the applicant have
also been touched upon at length. There is
no criminal history of the applicant. The
applicant is languishing in jail since
04.07.2022. In case, the applicant is
released on bail, he will not misuse the
liberty of bail.

7. Per contra, learned A.G.A. has
vehemently opposed the bail application
on the ground that the examination-inchief of the informant, as PW-1, was
taken up on 14.11.2021 and he has
categorically
deposed
against
the
applicant and nominated him to be the
assailant of having caused the death of
his brother and some cross-examination
was even taken up the same day.
Subsequent
to
it,
further
crossexamination of PW-1 was taken up on
14.12.2021 i.e. about a month after the
said examination-in-chief and the first
informant has resiled from his earlier
statement and has been declared hostile
by the public prosecutor.

CONCLUSION:-

8. The evidence of a hostile witness
cannot be discarded in toto, and relevant
parts thereof which are admissible in law,
can be used by the prosecution or the
defence. The Apex Court in Rajesh Yadav
and another Etc. v. State of U. P.,1 has
dealt with the evidentiary value of the
Hostile witnesses. The relevant paragraphs
are being reproduced as follows:

22. On the law laid down in
dealing with the testimony of a witness over
an issue, we would like to place reliance on
the decision of this Court in C. Muniappan
v. State of T.N., (2010) 9 SCC 567: (AIR
2010 SC 3718):

"81. It is settled legal proposition
that:
1294 INDIAN LAW REPORTS ALLAHABAD SERIES

"6.
...
the
evidence
of
a
prosecution witness cannot be rejected in
toto merely because the prosecution chose
to treat him as hostile and cross-examined
him. The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent their version is found
to be dependable on a careful scrutiny
thereof."(Vide Bhagwan Singh v. State of
Haryana, (1976) 1 SCC 389 : (AIR 1976
SC 202) , Rabindra Kumar Dey v. State of
Orissa, (1976) 4 SCC 233 : (AIR 1977 SC
170) , Syad Akbar v. State of Karnataka,
(1980) 1 SCC 30 : (AIR 1979 SC 1848) and
Khujji v. State of M.P., (1991) 3 SCC 627 :
(AIR 1991 SC 1853 ) , SCC p. 635, para 6.)

82. In State of U.P. v. Ramesh
Prasad Misra [(1996) 10 SCC 360 : (AIR
1996 SC 2766): 1996 SCC (Cri) 1278] this
Court held that (at SCC p. 363, para 7)
evidence of a hostile witness would not be
totally rejected if spoken in favour of the
prosecution or the accused but required to
be subjected to close scrutiny and that
portion of the evidence which is consistent
with the case of the prosecution or defence
can be relied upon. A similar view has been
reiterated by this Court in Balu Sonba Shinde
v. State of Maharashtra [(2002) 7 SCC 543:
2003 SCC (Cri) 112] : (AIR 2002 SC 3137) ,
Gagan Kanojia v. State of Punjab [(2006) 13
SCC 516: (2008) 1 SCC (Cri) 109] :
(AIROnline 2006 SC 574) , Radha Mohan
Singh v. State of U.P. [(2006) 2 SCC 450:
(2006) 1 SCC (Cri) 661 : (AIR 2006 SC
951)], Sarvesh Narain Shukla v. Daroga
Singh [(2007) 13 SCC 360: (2009) 1 SCC
(Cri) 188] : (AIR 2008 SC 320) and Subbu
Singh v. State [(2009) 6 SCC 462: (2009) 2
SCC (Cri) 1106] : (2009 AIR SCW 3937).

83. Thus, the law can be
summarised to the effect that the evidence
of a hostile witness cannot be discarded as
a whole, and relevant parts thereof which
are admissible in law, can be used by the
prosecution or the defence.

84. In the instant case, some of
the material witnesses i.e. B. Kamal (PW
86) and R. Maruthu (PW 51) turned hostile.
Their evidence has been taken into
consideration by the courts below strictly
in accordance with law. Some omissions,
improvements in the evidence of the PWs
have been pointed out by the learned
counsel for the appellants, but we find them
to be very trivial in nature.
85. It is settled proposition of law that even
if there are some omissions, contradictions
and discrepancies, the entire evidence
cannot be disregarded. After exercising
care and caution and sifting through the
evidence to separate truth from untruth,
exaggeration and improvements, the court
comes to a conclusion as to whether the
residuary evidence is sufficient to convict
the accused. Thus, an undue importance
should not be attached to omissions,
contradictions and discrepancies which do
not go to the heart of the matter and shake
the basic version of the prosecution's
witness. As the mental abilities of a human
being cannot be expected to be attuned to
absorb all the details of the incident, minor
discrepancies are bound to occur in the
statements of witnesses. "Vide Sohrab v.
State of M.P., [(1972] 3 SCC 751 : (1972)
SCC (Cri) 819 : AIR 1972 SC 2020], State
of U.P. v. M.K. Anthony, [(1985) 1 SCC
505 : 1985 SCC (Cri) 105] : (AIR 1985 SC
48) , Bharwada Bhoginbhai Hirjibhai v.
Sate of Gujrat, [(1983) 3 SCC 217 : 1983
SCC (Cri) 728 : AIR 1983 SC 753], State of
Rajasthan v. Om Prakash, [(2007) 12 SCC
381 : (2008) 1 SCC (Cri) 411] : (AIR 2007
SC 2257) , Prithu v. State of H.P., [(2009)
11 SCC 585 : (2009) 3 SCC (Cri) 1502] :
5 All. Preetam Singh Vs. State of U.P.
1295
(AIR 2009 SC 2070 ) , State of U.P. v.
Santosh Kumar, [(2009) 9 SCC 626 :
(2010) 1 SCC (Cri) 88] : (2009 AIR SCW
6177) and State v. Saravanan, [(2008) 17
SCC 587 : (AIR 2009 SC 152) : (2010) 4
SCC (Cri) 580].
23. This Court in Vinod Kumar v. State of
Punjab, (2015) 3 SCC 220 : (AIR 2015 SC
1206) had already dealt with a situation
where a witness after rendering testimony
in line with the prosecution's version,
completely abandoned it, in view of the
long adjournments given permitting an act
of manoeuvring. While taking note of such
situations occurring with regularity, it
expressed its anguish and observed that:

"51. It is necessary, though
painful, to note that PW 7 was examinedin- chief on 30-9-1999 and was crossexamined on 25-5-2001, almost after 1 year
and 8 months. The delay in said crossexamination, as we have stated earlier had
given enough time for prevarication due to
many a reason. A fair trial is to be fair both
to the defence and the prosecution as well as
to the victim. An offence registered under the
Prevention of Corruption Act is to be tried
with all seriousness. We fail to appreciate
how the learned trial Judge could exhibit
such laxity in granting so much time for
cross-examination in a case of this nature. It
would have been absolutely appropriate on
the part of the learned trial Judge to finish
the cross-examination on the day the said
witness was examined. As is evident, for no
reason whatsoever it was deferred and the
cross- examination took place after 20
months. The witness had all the time in the
world to be gained over. We have already
opined that he was declared hostile and reexamined.

52. It is settled in law that the
testimony of a hostile witness can be relied
upon by the prosecution as well as the
defence. In re-examination by the Public
Prosecutor, PW 7 has accepted about the
correctness of his statement in the court on
13-9-1999. He has also accepted that he
had not made any complaint to the
Presiding Officer of the court in writing or
verbally that the Inspector was threatening
him to make a false statement in the court.
It has also been accepted by him that he
had given the statement in the court on
account of fear of false implication by the
Inspector. He has agreed to have signed his
statement dated 13-9-1999 after going
through and admitting it to be correct. It
has come in the re-examination that PW 7
had not stated in his statement dated 13-9-
1999 in the court that recovery of tainted
money was not effected in his presence
from the accused or that he had been told
by the Inspector that amount has been
recovered from the accused. He had also
not stated in his said statement that the
accused and witnesses were taken to the
Tehsil and it was there that he had signed
all the memos.

53. Reading the evidence in
entirety, PW 7's evidence cannot be
brushed aside. The delay in crossexamination
has
resulted
in
his
prevarication from the examination-inchief.
But,
a
significant
one,
his
examination-
in-chief
and
the
reexamination impels us to accept the
testimony that he had gone into the octroi
post and had witnessed about the demand
and acceptance of money by the accused.
In his cross-examination he has stated that
he had not gone with Baj Singh to the
Vigilance Department at any time and no
recovery was made in his presence. The
said part of the testimony, in our
considered
view,
does
not
commend
acceptance in the backdrop of entire
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence in examination-in-chief and the
re-examination.

57. Before parting with the case
we are constrained to reiterate what we
have said in the beginning. We have
expressed our agony and anguish for the
manner in which trials in respect of serious
offences relating to corruption are being
conducted by the trial courts:

57.1. Adjournments are sought on
the drop of a hat by the counsel, even
though the witness is present in court,
contrary to all principles of holding a trial.
That apart, after the examination-in-chief
of a witness is over, adjournment is sought
for cross-examination and the disquieting
feature is that the trial courts grant time.
The law requires special reasons to be
recorded for grant of time but the same is
not taken note of.

57.2. As has been noticed earlier,
in the instant case the cross-examination
has taken place after a year and 8 months
allowing ample time to pressurise the
witness and to gain over him by adopting
all kinds of tactics.

57.3. There is no cavil over the
proposition that there has to be a fair and
proper trial but the duty of the court while
conducting the trial is to be guided by the
mandate of the law, the conceptual fairness
and above all bearing in mind its
sacrosanct duty to arrive at the truth on the
basis of the material brought on record. If
an accused for his benefit takes the trial on
the path of total mockery, it cannot be
countenanced. The court has a sacred duty
to see that the trial is conducted as per law.
If adjournments are granted in this manner
it would tantamount to violation of the rule
of law and eventually turn such trials to a
farce. It is legally impermissible and
jurisprudentially abominable. The trial
courts are expected in law to follow the
command of the procedure relating to trial
and not yield to the request of the counsel
to grant adjournment for non-acceptable
reasons.

57.4. In fact, it is not at all
appreciable to call a witness for cross-
examination after such a long span of time.
It is imperative if the examination-in-chief
is over, the cross-examination should be
completed on the same day. If the
examination of a witness continues till late
hours the trial can be adjourned to the next
day
for
cross-examination.
It
is
inconceivable in law that the crossexamination should be deferred for such a
long time. It is anathema to the concept of
proper and fair trial.

57.5. The duty of the court is to
see that not only the interest of the accused
as per law is protected but also the societal
and collective interest is safeguarded. It is
distressing to note that despite series of
judgments of this Court, the habit of
granting adjournment, really an ailment,
continues. How long shall we say, "Awake!
Arise!". There is a constant discomfort.
Therefore, we think it appropriate that the
copies of the judgment be sent to the learned
Chief Justices of all the High Courts for
circulating the same among the learned trial
Judges with a command to follow the
principles relating to trial in a requisite
manner and not to defer the crossexamination of a witness at their pleasure or
at the leisure of the defence counsel, for it
eventually makes the trial an apology for trial
and compels the whole society to suffer
chicanery. Let it be remembered that law
cannot allowed to be lonely; a destitute."
Section 33 of the Indian Evidence Act:
5 All. Brijesh Yadav Vs. State of U.P.
1297

"33.
Relevancy
of
certain
evidence
for
proving,
in
subsequent
proceeding, the truth of facts therein
stated.-Evidence given by a witness in a
judicial proceeding, or before any person
authorized by law to take it, is relevant for
the purpose of proving, in a subsequent
judicial proceeding, or in a later stage of
the same judicial proceeding, the truth of
the facts which it states, when the witness is
dead or cannot be found, or is incapable of
giving evidence, or is kept out of the way by
the adverse party, or if his presence cannot
be obtained without an amount of delay or
expense which, under the circumstances of
the
case,
the
Court
considers
unreasonable:

Provided- that the proceeding
was between the same parties or their
representatives in interest; that the adverse
party in the first proceeding had the right
and opportunity to cross-examine; that the
questions in issue were substantially the
same in the first as in the second
proceeding.

Explanation-A criminal trial or
inquiry shall be deemed to be a proceeding
between the prosecutor and the accused
within the meaning of this section."

24. Section 33 is an exception to
the general rule which mandates adequate
facility for cross examining a witness.
However, in a case where a witness after
the completion of the chief examination and
while subjecting him to a substantial and
rigorous cross examination, did not choose
to get into the witness box on purpose, it is
for the court to utilize the said evidence
appropriately. The issues over which the
evidence is completed could be treated as
such by the court and then proceed.
Resultantly, the issues for which the cross
examination is not over would make the
entire
examination
as
inadmissible.
Ultimately, it is for the court to decide the
aforesaid aspect.

9. After hearing learned counsel for
the parties and taking into consideration the
fact that PW-1 has categorically nominated
the applicant to be the assailant, I do not
find it a fit case for grant of bail to the
applicant.

10. The bail application is found
devoid of merits and is, accordingly,
rejected.

11. However, it is directed that the
aforesaid case pending before the trial court
be decided as early as possible in view of
the principle as has been laid down in the
recent judgments of the Apex Court in the
cases of Vinod Kumar vs. State of
Punjab2, and Hussain and Another vs.
Union of India3, if there is no legal
impediment.

12. It is clarified that the observations
made herein are limited to the facts brought
in by the parties pertaining to the disposal
of
bail
application
and
the
said
observations shall have no bearing on the
merits of the case during trial.
----------
(2023) 5 ILRA 1297
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.04.2023

BEFORE

THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Crl. Misc. Bail Application No. 25623 of 2022

Brijesh Yadav ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party