# Ram Chandra (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 565
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-20
- **Case number:** Criminal Appeal No.1862 of 1989
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-chandra-in-jail-v-state-of-u-p-48819
- **Pages:** 17

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Sections 3 & 154- Hostile Witnesses- 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.

Settled law that relevant parts of evidence of a
hostile witness can be relied upon by the trial
court.

Indian Evidence Act, 1872- Sections 3 &
33 - Non-completion of cross-examination
of the witness- Not only the specific part
in which a witness has turned hostile but
the
circumstances
under
which
it
happened
can
also
be
considered,
particularly in a situation where the chiefexamination was completed and there are
circumstances
indicating
the
reasons
behind the subsequent statement, which
could be deciphered by the Court - The
part of the testimony of a witness whose
cross-examination is not over, would not
make
the
entire
examination
as
inadmissible. The evidence of the hostile
witness who after examination-in-chief
had
abandoned
the
case
of
the
prosecution because of the long delay in
566 INDIAN LAW REPORTS ALLAHABAD SERIES
completing his testimony, cannot be read
in favour of the defence or against the
prosecution. It is for the Court to utilize
the
said
evidence
appropriately
and
decide that the issues over which the
evidence is completed could be read in
evidence and the issues for which the
cross-examination
is
not
over,
as
inadmissible.

Where the cross examination of a witness who
has turned hostile has not been completed, then
it is the duty of the Court to consider the issues
over which the evidence has been completed as
admissible and also those issues for which the
cross- examination has not been completed as
inadmissible- Evidence of a hostile witness
whose
cross-examination
has
not
been
completed cannot be discarded.

Indian Evidence Act, 1872- Sections 3
&154- Hostile Witness - The place of the
incident was also proved by this witness
namely PW-1 in his cross-examination.
Nothing contrary could be found from the
record with this part of testimony of PW-1
which stood proved from his incomplete
cross-examination. The above noted part
of the testimony of PW-1, therefore, is to
be appreciated alongwith the surrounding
circumstances of the case, i.e. the other
evidence on record.

The relevant parts of the testimony of a witness,
whose cross-examination remained incomplete,
can be appreciated along with the other
evidence by the trial court and the same would
not be inadmissible in evidence.

Criminal Appeal rejected. (E-3)

Case law/ Judgements relied upon:-

## Text

_Characters 0–39,960 of 57,221. This is a partial read: ask again with offset=39960 for what follows._

6 All. Ram Chandra Vs. State of U.P.
565
facts of the instant case, we reach at an
irresistible conclusion that the prosecution
has failed to establish the guilt of the
accused-appellant
namely
Brij
Kishor
herein, beyond all reasonable doubt. The
benefit of doubt obviously has to go to the
accused-appellant Brij Kishor.

The judgment and order dated 4th
August, 1989 passed by the Ist Additional
District & Sessions Judge, Gorakhpur in
Sessions Trial No. 189 of 1987 is,
therefore, liable to be set aside and the
appeal deserve to be allowed.

We, therefore, allow this appeal
while setting aside the judgment of the trial
court.

The
accused-appellant
Brij
Kishor is in jail. He shall be released from
the jail forthwith, if he is not wanted in
relation to any other crime.

The office is directed to send
back the lower court record along with a
certified copy of this judgment for
information and necessary compliance.

The
compliance
report
be
furnished to this Court through the
Registrar General, High Court, Allahabad.

Before
parting
with
this
judgment, we record our appreciation to Sri
Raunak Chaturvedi learned Amicus Curiae
who rendered valuable assistance to the
Court. The Court quantifies Rs. 15,000/-
(Rupees Fifteen Thousand only) to be paid
to
Sri
Raunak
Chaturvedi,
learned
Advocate as fee for his precious time
provided in preparation and hearing of this
Criminal Appeal. The said amount shall be
paid to him by the Registry of the Court
within the shortest possible time.
----------
(2022)06ILR A565
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Appeal No.1862 of 1989

Ram Chandra ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri P.N. Lal, Sri R.L. Varma

Counsel for the Respondent:
D.G.A., A.G.A.

Criminal Law- Indian Evidence Act, 1872-
Sections 3 & 154- Hostile Witnesses- 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.

Settled law that relevant parts of evidence of a
hostile witness can be relied upon by the trial
court.

Indian Evidence Act, 1872- Sections 3 &
33 - Non-completion of cross-examination
of the witness- Not only the specific part
in which a witness has turned hostile but
the
circumstances
under
which
it
happened
can
also
be
considered,
particularly in a situation where the chiefexamination was completed and there are
circumstances
indicating
the
reasons
behind the subsequent statement, which
could be deciphered by the Court - The
part of the testimony of a witness whose
cross-examination is not over, would not
make
the
entire
examination
as
inadmissible. The evidence of the hostile
witness who after examination-in-chief
had
abandoned
the
case
of
the
prosecution because of the long delay in
566 INDIAN LAW REPORTS ALLAHABAD SERIES
completing his testimony, cannot be read
in favour of the defence or against the
prosecution. It is for the Court to utilize
the
said
evidence
appropriately
and
decide that the issues over which the
evidence is completed could be read in
evidence and the issues for which the
cross-examination
is
not
over,
as
inadmissible.

Where the cross examination of a witness who
has turned hostile has not been completed, then
it is the duty of the Court to consider the issues
over which the evidence has been completed as
admissible and also those issues for which the
cross- examination has not been completed as
inadmissible- Evidence of a hostile witness
whose
cross-examination
has
not
been
completed cannot be discarded.

Indian Evidence Act, 1872- Sections 3
&154- Hostile Witness - The place of the
incident was also proved by this witness
namely PW-1 in his cross-examination.
Nothing contrary could be found from the
record with this part of testimony of PW-1
which stood proved from his incomplete
cross-examination. The above noted part
of the testimony of PW-1, therefore, is to
be appreciated alongwith the surrounding
circumstances of the case, i.e. the other
evidence on record.

The relevant parts of the testimony of a witness,
whose cross-examination remained incomplete,
can be appreciated along with the other
evidence by the trial court and the same would
not be inadmissible in evidence.

Criminal Appeal rejected. (E-3)

Case law/ Judgements relied upon:-

1. Rajesh Yadav & anr. etc. Vs St. of U.P, 2022
(3) ADJ (SC)

2. C. Muniappan Vs St. of T.N (2010) 9 SCC
567

3. Jodhi @ Ayodhya Vs St. of U.P 2014(87) ACC
543

4. St. of U.P. Vs Ramesh Prasad Misra & anr.
(1996) 10 SCC 360

5. Subbu Singh Vs St. by Public Prosr. (2009) 6
SCC 462

6. Vinod Kumar Vs St. of Punj. (2015) 3 SCC
220

7. St. of U.P. Vs Moti Ram & ors. (1990) 4 SCC
389

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri R.L. Varma learned
counsel for the appellant and Sri Roopak
Chaubey learned A.G.A. for the Staterespondent.

2. This appeal is directed against the
judgment and order dated 11.8.1989 passed
by the Special/Additional Sessions Judge,
Shahjahanpur in Sessions Trial No. 470 of
1987 (State vs. Ram Chandra) arising out
of Case Crime No. 235/1987, under Section
302 IPC, Police Station Jalalabad, District
Shahjahanpur whereby appellant Ram
Chandra has been convicted of the offence
under Section 302 IPC and sentenced to life
imprisonment.

3. The first information report of the
incident, occurred on 25.7.1987 at about
6:00 PM, was lodged by Puttu son of
Lakhan Kahar (PW-1) on the same day, i.e.
25.7.1987 at about 22:15 hours. As per the
case of prosecution, the wife of the first
informant named as Smt. Laraiti (deceased)
was the daughter of one Jodha Kahar
whose only son Maiku Lal had died a year
before the incident and the wife of Jodha
Kahar had predeceased him. The deceased
Maiku Lal had no children. Jodha Kahar
was survived by two daughters Laraiti, wife
of the first informant and Kalawati mother
6 All. Ram Chandra Vs. State of U.P.
567
of the appellant. A civil case about the
inheritance of 40 Bighas of land of
deceased Jodha was going on between the
wife of the first informant and sons of his
brother-in-law, namely Ram Chandra, Lala
Ram and Roop Ram, residents of Village
Mishripur, P.S. Sadar Bazar, District
Shahjahanpur, wherein 27.7.1987 was the
date fixed.

It is the case of the first informant
that the said civil litigation was the cause of
enmity between the parties. On 25.7.1987
at about 6:00 PM, the wife of the first
informant Smt. Laraiti was collecting
"Nimouri" from the Neem tree of one Raja
Ram son of Rameshwar Dayal near the
village. From the North side, Ram Chandra
son of Jodha came having 'tabal' in his hand
and as soon as he reached near Smt. Laraiti,
he hit in her head by 'tabal'. The first
informant, Ashiq Ali son of Munir, Krishna
Pal, Chhote son of Maiku, Badri son of
Sipahi and other villagers ran towards him
and at that time the accused-appellant gave
another blow of 'tabal' on the neck of the
deceased and ran away towards the NorthEast direction. The first informant and the
witnesses chased him but could not nab
him. The injured Smt. Laraiti was brought
to her home and while they were arranging
for the vehicle to take her to the hospital,
she died at around 8:30 PM.

4. The factum of lodging of the
written report on the date of the incident by
PW-1 (the first informant) was proved by
PW-5, the Head Constable posted in P.S.
Jalalabad, District Shahjahanpur. He stated
that the written report was given to him by
the first informant (PW-1) and on the basis
thereof, Check report was prepared as
Check No. 100. PW-5 proved the Check
report being in his handwriting and
signature, marked as Exhibit Ka-2. The GD
entry of the FIR was made at GD Rapat
No. 75 Time 22:15 Hours on 25.7.1987, the
original of which was produced in the
Court. The certified copy of the carbon
copy of the GD Rapat entry, prepared in the
same process was filed and proved as
Exhibit Ka-3. PW-5 had denied the
suggestion of the report having been
prepared Ante-time.

5. The inquest of the dead body was
conducted on 26.7.1987 at about 8:30 AM
in the house of the deceased and the inquest
report is proved as Exhibit Ka-8.

6. PW-4, the Constable posted in P.S.
Jalalabad at the time of the incident, stated
that the body of deceased Laraiti kept in a
sealed cloth alongwith the sample seal and
relevant papers was handed over to him and
Pooran Chaukidar on 26.7.1987 at about
8:30 AM to carry for the postmortem and
they moved to Shahjahanpur and handed
over the dead body in the Police Lines
Shahjahanpur. It was then sent for the
postmortem and was handed over to the
doctor in the sealed state alongwith the
sample seal. The body was identified by
them before the doctor and the postmortem
was done. After completion of the
postmortem, one sealed bundle of clothes
of the deceased was submitted in the police
station concerned alongwith all the relevant
papers kept in two sealed envelops. PW-4
stated that during the entire process, no one
had touched the dead body.

7. PW-6, the Doctor who conducted
autopsy, stated on oath that on 26.7.1987
when he was posted in the District
Hospital, the body of deceased Laraiti was
brought by Constable Magan Singh CP No.
709 with Pooran in sealed state and the
sample seal was tallied with the seal on the
bundle of the dead body. It was then
opened and the body was identified by two
police personnel who brought it. The
568 INDIAN LAW REPORTS ALLAHABAD SERIES
postmortem was conducted at about 4:15
PM. The external appearance of the dead
body as indicated in the postmortem
report:-

The age of the deceased about 60
years, average build body, Rigor Mortis
passed on from upper extremity and was
passing off from lower extremity. Eyes and
mouth were closed.

The ante-mortem injuries found
on the person of the deceased are:

(1) Incised wound 16 cm x 2 cm x
Bone deep present over the Right side of
the Head. 10 cm above the Right ear, Bone
is cut underneath the injury. Margins are
clean cut

(2) Incised wound 7 cm x 1 cm x
muscle deep on the Right side lower part of
neck 1 cm above the Right clavicle in
middle. Margins clean cut.

On internal examination, right
parietal bone was found fractured. In
stomach, semi digested food of about 200
gms. was present. In small intestine, gases
were present; faecal matter was present in
the large intestine. The cause of death
indicated in the postmortem report is
"Coma as a result of ante-mortem head
injury". The postmortem report was proved
in the handwriting and signature of PW-6
as Exhibit Ka-4. PW-6 stated that both the
injuries could be caused by sharp-edged
weapon and were sufficient to cause death.
The proximate time of death as indicated in
the postmortem report was about one day.

8. In cross, PW-6 admitted that there
might be a gap of 6-7 hours on both sides.
On the nature of the wounds, he stated that
incised wounds could have been caused by
any sharp edged weapon such as Sword,
Knife, Kanta, Khurpi or Kulhari.

9. The Investigating Officer had
entered in the witness-box as PW-7. He
proved that the initial investigation was
conducted by one Senior Inspector I.H.
Jafri and the investigation was handed over
to him on 5.8.1987. He arrested accused
Ram Chandra on 20.8.1987 and submitted
the charge sheet on the same day, which
was proved in his handwriting and
signature as Exhibit Ka-5. PW-7 stated that
the previous Investigating Officer had
conducted
the
investigation
between
25.7.1987 to 28.7.1987 and recorded
statements of the witnesses namely the first
informant Puttu, Ashiq Ali and Chhote and
inspected the spot. The site plan on the
record was proved in the handwriting and
signature of the previous Investigating
Officer, identified by PW-7, as Exhibit Ka6.

PW-7, in cross, stated that he did
not record the statement of any of accused
nor he ever participated in the investigation
alongwith
the
previous
Investigating
Officer I.H. Jafri.

10. The formal witnesses, in the
instant case, proved the reports prepared by
them from the inception of the case, i.e.
lodging of the first information report to the
submission of the charge sheet.

11. Nothing contrary to the case of the
prosecution could be elicited from their
testimony.

12. Amongst the witnesses of fact,
three in number, PW-1 is the first
informant Puttu son of Lakhan, husband of
the deceased. He stated on oath that he
knew accused Ram Chandra who was son
6 All. Ram Chandra Vs. State of U.P.
569
of his brother-in-law. His father-in-law was
Jodha Kahar whose son and wife had died
and whose agricultural land was inherited
by Smt. Laraiti, the deceased as also the
mother of accused-appellant Ram Chandra,
namely Smt. Kalawati and that they both
were legal heirs of deceased Jodha Kahar.
Two sons of Smt. Kalawati namely Lala
Ram and Roop Ram, brothers of accused
Ram Chandra got prepared a forged Will of
the land in dispute in their names and a
case related to the Will was going on
wherein the date fixed was about three days
after of the incident. Smt. Laraiti had all
hopes of success in the case and on account
of this enmity, accused Ram Chandra
caused murder of Smt. Laraiti (the
deceased) so that the landed property may
come to the share of him and his brothers.

While narrating the incident, PW1 reiterated his version in the written report
that two blows of 'tabal' were given by
accused Ram Chandra to deceased Laraiti
in the field of Raja Ram while she was
collecting 'Nimouri' from the Neem tree
and that he brought his wife to his house
from the place of the incident, PW-1 stated
that where Ram Chandra gave blow of
'tabal', he was cutting the grass and there he
heard the cries of deceased Laraiti. The
place where he was cutting the grass was at
a distance of 30-40 paces from the place of
the incident. On the alarm raised by him
from that place itself, the witnesses Badri,
Chhote, Krishna Pal and Ashiq Ali who
were cutting grass nearby also reached the
spot and witnessed the incident. On the hue
and cries raised by them, the accused fled
away towards the North-Eastern direction
and the witnesses also chased the accused.
The report of the incident was scribed by
Awadhesh Kumar Shukla on his dictation
and it was read over to him then he put his
signature. The written report on the record
was read over to this witness (PW-1) and
he deposed that it was the same report
which was dictated by him. The written
report is marked as Exhibit Ka-1 on the
testimony of this witness. PW-1 further
stated that he went to file the written report
in P.S. Jalalabad alongwith the Chaukidar
and it was lodged at around 10:15 PM.

In cross, PW-1 described the
topography of the place of the incident and
location of his house in the village. When
the written report (Exhibit Ka-1" was put to
this witness, in cross, he stated that he put
his thumb impression on the same. He
further stated that there was one Chaukidar
in the village, and he called him and then
after talking to him, the written report was
scribed.
On
a
suggestion,
PW-1
categorically stated that the Investigating
Officer did not ask him to call the
Chaukidar rather he himself called him at
about 7-7:30 PM and it became dark by
then. After writing the report, he went to
the police station and the Investigating
Officer met him there only. PW-1 stated
that the Investigating Officer came to the
village after lodging of the report and after
that he (PW-1) did not go to the police
station. The body was taken for the
postmortem at about 12:00 Noon by a
tractor and he alongwith the police
personnel accompanied it.

In cross, PW-1 further narrated
the location of the Neem Tree in the field
of Raja Ram. He then stated that after his
wife got injured, he picked her and put her
on a cot.

It is pertinent to note here that
though the examination-in-chief of PW-1
was recorded on 2.5.1989 and he was
cross-examined to some extent but without
completion of his cross-examination, for
570 INDIAN LAW REPORTS ALLAHABAD SERIES
the reasons best known to the Judicial
Officer concerned, he had proceeded to
record the statement of other witnesses of
fact namely PW-2 and PW-3 on the same
day.

13. We may further record that the
cross-examination of PW-3 was concluded
on
2.5.1989
whereas
the
crossexaminations of PW-1 and PW-2 were not
completed by the Court concerned. After
more than two months, i.e. 20.7.1989,
when the case was taken up for crossexamination of the remaining witnesses,
i.e. PW-1 and PW-2, it was transpired that
PW-1 Puttu had died a month before and
the report in that regard was submitted by
the police station concerned on 22.6.1989.
The trial Judge, therefore, noted that the
attendance of PW-1 Puttu could not be
procured for his cross-examination by the
defence. PW-2, however, was crossexamined on 20.7.1989 itself.

14. We may further record that PW-2
& PW-3 both had been declared hostile on
2.5.1989, the first day when only the
evidence of PW-3 was concluded.

From the statement of PW-2,
Ashiq Ali son of Munir, in chief, it may be
noted that he had fixed the time of the
incident being at about 6:00 PM and stated
that when the incident had occurred, he was
present at some distance wherefrom he
could see the spot but he could not witness
the accused giving the blow of 'tabal' to the
wife of Puttu (PW-1) and reached at the
spot on hearing the alarm (cries). He had
seen the accused Ram Chandra running
away from the place of the incident but
could not tell as to what was there in his
hand as he went quite far away. He further
stated that he saw the injuries of wife of
Puttu (deceased) when he reached the spot.
He then stated that he was not cutting the
grass but he was in Khandhar of the village
and reached at the place of the incident on
hearing cries. This witness had been
declared hostile at this stage and was
permitted to be cross-examined by the
prosecution.

In his incomplete cross recorded
on the first day, i.e. 2.5.1989, PW-2
admitted that there existed a Neem tree in
the field of Raja Ram and the same was
also existing at the time of the incident and
was also existing at the time of his
deposition. Smt. Laraiti, the deceased used
to collect 'Nimouri' and on the date of the
incident, she also went there for the same
purpose. Chhote, Badri and Krishna Pal
were also present on the spot. On another
question, PW-2 stated that the Investigating
Officer had interrogated him but he did not
give the statement that he was present in
the field of Raja Ram for grazing his cattle.
He also denied his previous statement that
accused Ram Chandra killed deceased
Laraiti from 'tabal'. PW-2 further stated that
though he went to identify accused Ram
Chandra in jail but he knew him from
before. He had denied having witnessed the
accused hitting the deceased from 'tabal'
and that he was making a wrong statement
to save the accused. It is noted that the
record indicates that the cross-examination
of this witness was resumed on oath on
2.5.1989 after lunch but it was not
completed. It is evident that without
completion of the cross-examination of this
witness, the statement of PW-3 was
recorded and concluded.

On recall for cross-examination
on 20.7.1989, this witness had retracted
from his previous deposition in the Court
and stated that he did not see the assailant
who was running away from the place of
6 All. Ram Chandra Vs. State of U.P.
571
the incident, inasmuch as, that person was
running towards the North-East direction
and he (PW-2) was coming from the SouthWest direction, that means they were on the
opposite sides. He further stated that the
person who was running away from the
place of the incident was at a distance of
about 100 yards from him and he could see
only his back and not the front. At that
time, sun had already been set.

Further, this witness (PW-2) also
retracted from his previous statement about
identification of accused Ram Chandra and
stated that the complete identity of the
accused was disclosed to him by the
Investigating Officer and then he was
simply asked to put his hand on the same
person who was pointed out by the
Investigating Officer.

15. PW-3 Chhote son of Maiku whose
examination-in-chief
and
cross
was
completed on 2.5.1989 itself had completely
denied his presence near the place of the
incident or witnessing the incident. In cross,
he retracted from his previous statement
under Section 161 Cr.P.C. by stating that the
Investigating Officer did not interrogate him
and as to how his statement was written was
not known to him. He (PW-3) then stated that
he identified the accused as he knew him
prior to the incident. In cross for the accused,
PW-3 stated that the Investigating Officer
had disclosed the identity of the accused such
as construction of his face and height to him
prior to the identification parade but had
denied that he identified the accused on the
asking of the Investigating Officer and that he
did not know the accused from before the
incident.

16. To assail the judgment of
conviction, it is argued by the learned
counsel for the appellant that the incident
had occurred in the dead of night and no
one had seen the same. For this reason, the
inquest was conducted on the next day, i.e.
26.7.1987 at about 8:30 AM.

17. It was argued that there are
material contradictions in the statement of
the prosecution witnesses about the time of
lodging of the FIR and the dead body
having been taken for the postmortem. The
first informant (PW-1), the husband of
deceased
had
falsely
implicated
the
appellant on account of enmity as stated by
him. The motive for false implication of the
accused in a blind murder is evident from
the record. No one had supported the case
of the prosecution and the independent
witnesses had turned hostile. Even the
testimony of PW-1 could not be completed
as he had died before completion of his
cross-examination. It is urged that the
cross-examination is the most important
tool in the testimony of a witness to know
the truth which can be culled out only in his
cross. The evidence of PW-1, thus, would
not be admissible. The first informant (PW1) being a related and partison witness, he
cannot be said to be a wholly reliable
witness. There is, thus, no evidence of
implication of the accused in the criminal
case. The trial court had committed a grave
error of law in recording conviction based
on the testimony of PW-1.

18. Reliance is placed on the decision
of the Lucknow Bench of this Court in
Jodhi @ Ayodhya vs. State of U.P.1
decided on 13th August, 2014 to assert that
uncorroborated part of the testimony of
PW-1 on account of non-completion of his
cross-examination, has to be thrown away.
The result is that the prosecution has not
succeeded in proving its case by definite
evidence that the deceased Laraiti was
killed by the accused Ram Chandra.
572 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Learned AGA, on the other hand,
submitted that in a case where crossexamination of a witness could not be
completed, his testimony cannot be thrown
away in toto. Reliance is placed on the
decision of the Apex Court in Rajesh
Yadav & another etc. vs. State of U.P.2
to assert that the issue of admissibility of
evidence in a case where the crossexamination of a witness is not over has
been addressed by the Apex Court and it
was held therein that in a given case it has
to be decided by the Court as to
admissibility of evidence of the witness
whose cross-examination was not over.

As per the submissions of the
learned AGA though the cross-examination
of PW-1 could not be completed but his
deposition in the Court on 2.5.1989 in the
examination-in-chief and cross cannot be
thrown away in totality rather if his evidence
is read alongwith the evidence of the hostile
witness PW-2, coupled with the fact of
lodging of a prompt first information report,
it is proved that the murder of deceased
Laraiti was committed by accused-appellant
Ram Chandra at about 6:00 PM in the field of
Raja Ram.

20. Heard learned counsels for the
parties and perused the record. Before
entering into the factual aspect of the case, we
find it apt to discuss the law relating to
appreciation of testimony of a hostile witness.

21. It is settled law that the testimony
of a witness who though produced by the
prosecution in the witness-box but turned
to depose in favour of the opposite party, is
not to be discarded as a whole. There are
two categories of hostile witness, one who
may depose in favour of the parties in
whose favour it is meant to be giving
through his chief examination, while later
on change his view in favour of the
opposite side. The second category is
where a witness does not support the case
of
the
party
starting
from
chief
examination. This classification has to be
borne in mind by the Court while analysing
the
testimony
of
a hostile
witness.
Reference be made to the decision of the
Apex Court in Rajesh Yadav (supra) (Para
21) emphasis added.

22. We may note that, in the instant
case, PW-2 who has been declared hostile
falls in the first category as he supported
the case of the prosecution to some extent
in chief examination and then became
hostile, whereas PW-3 would fall in the
second category as he did not support the
case of the prosecution from the beginning,
i.e. in the chief examination itself.

With respect to the first category
in which PW-2 falls, it is settled that the
Court is not denuded of its power to make
an appropriate assessment of the evidence
rendered by such a witness. It was observed
in Rajesh Yadav (supra) that even a chief
examination could be termed as evidence.
Such evidence would become complete
after the cross-examination. Once evidence
is completed, the said testimony as a whole
is meant for the Court to assess and
appreciate qua a fact. Therefore, not only
the specific part in which a witness has
turned hostile but the circumstances under
which it happened can also be considered,
particularly in a situation where the chiefexamination was completed and there are
circumstances
indicating
the
reasons
behind the subsequent statement, which
could be deciphered by the Court. It is held
therein that it is well within the powers of
the Court to make an assessment in a
matter before it and come to the correct
conclusion.
6 All. Ram Chandra Vs. State of U.P.
573

The decision in C. Muniappan v.
State of T.N.3 of the Apex Court was
noted therein to reiterate that the evidence
of a prosecution witness cannot be rejected
in toto merely because the prosecution
choose to treat him as hostile and crossexamined 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.

23. It is settled from a catena of
decisions of the Apex Court that the
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 the
defence can be relied upon. The law that
can be summarised from the above noted
decisions is 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. [Reference
State of U.P. vs. Ramesh Prasad Misra
and another4 and Subbu Singh v. State
by Public Prosecutor5]

24. Analyzing the testimony of the
prosecution witnesses of fact, we may record,
at the out set, that nothing could be elicited in
favour of the prosecution case from the
statement of PW-3 who had turned hostile
and completely retracted from his previous
statement. His testimony also cannot be read
in favour of the defence as he had completely
denied his presence at or near the place of the
incident and also admitted that he knew
accused before the incident and for this
reason he had identified him in the
identification parade conducted by the police.

25. We then proceed to analyze the
testimony of another hostile witness, PW-2,
in light of the above discussed legal position
stated by the Apex Court to appreciate the
testimony of a hostile witness.

Analyzing the testimony of PW-2,
we may note that he had fixed the place, time
and date of the incident, which is in
corroboration
with
the
case
of
the
prosecution. From the testimony of PW-2, it
is proved that the incident had occurred in the
field of Raja Ram at about 6:00 PM when
deceased
Smt.
Laraiti
was
collecting
'Nimouri' near the Neem tree. PW-2 also
proved his presence at a place wherefrom he
could witness the place of the incident and
that he had reached at the place of the
incident on hearing the cries and also seen the
accused Raja Chandra running away from the
said place. PW-2 also stated in chief that
when he went at the spot he had seen the
injuries of the deceased.

From the above statement of PW-2
in chief, it is evident that he had only denied
having seen accused Ram Chandra hitting the
deceased with 'tabal' at the place of the
incident and stated that he did not see any
weapon in the hands of accused Ram
Chandra while he was running away from the
spot of the incident.

26. For this reason only this witness
was declared hostile by the prosecution and
in his incomplete cross-examination on the
first date, i.e. 2.5.1989, PW-2 also fixed the
presence of other witnesses namely Chhote,
Badri and Krishna Pal at the place of the
incident which is in line with the statement
in the written report lodged by PW-1 as
also the statement of PW-1 before the
Court. PW-2 also admitted, in cross, that he
was interrogated by the Investigating
Officer though he had retracted from the
574 INDIAN LAW REPORTS ALLAHABAD SERIES
contents of his statement. PW-2 also
admitted that he went to identify accused
Ram Chandra and he knew him before the
incident. PW-2, on recall, when examined
on 20.7.1989, after a period of two months,
after the death of PW-1 the first informant,
retracted even from his previous version in
the Court made on 2.5.1989 to the extent
that he had seen accused Ram Chandra
running away from the spot and that he had
identified the accused before the police on
his own. From the testimony of PW-2, at
least, it is proved that the deceased was
attacked in the field of Raja Ram near the
Neem tree where she used to go to collect
'Nimouri' on the fateful day at about 6:00
PM. The date, time and place of the
incident, thus, had been proved by PW-2.

27.
 The
star
witness
of
the
prosecution is PW-1, who was husband of
the deceased and the first informant. In his
deposition in the Court, PW-1 proved his
version in the FIR with regard to the place,
date, time and the manner of the incident
and the presence of the eye-witnesses on
the spot. He also proved the written report
lodged by him at about 10:15 PM as
Exhibit Ka-1. PW-1 also proved the enmity
with the accused, which according to him
was the motive of causing the murder of his
wife. He also proved that he took his
injured wife from the field of Raja Ram to
his house wherein she had succumbed to
her injuries. The inquest was conducted on
the next day, i.e. 26.7.1989 in the house of
the first informant.

28. It was, thus, proved by the
prosecution witnesses that the homicidal
death of the deceased Smt. Laraiti was caused
outside her house and she was taken to her
house by PW-1 (her husband) after she
received injuries in the field of Raja Ram.

All the above facts could not be
disputed by the learned counsel for the
appellant in his arguments.

Further, PW-1 was consistent in
his
testimony,
which
could
not
be
completed on account of his death. His
testimony is clear to the extent that he was
the eye-witness of the incident and he had
seen the accused-appellant causing injuries
to his wife by a sharp edged weapon (tabal)
which had resulted in her death. The
motive for the offence committed by
accused-appellant has also been proved by
PW-1 in his examination-in-chief. From the
perusal of the testimony of PW-1, it is
evident that he proved the written report
(Exhibit Ka-1) and its content and the fact
that he went to the police station alongwith
the village Chaukidar to lodge the first
report and the Investigating Officer reached
the spot after getting the said information.
The inquest was conducted and the body
was sent for postmortem. The narration of
fact by PW-1 with regard to the lodging of
the first information report by giving a
written report as also the inquest conducted
in his house is corroborated from the
documentary evidences on record.

The issue which has been raised
by the learned counsel for the appellant is
that since the cross-examination of PW-1
could not be completed, his testimony
cannot be relied to convict the appellant.
The contention is that the corroboration of
an oral testimony is required by crossexamination of the witness, which is an
important tool to cull out falsity in the
version of the witness in his examinationin-chief. The testimony of PW-1 on
account
of
his
death,
remained
uncorroborated and hence the trial court
had committed a grave error of law in
6 All. Ram Chandra Vs. State of U.P.
575
relying upon his version to convict the
accused-appellant.

29. To deal with this submission, we
may first go through the authoritative
pronouncements
of
the
Apex
Court,
wherein the guidelines to deal with such a
situation has been laid down.

30. However, before appreciation of
the legal position, we would like to record
our assessment of the circumstances
indicating
the
reasons
behind
the
subsequent statement of PW-2 dated
20.7.1989, wherein he had retracted from
his previous statement in-chief and cross,
recorded on 2.5.1989.

31. We may record that the manner in
which the trial court, in the instant case,
had proceeded to examine the witnesses
cannot be approved of.

We may also note that the trial
Judge while recording his finding had also
expressed his dissatisfaction in the manner in
which his predecessor trial Judge had recorded
the statements of the prosecution witnesses of
fact. The record reflects that three prosecution
witnesses of facts were examined on the same
day, i.e. on 2.5.1989, but not in the correct
order of examination. We are not able to
understand as to why the trial court had
proceeded to record the statements of PW-2
and PW-3 without completing the crossexamination of PW-1 on 2.5.1989. We are
also astonished with pain to note that even
deposition of PW-2 Ashiq Ali was not
completed on 2.9.1989 and when his crossexamination had continued after lunch, this
witness (PW-2) though was administered oath
but his cross-examination was not proceeded,
for the reasons best known to the Presiding
Officer concerned. It is not understandable nor
acceptable that the trial Judge had proceeded
to record the statement of PW-3 without
completing the testimony of PW-1 and PW-2
in the chronological order.

32. Surprisingly enough, the deposition
of PW-3 was completed on the same day, i.e.
2.5.1989 and the cross-examination of PW-1
and PW-2 could not be resumed before
20.7.1989, for about two months. The
explanation for delay in the cross-examination
of PW-1 and PW-2 and their non-examination
on the date of their appearance, obviously,
could not be given by the prosecution on the
query made by the Court. However, it is
evident from the record that a report dated
22.6.1989 was received on summoning of
PW-1 and PW-2 Ashiq Ali for crossexamination that PW-1, Puttu had died about a
month before. The reasons for retraction of
PW-2 from his previous version in the Court
recorded on 2.5.1989 after death of PW-1, the
husband of deceased, are not far to seek.

33. It seems from the record of the
instant case that the defence had succeeded
in manipulating the trial Judge who had
recorded statements of the witnesses of fact
and in order to frustrate the case of the
prosecution, the testimony of PW-1 and
PW-2 was not completed on the first date,
i.e. 2.5.1989. Nothing could be discerned
about the role of the prosecuting officer
after such a long time as we are deciding
the case of the year 1989 in the year 2022.
However, this much can be concluded that
the trial Judge who had recorded the
statements of the prosecution witnesses of
fact (PW-1 to PW-3) did not act fairly. The
right of the parties, whether defence or the
prosecution, for a fair trial has been
seriously hampered in the present case.

34. Coming to the argument of the
learned counsel for the appellant that the
testimony of PW-1 cannot be read in
576 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence and has to be discarded in toto as
his
cross-examination
could
not
be
completed, we may gain benefit from the
decision of the Apex Court in Rajesh
Yadav (supra), wherein while dealing with
the Section 3 of the Evidence Act, 1872,
the Apex Court had discussed the methods
for analysing the matters before the Court,
i.e. the evidence in proving the existence of
a fact. It was observed that the entire
enactment (the Evidence Act) is meant to
facilitate the Court to come to an
appropriate conclusion in proving a fact.
There are two methods by which the court
is expected to come to such a decision. (i)
the Court can come to a conclusion on the
existence of a fact by merely considering
the matters before it, in forming an opinion
that it does exist. This belief of the Court is
based upon the assessment of the matters
before it. (ii) Alternatively, the Court can
consider the said existence as probable
from the perspective of a prudent man who
might act on the supposition that it exists.

The question as to the choice of
the options is best left to the Court to
decide. The said decision might impinge
upon the quality of the matters before it.

It was observed that a judge has
to transform into a prudent man and assess
the existence of a fact after considering the
matters through that lens instead of a judge.
It is only after undertaking the said exercise
can he resume his role as a judge to
proceed further in the case.

It was further noted that the
provision in Section 3 of the Evidence Act
indicates that the court is concerned with
the existence of a fact both in issue and
relevant, as against a whole testimony.
Thus, the concentration is on the proof of a
fact for which a witness is required.
Therefore, a court can appreciate and
accept the testimony of a witness on a
particular issue while rejecting it on others
since it focuses on an issue of fact to be
proved. However, the evidence of a witness
as whole is a matter for the court to decide
on the probability of proving a fact which
is inclusive of the credibility of the witness.
Whether an issue is concluded or not is also
a Court's domain.

It was further noted that evidence
of a witness can be divided into three
categories broadly, namely, (i) wholly
reliable; (ii) wholly unreliable; and (iii)
neither
wholly
reliable
nor
wholly
unreliable. The manner in which the
testimony
of
a
witness
would
be
appreciated depends upon the category in
which it was considered by the Court.

As
to
the
law
relating
to
appreciation of the testimony of a hostile
witness, we would like to refer to the
foregoing paragraphs of this judgment to
note that the evidence of a hostile witness
is not to be rejected as a whole.

As noted in Rajesh Yadav
(supra), the Court can also assess the
circumstance in which a witness had turned
hostile, as discussed above.

35.