Public Prosecutors' Duty To Establish That A Hostile Witness Is Deliberately Resiling From Police Statement Recorded U/S. 161 CrPC: SC

The Supreme Court has highlighted that the Public Prosecutor must cross-examine a hostile witness in detail and try to elucidate the truth & also establish that the witness is speaking a lie and has deliberately resiled from his police statement recorded under Section 161 of the Cr.P.C.

It said that a good, seasoned and experienced Public Prosecutor will not only bring the contradictions on record, but will also cross-examine the hostile witness at length to establish that he or she had actually witnessed the incident as narrated in his/her police statement. 

In that context, the Bench of Justice JB Pardiwala and Justice Manoj Misra observed that, "Over a period of time, we have noticed, while hearing criminal appeals, that there is practically no effective and meaningful crossexamination by the Public Prosecutor of a hostile witness. All that the Public Prosecutor would do is to confront the hostile witness with his/her police statement recorded under Section 161 of the Cr.P.C. and contradict him/her with the same. The only thing that the Public Prosecutor would do is to bring the contradictions on record and thereafter prove such contradictions through the evidence of the Investigating Officer. This is not sufficient. The object of the cross-examination is to impeach the accuracy, credibility and general value of the evidence given in-chief; to sift the facts already stated by the witness; to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party."

Counsel Rishi Malhotra appeared for the appellant, while Counsel Apoorv Kurup appeared for the State. 

The appellant was accused of the murder of his wife, Saira, in 1995. The prosecution alleged that the appellant and Saira had a strained marital relationship, often arguing over her late-night returns home. On the night of the incident, an altercation ensued, during which the appellant allegedly stabbed Saira multiple times with a knife. Their five-year-old daughter, Shaheena, was said to be the sole eyewitness to the incident.

Upon police arrival, Saira was found dead with multiple stab wounds, while the appellant had superficial injuries. The appellant claimed that unknown intruders had attacked them, but Shaheena's testimony contradicted this, stating that thieves assaulted her parents. However, Shaheena later recanted her statement in court.

Evidence, including the discovery of the murder weapon and forensic analysis of blood-stained clothes, pointed to the appellant's guilt. Despite his denial and the lack of direct evidence linking him to the crime, the trial court found him guilty of murder under IPC Section 302. The High Court upheld this decision, citing the appellant's inconsistent statements and failure to provide a plausible explanation for the incident.

Despite Shaheena's retraction and inconsistencies in witness testimonies regarding dowry harassment, the courts concluded that the appellant was the perpetrator based on circumstantial evidence. As a result, the appeal was dismissed, and the appellant's conviction and sentence were upheld.

The counsel for the defendant submitted that the sole basis to convict the appellant was that the explanation offered by him was not sufficient to save him from the adverse inference drawn against him under Section 106 of the Evidence Act. He argued that the High Court failed to appreciate that the prosecution has to stand on its own legs and prove its case beyond reasonable doubt and that the prosecution cannot throw the entire burden on the accused to prove his innocence. 

The Apex Court observed that under Section 106 of the Evidence Act, a manifest distinction exists between the burden of proof and the burden of going forward with the evidence.

It was specified that while the burden of proof for establishing the foundation of an issue typically rests on the party making the affirmative proposition, the burden of evidence or explanation may shift based on the testimony presented. Specifically, if the prosecution provides evidence that, if accepted, would prove the accused's guilt beyond a reasonable doubt, the accused should present counter-evidence if available.

It was further observed that, "If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book."

Subsequently, it was held that the foundational facts of the case, which were duly proved, justified the invoking of Section 106 of the Evidence Act by the High Court.

In light of the same, it was held that, "the High Court committed no error in affirming the judgment and order of conviction passed by the trial court, holding the appellant guilty of the offence of murder of his wife".

Appearances:

Appellant: Counsel Rishi Malhotra

Defendant: Counsel Apoorv Kurup

Cause Title: Anees vs The State Govt of NCT

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