Complete Examination Of Private Witnesses, Both Chief & Cross, On Same Day: Allahabad HC Directs Trial Court Judges In UP

In a significant order, the Allahabad High Court has directed the Sessions Courts throughout the state to make an endeavor to complete the examination of the private witnesses, both chief, and cross, on the same day, as far as possible.The Bench of Justice Vikas Kunvar Srivastav and Justice Sunita Agarwal further directed the trial judges in the state to take up the examination of the private witnesses first, before proceeding with that of the official witnesses."This approach is needed to ensure fair and proper trial which is the duty of the trial Court and also to curb the menace where the private witnesses turned hostile for obvious reasons because of long adjournments, permitting an act of maneuvering," the Court added as it referred to the Apex Court's recent ruling in the case of Rajesh Yadav vs State of UP 2022 LiveLaw (SC) 137.The case in brief Essentially, the Court was hearing an appeal filed by the Murder Convict (one Ram Chandra) against the judgment and order of 1989 passed by the Special/Additional Sessions Judge, Shahjahanpur, whereby he had been sentenced to life imprisonment.The case pertained to the murder of one Laraiti by the appellant-convict on account of enmity due to the ongoing civil litigation between the parties. The first informant (PW-1) was the husband of the deceased. The prosecution sought to rely on three witnesses (PW1, PW2 and PW3)The Court, having perused the case record, noted that the examination-in-chief of PW-1 was recorded by the Presiding judge on May 2, 1989, and he was cross-examined to some extent, however, without completion of his cross-examination, the Judicial Officer concerned had proceeded to record the statement of other witnesses of fact namely PW-2 and PW-3 on the same day.The Court further noted that the cross-examination of PW-3 was concluded on that very day i.e., May 2, 1989, however, the cross-examinations of PW-1 and PW2 were not completed by the Court concerned. Significantly, on May 2, 1989 itself, PW-2 & PW-3 both were declared hostile. The Court also noted in its order that three prosecution witnesses of facts (PW1, PW2, and PW3) were examined on the same day, i.e. on May 2, 1989, but not in the correct order of examination.Importantly, after more than two months, i.e. on July 20, 1989, when the case was taken up for cross-examination of the remaining witnesses, i.e. PW-1 and PW-2, it was transpired that PW-1 Puttu (First informant/husband of the deceased) had died a month before.Court's observationsAt the outset, the Court noted that as per the settled law, the evidence of a hostile witness cannot be discarded as a whole, relevant parts thereof which are admissible in law can be used by the prosecution or the defence.Now, against this backdrop, the Court analyzed the evidence/testimonies of PW-2 & PW-3 (who had turned hostile) and observed that nothing could be elicited in favor of the prosecution case from the statement of PW-3 who had turned hostile and completely retracted from his previous statement and therefore, the court discarded his statement in toto. However, the Court relied on certain parts of the testimony of PW-2, which supported the case of the prosecution. Regarding the examination of the prosecution witnesses, which was not done chronologically, the Court remarked thus:"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...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." Further, the Court read the statement of PW-1 and PW-2 (certain parts of his testimony were found to be reliable) conjointly to come to the conclusion that the case of the prosecution was found proved as to the mode and manner of occurrence and the involvement of accused Ram Chandra. The Court further noted that other supporting evidence from the record, i.e. medical evidence also corroborated the ocular version of PW-1, the injuries caused on the person of the deceased, which were the cause of her death. In light of the above discussion, considering the attending circumstances of the case and the motive with which the accused-appellant committed the murder of the deceased, the Court concluded that there was no infirmity in the decision of the...

Complete Examination Of Private Witnesses, Both Chief & Cross, On Same Day: Allahabad HC Directs Trial Court Judges In UP

Sparsh Upadhyay

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