Testimony Of Hostile Witness Can Be Considered To Convict Accused, If Corroborated By Other Evidence : Supreme Court Constitution Bench

The Supreme Court observed that there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence.

The fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence, the Constitution Bench observed.

The bench of Justices  Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian and B. V. Nagarathna observed thus while answering the reference 'whether in the absence of direct evidence regarding demand or giving of bribe, there can be conviction under the Prevention of Corruption Act based on circumstantial inferences' in the affirmative.

In this regard, the Court noted the submissions made by Senior Advocate S.Nagamuthu that (1) expression "hostile witness" must be read in the context of Section 154 of the Evidence Act and (2) when the prosecution examines a witness who does not support the case of the prosecution he cannot be "declared" to be a "hostile witness" and his evidence cannot be discarded as a whole.

Referring to the judgment in Sat Paul vs. Delhi Administration (1976) 1 SCC 727, the bench said:

"This Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."

Case details

Neeraj Dutta v. State (GNCTD) | 2022 LiveLaw (SC) 1029 | Cr A 1669 of 2009 | 15 December 2022 | Justices Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian and B. V. Nagarathna

Headnotes

Prevention of Corruption Act, 1988 ; Sections 7, 13(1)(d), 13(2) - In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution - In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (Para 70, 68)

Indian Evidence Act, 1872 ; Section 154 - The fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused - There is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence. (Para 67)

Prevention of Corruption Act, 1988 ; Section 20 , 13(1)(d) - Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act - This Presumption in law under Section 20 is a mandatory presumption. (Para 68)

Prevention of Corruption Act, 1988 ; Sections 7, 13(1)(d), 13(2) - (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and (ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence- Under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act. (Para 68)

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