JUDGMENT :

SANJAY KISHAN KAUL, J.

1. The appellant was charged with the murder of Lingappa Poojari (deceased) under Section 302 of the Indian Penal Code. The complainant is Sheshappa Poojari (PW-1) who lived in a house near to the house of the deceased, along with his wife Neelamma (PW-4) and his daughter Sumathi (PW-3). The deceased was the cousin brother of Neelamma (PW-4). The appellant was a native of another village, who was staying near the place of the incident and was engaged in the work of toddy tapping. The allegation against the appellant is that he endeavoured to establish a relationship with Sumathi, who was about nineteen years of age and was engaged in rolling beedi leaves to make beedis. In furtherence of his endeavour, he used to visit the residence of Sumathi, which was objected to both by her father and the deceased. It is alleged that on this very issue an altercation had earlier taken place in which the appellant is alleged to have threatened the deceased.

2. The incident relates to 11.00 p.m. on 25th June, 1999 as once again the appellant is alleged to have come to the house of Sumathi. As per the complaint, verbal arguments got aggravated and when the family members intervened to stop the quarrel, the appellant is alleged to have threatened the deceased that he would kill him to stop the quarrel forever and is alleged to have taken out the Tarkatti strapped to his waist into his hand and stabbed the deceased on his shoulder, chest, back side and ribs, 5-6 times, resulting in his instant collapse and thereafter, death. The complainant claims to have witnessed this incident at 11.15 p.m. on the same day and the appellant is alleged to have fled away from the spot, holding the Tarkatti in his hand. On being taken to the government hospital, the deceased was declared dead.

3. The appellant in his Section 313 Cr.P.C. statement denied all imputations and again stated that he was sleeping in the night and heard the shouting. When he got up, he found the deceased had suffered injuries and was thereafter taken to the hospital. The police is alleged to have taken him to the police station later on, the next morning, and have lodged a false case against him.

4. We now turn to the evidence of the prosecution and note the important aspects of PW-1/complainant having turned hostile in his cross-examination. While the earlier part of the story relayed by him, of the interaction among the parties, was supported by him in his cross-examination, but insofar as the incident in question is concerned, a different narrative took place. He has stated that on the fateful day, there was a small function at Babu Poojari's house which his wife had gone to attend, where dinner was being hosted for the villagers. She returned at about 11.00 p.m., after which they went to sleep, when he heard a roaring voice. He woke up his wife and daughter and found the roaring voice coming from near the jackfruit tree, where the body of the deceased was lying. The deceased was stated to be lying with no clothes on his body, but only wearing his underwear. PW-1 called out to his neighbour Gangadhar. He further stated on oath that the police had told him to depose as per the record, as otherwise he would be jailed. In the cross-examination, he also stated that the appellant had developed friendship with his daughter, but not with any bad intention. He also deposed to pressure being put on him by the brothers of PW-2, wife of the deceased, and thus he had deposed falsely due to the fear of the police, as well as the younger brother of PW-2.

5. The surprising part is that the prosecution did not declare him hostile, nor further cross-examined him. This remained a major infirmity in the prosecution story. It has been held that when a witness is not declared hostile by the public prosecutor and Section 154 of the Evidence Act is not resorted to, subsequent testimony of such witness remains uncontroverted. K. Anbazghan vs. Supdt. of Police, (2004) 3 SCC 767.

6.