The admissibility of a hostile witness's testimony and the application of Exception 4 to Section 300 of the Indian Penal Code were central legal points established in the judgment.

ORDER :

1. Four persons, namely, Sidiu Kunkul, Ravi Gope, Sikandar Sirka and Bosen Kunkal have been named by the informant as the assailants of her husband, namely, Dee Singh Kunkal. On the basis of her fardbeyan which was recorded in the midnight, at about 00:30 hrs. on 12.1.2010, Manjhari (Tantnagar) P.S. Case No. 02 of 2010 has been lodged against them under sections 341, 342 and 302 r/w section 34 of the Indian Penal Code.

2. In S.T. Case No. 104 of 2010, the appellants have faced the trial on the charge under section 302/34 of the Indian Penal Code for committing murder of Dee Singh Kunkal. They have been convicted and sentenced to R.I. for life and fine of Rs. 10,000/- each for the said offence.

3. The prosecution has projected PW-2 who is wife of Dee Singh Kunkal and PW-3 who is his elder brother as eye witnesses. PW-1, PW-4 and PW-6 who are the co-villagers have been declared hostile at the instance of the prosecution.

4. In her fardbeyan, the informant has stated that it was Barobonji festival on 11.1.2010. Barobonji puja is celebrated by the villagers together and on 11.1.2010 it was performed at Moribasa. On that day Sidiu Konkal had invited her husband for food. Her husband had joined him over food and at about 6:00 p.m. in the evening he was returning home and when he reached near the house of Chaman Suren, the accused persons, namely, Sidiu Kunkal, Ravi Gope, Sikandar Sirka and Bosen Kunkal started a quarrel with her husband. The accused persons encircled him and started assaulting him and when she tried to intervene they threatened her. On receiving injuries, her husband fell on the ground and died on the spot. Thereafter the accused persons fled away towards northern side of the village. She has claimed that the incident has been seen by Sumitra Soren and Sunita Kunkal, her co-villagers and when they intervened they were also threatened by the accused persons. In the court also she has deposed about Sidiu Konkal inviting her husband on Barobonji puja, return of her husband after the puja and the accused persons assaulting him. PW-3 who is the elder brother of the deceased has also deposed that the accused persons have assaulted his brother near the house of Chaman Suren.

5. PW-1 and PW-4 have been declared hostile. From their evidence it would appear that they have stated about a quarrel between Dee Singh Kunkal and Ravi Gope but they have not named other accused persons and that was the reason they have been declared hostile by the prosecution. PW-6 has stated that when he came back home on 11.1.2010 his wife has informed him about the occurrence. The expression hostile witness is not defined in the Code of Criminal Procedure but in the legal parlance a witness who does not support the prosecution is called a hostile witness. The law on hostile witness is by now well settled. On account of fear, forgetfulness, lapse of time etc. a witness may not state everything what has been stated by him before the police and therefore an opportunity is given to the prosecution to cross-examine a witness who has not supported the prosecution. Under section 154 of the Indian Evidence Act, the court may in its discretion permit the person who calls a witness to put any question to him which might be put in the cross-examination by the adverse party and sub-Section 2 to Section 154 provides that any part of the evidence of such witness can be relied by the person who has cross-examined his witness. That is the reason testimony of a hostile witness is not rejected altogether and that part of his testimony which supports the prosecution’s case can be relied upon by the prosecution to corroborate other evidences.

6. In Lahu Kamlakar Patil vs. State of Maharashtra, (2013) 6 SCC 417, Hon’ble Supreme Court has observed thus:

“15. It is settled in law that the evidence of a hostile witness is not to be rejected in toto. In Rameshbhai Mohanbhai Koli vs. State of Gujarat, reiterating the principle, this Court has stated thus: (SCC p. 117, Par