Sustainability of conviction based on the testimony of hostile witness.

FATHIMA BEEVI, J.:

1. The appellant Kunhappan was convicted by the Sessions Court, Kozhikode, in S.C.No.3/1982 for the offence punishable under Section 302, Indian Penal Code, and sentenced to undergo imprisonment for life. He was tried on the charge that on July, 31 1980 at about 3.00 p.m. he committed murder by causing the death of one Gopalan by stabbing him with M.O.3 dagger. The occurrence is stated to have happened in the veranda of the Shop of P.W.2.

2. The prosecution case briefly stated is: The appellant had ill-feeling towards the deceased Gopalan after the elopement of his daughter with a christian youth. On the date of the occurrence, the deceased Gopalan was sitting in the Shop of P.W.2 where P.Ws.3 and 4 were also present. P.W.5 was seated in the veranda of the adjacent room. The appellant entered the shop, purchased cigarettes, then moved towards Gopalan and attacked him with the dagger. With an out cry Gopalan ran out of the shop towards the south covering his chest with his hands, fell down on the road. The appellant also followed him for a short distance and he ran towards the south. While Gopalan collapsed on the road, the appellant was pelted with stones and disarmed by P.Ws.1 and 9 the sons of the deceased who reached the place by that time. The injured Gopalan was rushed to the Medical College Hospital, Calicut, where he was pronounced by the doctor as dead. The occurrence was witnessed by P.Ws.2, 3, 4 and 5. The crime was registered against the appellant on recording Ex.P-1 statement of P.W.1 at the Medical College Police Station the next day at 11.15 a.m. The case was investigated by P.W.1 9 and finally charge-sheeted. The appellant who sustained certain injuries was examined by P.W.21 at 5 p.m. on 31.7.1980 and a case was also registered on the basis of his complaint.

3. At the trial, the appellant set up the plea of self-defence in that, there was an encounter between him and the deceased Gopalan at the shop and that he was in fear of danger. The prosecution has examined P.Ws.2, 3, 4 and 5 as eye witnesses to the occurrence. They were however treated hostile and cross-examined as they resiled from the statements to the Investigating Officer that they have seen the appellant stabbing the deceased Gopalan. The trial Court accepted the testimony of these hostile witnesses, when they said they had seen the appellant with a dagger in the shop and had also seen the deceased Gopalan running out of the shop covering his chest and short-while thereafter saw Gopalan being removed to the hospital, and found the appellant guilty and convicted and sentenced him as aforesaid.

4. In challenging the conviction, the main contention advanced by the learned Counsel for the appellant is that there is no credible evidence to sustain the conviction.

5. The question that falls for consideration is whether the conviction solely based on the testimony of the hostile witnesses is warranted. As a legal proposition it is now settled by the decisions of the Supreme Court, that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution had dubbed him ‘hostile’ and had cross-examined him. (See- Syad Akbar v. State of Karnataka Syad Akbar v. State of Karnataka (1979) Crl. L.J. 1374: (1980) 1 S.C.C. 30: (1980) S.C.C. (Crl.) 59: A.I.R. 1979 S.C. 1848).

6. The Supreme Court has stated in Sat Paul v. Delhi Administration Sat Paul v. Delhi Administration (1976) Crl.L.J. 295: (1976) 1 S.C.C. 727: (1976) S.C.C. (Crl.) 160: (1976) 2 S.C.R. 11: A.I.R. 1976 S.C. 294 that:

“Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a