The probative value of the testimony of a hostile witness depends on its quality and the confidence it generates in the mind of the court after being subjected to close scrutiny. The court should consider the witness's credibility in light of other evidence on record and should not mechanically rely on hostile witness testimony without considering the factual matrix and the accused's right to fair trial.

JUDGMENT :

Pradeep Kumar Srivastava, J.

Heard Shri Chandra Kumar Rai, learned counsel for the appellant, Shri Manoj Kumar Singh, learned AGA for the State and perused the record.

2. At the very outset, learned counsel for the accused appellant has submitted that instead of arguing on bail application, he will argue the appeal on merits to which the learned AGA has agreed.

3. This Criminal Appeal has been preferred against the Judgment dated 14.09.2018 passed by learned District & Sessions Judge, Azamgarh in ST No. 448 of 2014 (State Vs. Mahtab Alam @ Safullah), arising out of Case Crime No.120 of 2010, under Sections 308, 504 IPC, Police Station : Jiyanpur, District Azamgarh by which learned Court below has convicted and sentenced the appellant for the offence under Sections 308 IPC for seven years rigorous imprisonment and Rs.10,000/- fine and under Section 504 IPC for one year rigorous imprisonment and in case of default in payment of fine two months additional imprisonment. Both the sentences have been directed to run concurrently.

4. Perusal of record shows that FIR was lodged by the informant Subash Gupta stating that on 25.2.2010, his brother Om Prakash, who used to sell peanuts, when he was coming back at 9.15 p.m. with his 'Thela' on the way the accused Mehtab Alam @ Safullah forcibly obstructed the 'Thela' and started abusing and when Om Prakash prevented him. He hit on his head by the electric rod. He sustained injuries and fell on the ground and became unconscious. Witnesses & informant came there, whereupon the accused ran away from there. The injured was taken to the police station and the informant gave a report, on the basis of which, the F.I.R. was registered under Sections 308 and 504 IPC. The injury of the injured was examined in the District Hospital, Azamgarh. The case was investigated and charge-sheet was submitted under the aforesaid sections and charges were framed in the offence under Section 308 and 504 IPC and the accused was tried.

5. To prove the case, the prosecution has examined as many as four witnesses namely- PW-1 Om Prakash (injured), PW-2 Subhash (informant) who proved his written report as Ext. Ka-1, PW-3 Jaihind and PW-4 Lochan. The accused admitted the genuineness of the papers such as Chik FIR Ext. Ka-2, GD Ext. Ka-3, Medical Report Ext Ka-4, Site Plan Ext. Ka-5 and charge-sheet Ext. Ka-6.

6. The statement of the accused was recorded under Section 313 Criminal Procedure Code who stated that the incident is false and the report was falsely lodged and has further stated that the whole case was framed because of enmity. No evidence in defence has been given by the accused.

7. After hearing the prosecution and defence and perusing the evidence on record, the learned Trial Court passed the impugned judgement convicting and sentencing the accused appellant.

8. Aggrieved by the said judgement, this Appeal has been filed and the impugned judgement has been challenged on the basis that it is not based on the evidence on record and the same is contrary to law. The sentence imposed has been based on wrong appreciation of evidence. The learned Trial Court did not consider the fact of presumption of innocence in favour of the accused and on hypothetical basis, the impugned judgment was passed, therefore, the same is liable to be set aside and the appellant is entitled for acquittal.

9. It is clear from the reading of the evidence that out of four witnesses examined by the prosecution, P.W.2 Subhash, P.W.3 Jaihind and P.W.4 Lochan were declared hostile at the very initial stage and in their testimony, they did not support the prosecution version. The injured Om Prakash was also examined and in examination-in-chief, he supported the prosecution version. In the very beginning of the cross examination, he was also declared hostile and he was cross examined by the learned prosecutor but nothing has come in the cross examination, by which the prosecution story may be supported.

10. The learned trial court has discusse