Point of Law: Section 33 is an exception to general rule which mandates adequate facility for cross examining a witness.

JUDGMENT :

1. List has been revised.

2. Supplementary affidavit filed today is taken on record.

3. Heard Sri Sunil Kumar Singh, learned counsel for applicant and Sri Vibhav Anand Singh, learned A.G.A. for the State.

4. The present bail application has been filed by the applicant in Case Crime No.101 of 2022, under Section 302 IPC, Police Station Dubhar, District Ballia with the prayer to enlarge him on bail.

PROSECUTION STORY:

5. As per prosecution story, the applicant, who happens to be the nephew of the deceased person, is stated to have assaulted his uncle by a knife thereby causing his death at the spot on 03.07.2022 at about 4:00 PM over a family dispute.

RIVAL CONTENTIONS:

6. Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case. Learned counsel has further stated that all the witnesses of fact have been examined and they have not supported the prosecution story. There is no likelihood of conviction of the applicant in the present case. The other witnesses are simply formal witnesses only. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 04.07.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.

7. Per contra, learned A.G.A. has vehemently opposed the bail application on the ground that the examination-in-chief of the informant, as PW-1, was taken up on 14.11.2021 and he has categorically deposed against the applicant and nominated him to be the assailant of having caused the death of his brother and some cross-examination was even taken up the same day. Subsequent to it, further cross-examination of PW-1 was taken up on 14.12.2021 i.e. about a month after the said examination-in-chief and the first informant has resiled from his earlier statement and has been declared hostile by the public prosecutor.

CONCLUSION:-

8. The evidence of a hostile witness cannot be discarded in toto, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. The Apex Court in Rajesh Yadav and another Etc. v. State of U. P., 2022 Cri.L.J. 2986 (SC) has dealt with the evidentiary value of the Hostile witnesses. The relevant paragraphs are being reproduced as follows:

22. On the law laid down in dealing with the testimony of a witness over an issue, we would like to place reliance on the decision of this Court in C. Muniappan v. State of T.N., (2010) 9 SCC 567: (AIR 2010 SC 3718):

"81. It is settled legal proposition that:

"6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."(Vide Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389 : (AIR 1976 SC 202), Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233 : (AIR 1977 SC 170), Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 : (AIR 1979 SC 1848) and Khujji v. State of M.P., (1991) 3 SCC 627 : (AIR 1991 SC 1853 ), SCC p. 635, para 6.)

82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360 : (AIR 1996 SC 2766): 1996 SCC (Cri) 1278] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharas