STATE OF GUJARAT Vs. NIMBAJI RAMCHANDRA

JUDGEMENT

(1.) . Before we part with this case we must necessarily observe that in a large number of corruption cases Panchas turn hostile and ultimately because of that the cause of justice suffers. It is regrettable that Public Prosecutors do not declare a particular Panch or a witness hostile to the prosecution at the proper stage in course of the trial before the learned Special Judge. In the instant case though Panch No. 1 made a revolutionary departure in his cross-examination in regard to the demand of the bribe and the acceptance thereof it is regrettable that the Public Prosecutor did not declare Panch Mohanbhai-P.W. 2 as a witness hostile to the prosecution. Had Panch No. 1 Mohanbhai-P. W. 2 had had declared a witness hostile to the prosecution there would have been only one set of prosecution evidence against the accused; and possibly that might have affected the result of the whole case. Eradication of corruption is a must and if that obJect is to be achieved it is high time that not only the Panchas who are selected should be respectable Panchas but if Panchas deliberately turn hostile to the prosecution the Public Prosecutors in the State must be on special caution to sec that at the relevant time and at the proper stage the Panchas are declared hostile to the prosecution. In a situation where the Panchas turn hostile to the prosecution it is equally the sacred duty of the Public Prosecutors to move the Court for necessary action against the Panch who has been declared hostile to the prosecution.

(2.) . In the instant case we are convinced that panch No. 1 Mohanlal P W. 2 was specifically instructed to hear and see what would transpire between the complainant on one side and the accused on the other. Panch Mohanbhai-P.W. 2 was sitting in between the complainant and the accused at the relevant time. Panch Mohanbhai P.W. 2 deposed in examinationin-chief that the accused demanded the bribe money and in pursuance to the said demand the complainant paid the bribe money to the accused and the accused accepted the same. In spite of this clear and categorical evidence given by Panch Mohanbhai-P. W. 2 before the learned Special Judge in his examination-in-chief Panch Mohanbhai-P. W. 2 in his cross-examination state that the accused did not demand money from the complainant. He also states that it was not true that the complainant planted or put the notes in the pocket of the accused. He stales That he was not knowing as to how the money travelled in the pocket of the accused. He also states that he did not see and that it was out of his mind as to how the money travelled in the pocket of the accused. In view of the aforesaid evidence which panch. Mohanbhai-P.W. 2 stated in the cross-examination it was at that stage that the Public Prosecutor should have declared this witness as a witness hostile to the prosecution. At this stage we may emphasise that There can be no doubt that each accused is entitled to test the witness examined by the prosecution by cross-examination and that such Cross-examination need not be limited only to what has been stated by the prosecution witness in examination-in-chief; but if it is apparent from the answers given in cross-examination that a prosecution witness makes a radical and revolutionary departure from what he deposed in examination-in-chief on the core of the prosecution case it is the duty of the Public Prosecutor to declare such a witness as a hostile witness so that there cannot be two sets of evidence from prosecution witnesses in regard to the alleged crime. We are very much conscious of the fact that it is the absolute discretion of a Public Prosecutor to drop a witness from examining him either on the ground of the witness being hostile to the prosecution or on the ground that if examined he would duplicate and burden the record but if the prosecution witness having entered the box tries to trifle With the prosecution case by deliberately adoption the attitude in cross-examination which would destroy the very core of the prosecution base it is the duty of the Public Prosecutor to declare such a witness as a witness hostile to the prosecution. We are sure that if such a course is adopted by the Public Prosecutors the evil of corruption and bribery can be eradicated successfully to a considerable extent.

(3.) . In view of the aforesaid evidence of Panch Mohanlal Chimanbhai P.W. 2 Ex. 11 who has been examined as a prosecution witness we direct to issue a notice on Mohanbhai Chimanbhai-P.W. 2-Ex. II to show cause as to why he should not be prosecuted for the offence of giving false evidence on oath before the learned special Judge. Notice to be made returnable on 1st May 1979. Appeal dismissed.