NIYAZ Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) APPELLANTS Niyaz and Umashanker have been convicted under Sections 452 and 324, IPC and sentenced to rigorous imprisonment for one year on each count and to a fine of Rs. 250/- for the former offence.

(2.) AFTER hearing the learned Counsel for both the sides and on scrutiny of the evidence on record this Court is of the opinion that the conviction of the appellants for the aforesaid offence is not sustainable. Complainant Hasim Ali (P. W. 4), who is said to be the victim of the offence, has himself turned hostile. In examination-in-chief he states that accused Niyaz caused injury to him with a sword but in cross-examination he disowns it and says that he could not identify the person who attacked him. At this stage he was declared hostile and to the Court question he gives the reply: "i had not seen the person who attacked". So far as accused Umashanker is concerned even in the examination-in-chief he does not say that this accused did any overt act or he was armed. In the FIR (Ex. P-3) he had stated that both the accused persons were armed with swords. As the complainant has himself made a volte-face on the crucial point it is difficult to base conviction on his vascillating testimony. He does not stick to his own earlier version during cross-examination. Therefore, his evidence can not be said to be creditworthy and he can not be placed in the position of a fully reliable witness. No doubt he has sustained an incised wound but it is not established beyond reasonable doubt that accused Niyaz is the author of this criminal act as the testimony of the complainant stands discredited by his own statements in cross-examination. There is also no other substantive evidence to establish the charge. The evidence of Mohd. Shareef (P. W. 3) is also of vague and indefinite character. He did not see the incident which took place inside the house of the complainant. His evidence could be of corroborative value of the complainant had stood firm and he would not have changed his version in cross-examination.

(3.) IN Gura Singh v. State of Rajasthan, AIR 2001 SC 330, the Supreme Court has held that it is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence can not, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.