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Corroborated material particulars of hostile witness acceptable

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Appellate Division :
(Criminal)
Surendra Kumar Sinha CJ
Syed Mahmud Hossain J
Hassan Foez Siddique J
Judgment
November 4th, 2015
Aminul Islam Bulbul ……….Appellants vs
State …………Respondent
Evidence Act (I of 1872)
Section 154
If a witness is declared hostile his evidence may not be rejected as a whole but his statement which has not been discredited may be accepted if he is corroborated by other witnesses in material particulars. When the court permits a party to cross-examine a witness of his own, the grant of the permission does not amount to an adjudication that the witness is unworthy of credit, it merely provides the party with a means to test the veracity of the witness, and the value the witness's testimony will be judged by what it discloses in such cross-examination. The evidence of much wellness shall be received with caution. There must be corroboration by other witnesses in material particulars otherwise the evidence may not be accepted.
Since the word hostile does not find place in the Evidence Act, the question as to when may a party be allowed to put question in the nature of cross-examination to his own witness has to be determined in each case in the light of its particular circumstances. In every case the main question before a court of law is to discover the truth from the conflicting pleas of the parties before it. The requirement is not that the witness must be suppressing truth or not desirous of telling the truth to the court. A part of the deposition of the witness cited by a particular party goes against that party is not sufficient reason for declaring such a witness hostile and for giving the party calling him a further opportunity for purpose of cross examining him. . ..... (17 & 14)
Object of cross-examination
When a witness is cross-examined by the party calling him on the ground that his evidence cannot be believed in part and disbelieved in others part. It is because the object of cross-examination by a party of a witness was to discredit the witness and amount to an admission that he was not a witness of trustworthy. It is not the only object of cross-examination to discredit him, but also to compel him to make admissions favorable to the cross-examiner and to find out the truth. It is true that mere fact that a particular witness has not chosen to support the party who brings him to examine by itself is not a reason to discard the testimony of such witness in to if the court finds something else.  ..... (13)
Evidence Act (1 of 1872) Section 154
Section 154 of the Act does not say anything to declare a witness hostile but it is a practice being followed by this subcontinent that in case of a witness who turned hostile or unwilling to support his previous statement or makes adverse statement, the court may in its discretion allow the person who calls him as witness to put any question to him which might be put in cross-examination. The discretion is unqualified and untrammeled and is quite apart from any question of the hostility. The court should not act on the request of the public prosecutor to permit for cross-examination. Unless and until the court satisfied from the statements of the witness that the witness turned hostile by stating something which is destructive to the prosecution case. The court normally allows the witness to be treated hostile. . ..... (12)
Evidence Act (1 of 1872) Section 80
A deposition cannot be considered to have been duly taken if it does not contain what the witness actually stated. Secondly, this statement has not been recorded in presence of the accused and therefore, the court cannot act upon such statement unless it is corroborated in material particulars by other evidence in view of section 114 of the evidence Act but in case of a confession it can be used against the maker if the same is recorded in accordance with law. …..(11)
Code of Criminal Procedure (V of 1898) Section 164
Evidence Act (1 of 1872)
Section 80
The court should not draw adverse inference against the defence treating a statement of a witness made under section 164 of the Code as substantive evidence. Though there is presumption under Section 80 of the Act of genuineness of a statement recorded under Section 164 of the Code, Section 80 of the Act merely gives the sanction to the maxim ominia praesumuntur rite et solemniter esse act i.e. all acts are presumed to have been done rightly and regularly with regard to documents taken in the course of a judicial proceeding. It does not render admissible any kind of particular evidence, but dispenses with the necessity of formal proof in the case of certain documents taken in accordance with law. It should not equate between 'statement' and a 'confession' while drawing inference of presumption. . ..... (10)
Circumstantial evidence
If any of the circumstances makes it probable that somebody else might have committed the crime there will be element of doubt and the benefit of which must go in favour of the accused. This is to be meticulously looked into and applied in respect of an offence of charge of murder because of the fact that in respect of such charge the ultimate penalty is a cessation of life of person. So, the court must be strict in the adherence of the circumstantial evidence.
Haranund vs Ram Gopal Chatlangia, 27 IA1 (PC); Abed Ali vs Ismail Miah, PLD 1961 Dacca 85 = 12 DLR 578; Profulla Kumar Sarkar vs Emperor, AIR 1931 Cal 401; See Ammathaya Rammal vs Official Assignee, AIR 1933 Mad 137; Shyam Kumar Singh vs Emperor, AIR, 1941 Oudh 130; Islam vs State, PLD 1962 Lah 1053 and Abdul Awal vs State, PLD 1962 Dac 623 = 13 DLR 846 ref.
Khondaker Mahbub Hossain, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on Record-For Appellant.
Ekramul Haque, Deputy Attorney-General, instructed by Mahmuda Begum, Advocate-on-Record-For Respondent.
Judgment
Surendra Kumar Sinha CJ : In this appeal the convict Aminul Islam Bulbul seeks leave from a judgment of the High Court Division by which it has maintained his sentence by altering the conviction to one under section 302 of the Penal Code.
2. Short facts are that the appellant along with co-accused Kazi Bashirul Huq and Kazi Zahirul Huq was put on trial to face charge under Sections 302/34 of the Penal Code for the murder of Shafiqul Islam, a pre-cadet student, son of the informant Md Hossain Ali Mridha (PW 1) on 16th March, 2002. Victim's friend Tonmmoy was beaten up by Bulbul, Sumon and some other persons on the night of 19th March 2002 for love affairs and Tonmmoy was admitted to Narail Hospital for treatment. Deceased Shafiqul Islam went to see Tonmmoy at the hospital and on his way Bulbul and Sumon threatened him. In the evening of 25th March, 2002, the informant heard that Bulbul and Sumon with the help of 3/4 unknown persons took away Shafiqul Islam to the field of Moheshkhola. In the same evening at 10-00 pm the informant heard that a slaughtered dead body of a boy was lying in Moheshkhola field and on getting such information he along with his son Mohsin, brother-in-law Sultan Mahmud and others went to the place of occurrence and found the dead body of Shafiqul Islam. Thereupon the informant lodged an FIR with the Narail Police Station on the same night at about 11-30 PM implicating the appellant and another. The police eventually submitted a charge sheet against the appellant and 2 others under Sections 302/34/109 of the Penal Code.
3. The trial court relied upon the evidence of Mojubur Rahman (PW 4), Md Jahangir Howlader (PW 5), Md Ayub Mollah (PW 6) and Toufiqul Islam (PW 7) who according to it corroborated each other, and their evidence have also been corroborated by the circumstantial evidence led by Hossain Ali Mridha (PW 1). The High Court Division, however, relied upon the PWs 5 and 6 and the statements recorded under Section 164 of the Code of Criminal Procedure exhibits 6 and 7, treating them as substantive, evidence.
4. Mr Khondaker Mahbub Hossain, learned Counsel appearing for the appellant submits that the High Court Division erred in law in relying upon exts 6 and 7, the statements of PWs 5 and 6 as substantive evidence, who did not support their previous statements in court. According to the learned Counsel, there is practically no legal evidence in support of the charge of murder and the High Court Division has totally overlooked this aspect of the matter while maintaining the conviction.
5. There is no dispute that Shafiqul Islam was done to death on the evening of 25th March, 2002. We are shocked to note that the High Court Division has taken into consideration the allegations made in the FIR in which accused Suman and Bulbul were shown as the assailants. An FIR is the earliest information made to the police over the incident suspecting some accused persons as assailants and sometimes the name of the accused persons are not mentioned. This FIR is not evidence at all. It furnishes a clue to the investigating agency to find out the accused persons against whom it found prima facie evidence to connect them with the offence. It can be used for the purpose of corroboration or contradiction of the maker only. It has no evidentiary value at all except that the accused persons have been suspected as assailants.
6. The High Court Division noticed that the informant (PW 1) denies that PWs 2 and 3 are seizure list witnesses. It also noticed that PW 4 did not state to the investigation officer that Bulbul and Shafiqul were seen while they were moving by the side of Mosque on the faithful day with a rickshaw and that these witnesses were examined 10/12 days after the occurrence. According to PW 1 his son told him at night regarding the incident of beating of Tonmoy. He claimed that Mohi Jamader and Zakaria (PW 10) intimated him about the incident. Mohi Jamader has not been examined and the other has not corroborated him. So, practically, this witness though implicated the appellant but he is not an eye witness and he has not been corroborated by other witnesses.
7. PW 5 stated that he was irrigating water to his land at about 8-00 pm of 26 March, and at that time Ayub was with him. He heard screaming and he along with Ayub approached towards the shop in front of Jail and on reaching there, he told the machine owner that a dead body was lying with cutting throat injury. He could not identify the dead body. In course of cross-examination by the prosecution, he stated that he told to the Magistrate that on hearing hue and cry he reached at the place where victim was requesting Sumon and Bulbul to release him. He then said, he made the statement out of fear, inasmuch as, previously he was detained at the police station and that he was threatened to make statement if he wanted not to become accused. PW6 made a different statement denying the suggestion given to him that he heard the uttering of the victim naming the appellant.
8. PW 5 was declared hostile. In course of cross-examination by the prosecution he stated that on hearing screaming he along with Ayub went to the place of occurrence when they heard the entreaties of the victim requesting Sumon and Bulbul to release him. Then he said, he made the above statement to the Magistrate out of fear because previously he was detained in the police station and that he was threatened to make an accused in case he did not make such statement. The High Court Division also considered the evidence of PW 6, who was also declared hostile by the prosecution but it misread his statement. It also found that PWs 7, 8, 9, 10 and 11 did not say anything implicating the appellant. It, however, took into consideration the statements of Jahangir Howalder and Ayub Mollah made before the Magistrate as substantive evidence by reproducing their statements in full.
9. The High Court Division after discussing the evidence has arrived at the conclusion that there is no eye witness of the murder except the 164 statements made by PW 5 Jahangir Howlader and PW 6 Md Ayub Mollah. It has been observed that PW 5 Jahangir Howlader and PW 6 Ayub Mollah clearly admitted that on the night of occurrence they were irrigating water to their paddy field adjacent to the place of occurrence when they heard the piteous entreaty of the victim to Sumon and Bulbul to release him and that there is "full corroboration of their statements with that of their 164 statements before the Magistrate." The High Court Division not only misread the evidence of these witnesses but also illegally took their statements recorded under Section 164 of the Code of Criminal Procedure as evidence against the appellant.
10. Though PW 5 admitted in cross-examination that he made such statement to the Magistrate, he clarified later on that it was out of fear as he was detained by the police preceding night to the making of the statement otherwise he was threatened to make an accused in the case. PW 6 did not admit in course of cross- examination by the prosecution that he made such statement to the Magistrate. His reply was তার কাছে একথা বলিনি যে, ঘটনাস্থলে গিয়ে শুনি যে, ভিকটিম বলেছে সুমন ও বুলবুল তোরা আমাকে ছেড়ে দে, তোরা আমার ধর্মের ভাই. It is expected that High Court Division would be more cautious and meticulous in assessing the evidence. More so, the court should not draw adverse inference against the defence treating a statement of a witness made under Section 164 of the Code of Criminal Procedure as substantive evidence. Though there is presumption under Section 80 of the Evidence Act of genuineness of a statement recorded under Section 164 of the Code of Criminal Procedure, Section 80 of the Evidence Act merely gives the sanction to the maxim ominia praesumuntur rite et solemniter esse act i.e. all acts are presumed to have been done rightly and regularly with regard to documents taken in the course of a judicial proceeding. It does not render admissible any kind of particular evidence, but dispenses with the necessity of formal proof in the case of certain documents taken in accordance with law. It should not equate between 'statement' and a 'confession' while drawing inference of presumption.
11. The presumption mentioned in Section 80 of the Evidence Act will arise only if the deposition has been recorded in accordance with law. Where a deposition has not been read over to the deponent or having been given in a language different from the one in which it is recorded, has not been interpreted to him or so, there will be no presumption of genuineness. It has been held by the Judicial Committee of the Privy Council in Haranund vs Ram Gopal Chatlangia, 27 IAl (PC), that a person having given evidence is a fact which may be proved by the evidence of a person in whose presence the evidence was given. A deposition cannot be considered to have been duly taken if it does not contain what the witness actually stated. Secondly, this statement has not been recorded in presence of the accused and therefore, the court cannot act upon such statement unless it is corroborated in material particulars by other evidence in view of Section 114 of the evidence Act but in case of a confession it can be used against the maker if the same is recorded in accordance with law.
12. Section 154 of the Evidence Act does not say anything to declare a witness hostile but it is a practice being followed by this subcontinent that in case of a witness who turned hostile or unwilling to support his previous statement or makes adverse statement, the court may in its discretion allow the person who calls him as witness to put any question to him which might be put in cross-examination. The discretion is unqualified and untrammeled and  is quite apart from any question of the hostility.
The court should not act on the request of the public prosecutor to permit for cross-examination. Unless and until the court satisfied from the statements of the witness that the witness turned hostile by stating something which is destructive to the prosecution case. The court normally allows the witness to be treated hostile.     .
13. When a witness is cross-examined by the party calling him on the ground that his evidence cannot be believed in part and disbelieved in others part. It is because the object of cross-examination by a party of a witness was to discredit the witness and amount to an admission that he was not a witness of trustworthy. It is not the only object of cross-examination to discredit him, but also to compel him to make admissions favourable to the cross-examiner and to find out the truth. It is true that mere fact that a particular witness has not chosen to support the party who brings him to examine by itself is not a reason to discard the testimony of such witness in to  if the court finds something else.
14. Since the word hostile does not find place in the Evidence Act, the question as to when may a party be allowed to put question in the nature of cross-examination to his own witness has to be determined in each case in the light of its particular circumstances. In every case the main question before a court of law is to discover the truth from the conflicting pleas of the parties before it. The requirement is not that the witness must be suppressing truth or not desirous of telling the truth to the court. A part of the deposition of the witness cited by a particular party goes against that party is not sufficient reason for declaring such a witness hostile and for giving the party calling him a further opportunity for purpose of cross examining him. In Abed Ali vs Ismail Miah, PLD 1961 Dacca 85 = 12 DLR 578, it has been held that two conditions namely; a hostile animus and the witness being not desirous of telling the truth should weigh in the matter of allowing the prayer for cross-examining a witness cited by a particular party.
15. It is now established that the mere fact that a witness has gone back upon his previous statement and given in court evidence which is inconsistent with that statement does not make the witness hostile. The value of the evidence of a witness cross-examined by the party calling him is that the evidence of the witness thus discredited could not be used for or against either party. The witness loses all evidentiary value and can neither be used in favour nor against the prosecution. This view has not been accepted by a full court of the Calcutta High Court in Profulla Kumar Sarkar vs Emperor, AIR 1931 Cal 401 (FE). Rankin CJ speaking for the court was of the view that a witness is dealt with under Section 154 of the Evidence Act even when under that section he is cross-examined to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance in his evidence, or that party who called and cross-examined him can take an advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. He concluded his argument as under:
"But, in other cases, the jury cannot be so directed because prima facie the previous statement of the witness is not evidence at all against the accused of the truth of the facts stated therein. The proper direction to the jury is that, before relying on the evidence given by the witness at the trial the jury should take into consideration the fact that he made the previous statement, but that they must not treat the previous statement as being any evidence at all against the prisoner of the facts therein stated ......... In a criminal case, however, the previous unsworn statement of a witness for the prosecution is not evidence against the accused of the truth of the facts stated therein save in very special circumstances."
16. The Madras, Oudh, Lahore and Dacca Courts have taken the similar views in this regard. See Ammathaya Rammal vs Official Assignee, AIR 1933 Mad 137; Shyam Kumar Singh vs Emperor, AIR, 1941 Oudh 130; Islam vs State, PLD 1962 Lah 1053 and Abdul Awal vs State, PLD 1962 Dac 623 = 13 DLR 846.
17. I find no reason to depart from the above views. So, my conclusion is that if a witness is declared hostile his evidence may not be rejected as a whole but his statement which has not been discredited may be accepted if he is corroborated by other witnesses in material particulars. When the court permits a party to cross-examine a witness of his own, the grant of the permission does not amount to an adjudication that the witness is unworthy of credit, it merely provides the party with a means to test the veracity of the witness, and the value the witness's testimony will be judged by what it discloses in such cross-examination. The evidence of such witness shall be received with caution. There must be corroboration by other witnesses in material particulars otherwise the evidence may not be accepted. Since there is no other iota of evidence to the evidence to corroborate the evidence of PW 5 to connect the appellant in the murder of Shafiqul Huq other than his statement made under Section 164 of the Code of Criminal Procedure, the High Court Division fell in an error in maintaining the conviction of the appellant.
18. Admittedly there is no eye witness of the occurrence and the case entirely rests upon the circumstantial evidence. The principle of law on the question of dealing with circumstantial evidence has been settled by catena of decisions. It is that every relevant fact has to be considered in juxta position and see that those circumstances are cogent and established. These circumstances must be of a definite tendency pointing fingers towards the guilt of the accused in their totality and must unerringly leave to the conclusion that within all human probability the offence was committed by the accused and accused alone and none else. If the circumstances are not incompatible with the innocence of the accused, it should not be acted upon and the accused will get the benefit of doubt. To say otherwise, if any of the circumstances makes it probable that somebody else might have committed the crime there will be element of doubt and the benefit of which must go in favour of the accused. This is to be meticulously looked into and applied in respect of an offence of charge of murder because of the fact that in respect of such charge the ultimate penalty is a cessation of life of person. So, the court must be strict in the adherence of the circumstantial evidence.
Thus, we find that there is no reliable evidence in support of the charge against the appellant. The High Court Division erred, therefore, in maintaining the conviction. We find merit in this appeal. The judgment and order of convictions set aside. The appellant is found not guilty of the charge and he can be acquitted at once if not wanted in connection with any other case.

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