“It is settled legal proposition that
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 that their version is found to be dependable on a
careful scrutiny thereof."
Showing posts with label prosecution. Show all posts
Showing posts with label prosecution. Show all posts
Jan 27, 2013
Mar 15, 2012
State of UP Vs Anil singh AIR 1988 SC 1998
Hon'ble Supreme Court of India observed as
"In the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifferent attitude of the public in the investigation of crimes could also be pointed. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform"
"In the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifferent attitude of the public in the investigation of crimes could also be pointed. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform"
Feb 26, 2012
Hardev Singh Dhillon Vs Department of Revenue Intelligence, 2010 (251) ELT 359 (Del)
Hon'ble High Court observed as
“The purpose of sanction for prosecution is to prevent malicious and unnecessary prosecutions leading to harassment; it is a condition precedent for the launch of a prosecution. What the prosecution has to prove is that the sanction has been accorded with respect to the facts Constituting the offence. Narration of facts on the face of it is desirable but not always essential; if there is no such narration the prosecution must in the course of trial by extraneous evidence prove that those facts were before Sanctioning Authority who applied its mind to them before the grant of sanction; an opportunity of hearing is not necessary to be given before the grant of sanction. It is purely an administrative act.”
“The purpose of sanction for prosecution is to prevent malicious and unnecessary prosecutions leading to harassment; it is a condition precedent for the launch of a prosecution. What the prosecution has to prove is that the sanction has been accorded with respect to the facts Constituting the offence. Narration of facts on the face of it is desirable but not always essential; if there is no such narration the prosecution must in the course of trial by extraneous evidence prove that those facts were before Sanctioning Authority who applied its mind to them before the grant of sanction; an opportunity of hearing is not necessary to be given before the grant of sanction. It is purely an administrative act.”
May 3, 2011
State of Gujarat Vs Mohanlal Jitamalji Porwal & Anr AIR 1987 SC 1321,
Hon’ble Supreme Court of India observed as under
"...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona-non-grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest....."Jan 24, 2011
Narendra Vs State of Karnataka, Decided On: 05.05.2009
A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case.
Jan 1, 2011
Himanshu Singh Sabharwal Vs State of M P, AIR 2008 SC 1943
Hon'ble Supreme Court observed, "The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency.”
Dec 30, 2010
State of Gujarat Vs Patel Ashwinkumar Ranchodbhai, 2008 CriLJ 3662
All the witnesses ie PW 1 to PW 5 did not support the prosecution case and turned hostile - We found that this is a case of failure of justice in which the criminal trial is taken very lightly by all concerned.
Crimes in society are real and concrete incident actually occurs. Crimes are not fancy or imagination, which Courts are called upon to decide. Therefore, greater responsibilities are to be shouldered by Courts while dispensation of justice. Prosecuting agency and investigation agency are also important factor in criminal justice system. Each component must do justice to its role in doing justice to aggrieved persons. The crimes are not affecting the individual, but influences the society as a whole and, therefore, the grave crimes are not against individual but against the society. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. This could be achieved through instrumentality of criminal law.
We are at pain to observe that neither the learned Trial Judge nor the learned APP endeavoured to find out the truth by probing further the case. Instead, as soon as the witnesses, who were eye-witnesses, turned hostile, the Trial Court as well as the learned APP shut the doors towards their pious and prime duty to search for the truth and the trial was closed in extreme hurry. We find that the Investigating Officer, who is named in the charge-sheet, could not be examined by the learned APP nor such vigilance could be shown by the Trial Court to reach at the truth. It is not the law that when eye-witness turns hostile, the Courts should abandon the search for the truth and learned APP should become oblivious to put forward the whole prosecution case and instead of adducing further evidence for search of truth, simply giving purshis in the case to lack the whole case in a cupboard so as to ignore completely the heinous crime like murder committed under the nose of the society. The Investigating Officer could have been examined to throw light on the circumstances of the case and could have proved the case beyond reasonable doubt despite eyewitnesses turned hostile.
True that criminal justice deals with complex human problems and diverse human beings. On account of relations, witnesses may turn hostile and witnesses may resile when search for the truth is vigorously undertaken through instrumentality of criminal law. In trials, therefore, it becomes the duty of the Judge presiding over a criminal trial, to appreciate the evidence from all corners, and if the evidence is not produced, though available, then, the same could be produced. The Courts exist for doing justice to the persons who are affected.
This is a fact that most of the witnesses coming in the Courts despite taking oath, make false statement to suit the interest of the parties. Effective and stern action is required to be taken on such a stand, which may be taken upon the witnesses. The mere existence of penal provisions to deal with perjury would be a cruel joke with the society unless the Courts stop to take evasive recourse despite proof of the commission of the offence.
It is known and cardinal principle of evidence that even if a major portion of evidence is found to be deficient in case residue is sufficient to prove guilt of an accused, the conviction can be maintained. It is the duty of the Court to separate grain from chaff in coming to the conclusion of truth. It also becomes the duty of the Court to take into consideration of relevant evidence available and Courts are empowered to produce on record such evidence if the prosecution failed in their duties to produce such evidence. The conclusion of a criminal trial must be the outcome of cool deliberations and the scanning of the material by the informed mind of the Judge that leads to determination.
A witness may not stand the test of cross-examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, in/or close to powers arid muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in casual manner and are not able to devote proper attention and time.
Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case.
Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and Courts have been compelled to accept that "society suffers by wrong convictions and it equally, suffers by wrong acquittals".
K. Lack of 'robust judging' has stated in Criminal Courts need of the hour is "robust judging'. The trial Judge is the linchpin in every case, and he has also its eyes and ears. He is not merely a recorder of facts but a purveyor of all evidence, oral and circumstantial. It is said by him that a good trial Judge needs to have a 'third ear' i.e. hear and comprehend what is not said.
Crimes in society are real and concrete incident actually occurs. Crimes are not fancy or imagination, which Courts are called upon to decide. Therefore, greater responsibilities are to be shouldered by Courts while dispensation of justice. Prosecuting agency and investigation agency are also important factor in criminal justice system. Each component must do justice to its role in doing justice to aggrieved persons. The crimes are not affecting the individual, but influences the society as a whole and, therefore, the grave crimes are not against individual but against the society. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. This could be achieved through instrumentality of criminal law.
We are at pain to observe that neither the learned Trial Judge nor the learned APP endeavoured to find out the truth by probing further the case. Instead, as soon as the witnesses, who were eye-witnesses, turned hostile, the Trial Court as well as the learned APP shut the doors towards their pious and prime duty to search for the truth and the trial was closed in extreme hurry. We find that the Investigating Officer, who is named in the charge-sheet, could not be examined by the learned APP nor such vigilance could be shown by the Trial Court to reach at the truth. It is not the law that when eye-witness turns hostile, the Courts should abandon the search for the truth and learned APP should become oblivious to put forward the whole prosecution case and instead of adducing further evidence for search of truth, simply giving purshis in the case to lack the whole case in a cupboard so as to ignore completely the heinous crime like murder committed under the nose of the society. The Investigating Officer could have been examined to throw light on the circumstances of the case and could have proved the case beyond reasonable doubt despite eyewitnesses turned hostile.
True that criminal justice deals with complex human problems and diverse human beings. On account of relations, witnesses may turn hostile and witnesses may resile when search for the truth is vigorously undertaken through instrumentality of criminal law. In trials, therefore, it becomes the duty of the Judge presiding over a criminal trial, to appreciate the evidence from all corners, and if the evidence is not produced, though available, then, the same could be produced. The Courts exist for doing justice to the persons who are affected.
This is a fact that most of the witnesses coming in the Courts despite taking oath, make false statement to suit the interest of the parties. Effective and stern action is required to be taken on such a stand, which may be taken upon the witnesses. The mere existence of penal provisions to deal with perjury would be a cruel joke with the society unless the Courts stop to take evasive recourse despite proof of the commission of the offence.
It is known and cardinal principle of evidence that even if a major portion of evidence is found to be deficient in case residue is sufficient to prove guilt of an accused, the conviction can be maintained. It is the duty of the Court to separate grain from chaff in coming to the conclusion of truth. It also becomes the duty of the Court to take into consideration of relevant evidence available and Courts are empowered to produce on record such evidence if the prosecution failed in their duties to produce such evidence. The conclusion of a criminal trial must be the outcome of cool deliberations and the scanning of the material by the informed mind of the Judge that leads to determination.
A witness may not stand the test of cross-examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, in/or close to powers arid muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in casual manner and are not able to devote proper attention and time.
Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case.
Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and Courts have been compelled to accept that "society suffers by wrong convictions and it equally, suffers by wrong acquittals".
K. Lack of 'robust judging' has stated in Criminal Courts need of the hour is "robust judging'. The trial Judge is the linchpin in every case, and he has also its eyes and ears. He is not merely a recorder of facts but a purveyor of all evidence, oral and circumstantial. It is said by him that a good trial Judge needs to have a 'third ear' i.e. hear and comprehend what is not said.
Jul 31, 2010
Shiv Kumar v. Hukam Chand 1999 (7) SCC 467
Hon’ble Supreme Court of India observed, “In the magistrate's court anybody (except a police officer below the rank of Inspector) can conduct prosecution, if the magistrate permits him to do so. Once the permission is granted the person concerned can appoint any counsel to conduct the prosecution on his behalf in the magistrate's court….. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a session court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couached in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.”
Sep 6, 2009
State of Rajasthan Vs. Naresh @ Ram Naresh Cr.A. No. 837 of 2002 Decided by supreme court on: 26.08.2009
An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. The view that is taken by the High Court is found to be a plausible view, and therefore, the benefit must always go to the accused and not to the prosecution. If the prosecution wants to prove the fact, the same must be proved by leading evidence, which is reliable and trustworthy, which pinpoints and conclusively proves the guilt of the accused.
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