Hostile witnesses’ evidence can be relied upon by court — SC

In a recent order upholding the conviction of a person who killed his father for berating him over his wasteful expenditure, the bench said, "The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such (hostile) witness."

Justice Sethi, writing the judgment for the bench, said it was for the trial court to decide, on the basis of the cross-examination carried out, which parts of the testimony of such witnesses to be relied upon.

"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 credit worthy," he said.

The conviction, in this case, was based on the extra-judicial confession made by the accused to some persons as there was no independent witness to the act of crime. The accused had challenged the order of conviction saying the extra-judicial confession has not been proved.

Gura Singh, who killed his father over the trivial issue, told two persons about the manner in which he killed his father and sought their help.

One of the persons, before whom the extra-judicial confession was made, had lodged the FIR with police. It was alleged by the accused that he was being wrongly roped into the case by the two witnesses with the oblique motive of usurping his father’s property.

Upholding the trial court’s view to believe the extra-judicial confession, the bench said it was a settled position of law that the extra-judicial confession, if true and voluntary, could be relied to convict the accused for the commission of the crime alleged.

"Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement," he said.

The nature of evidence given under extra-judicial evidence would depend on the nature of circumstances, the time when the confession was made and the credibility of the witnesses who spoke for such confession, the court said.

Justice Sethi said, "The retraction of extra-judicial confession, which is an usual phenomenon in criminal cases, would by itself not weaken the case of the prosecution based upon such a confession."

Sounding a word of caution, he said before relying on the alleged confession, the court has to be satisfied that it was voluntary and was not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought in suspicious circumstances to circumvent Sections 25 and 26, he said.

The court was required to look into the surrounding circumstances to find out whether such a confession was not inspired by any improper or collateral consideration or circumvention of law suggesting that it might not be true, the judge said.

Justice Sethi said, "All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised."

In the present case, the bench said the confession was made instantaneously and immediately after the occurrence of the crime and was not alleged to have been procured under any undue influence, coercion or pressure.

"There is no other suggestion which could tend to show that their evidence is tainted and that the extra-judicial confession was not voluntarily made by the accused," the bench said, upholding the life sentence awarded to the convict.