The State of Gujarat vs Bashirbhai Kasambhai

M.D. Shah, J.

1 This revision is filed by the applicant-State against the judgment and order dated 2-12-2004 passed by the learned Special Judge, Fast Track Court No. 4, Navsari, in Special Case No. 9 of 2003 by which the accused was acquitted of the charges levelled against him.

In brief, case of the prosecution is that the complainant-Rameshbhai Solaknki, who was having a hair cutting saloon at Village Pratapnagar, Tal. Vasda, Dist. Navsari, purchased a house from one Minaben Rathod under a registered sale deed. For making necessary entries on the Panchyat record qua the said purchase, he approached Talati-cum-Mantri of Village Pratapnagar and the accused demanded Rs. 5,000/-which was brought down to Rs. 5,000/-. As the complainant did not want to pay illegal gratification, ACB was approached by him by filing a complaint. A trap was laid and accused was caught and he was charged for the offences under Sections 7, 13(1)(d) and 13(2) of Prevention of Corruption Act. When the evidence of complainant was recorded, he stated that he does not remember anything about the trap and hence, learned Public Prosecutor requested the Court to declare the complainant as hostile. However, said request was rejected by the learned Special Judge, vide order dated 2-12-2004. Being aggrieved by the said order, this revision is preferred by the State.

Heard learned APP, Mr. L.R. Pujari for the applicant-State and learned advocate, Mr. N.K. Majmudar for the opponent.

It is submitted by learned APP, Mr. Pujari, that the impugned order is contrary to law and evidence on record. It is submitted that the complainant wanted to save the accused and hence, he has stated that he does not remember about what happened after phenolphthalein powder was smeared on the currency notes and hence, it was requested by the prosecution to declare him as a hostile. However, the court below failed to declare him as hostile. Relying on a decision of the Hon''ble Apex Court reported in AIR 1979 SC 569, he has stated that once the prosecution witness turns hostile, prosecution is entitled to pray to treat the said witness as hostile witness. It is therefore urged that the impugned order be quashed and set aside and this revision be allowed.

Learned advocate, Mr. N.K. Majmudar has submitted that appropriate order be passed.

This Court has gone through the judgment and order passed by the learned Special Court as well as the evidence of the complainant recorded.

As far as evidence of complainant is concerned, he has deposed about the demand having made by the accused and complaint having made before ACB for laying a trap against the accused. However, he has deposed about phenolphthalein powder having smeared on the currency notes. Thereafter, he was not supporting the case of the prosecution and hence, learned Public Prosecutor requested the Court for declaring the said witness as hostile. However, since it appeared to the trial court that he is not telling the real truth though he was remembering everything, the impugned order was passed.

As far as this aspect is concerned, when the complainant is not supporting the case of the prosecution by not telling the real happenings of the incident and when learned Public Prosecutor requesting the Court to declare the said witness as hostile, the court was left with no other option but to declare the said prosecution witness as hostile and should have accepted part of the evidence which has been deposed by him as this will not dilute his other evidence if otherwise worthy of reliance. Merely because he has been declared hostile, his entire evidence is not wiped out. It is a settled principle of law that the evidence of a hostile witness cannot be discarded as a whole, and part thereof which are admissible in law, can be used by the prosecution or the defence. However, the trial court did not accede to the said request. Hence, the impugned order requires be quashing and setting aside.

In view of the above, this revision is allowed. The impugned order dated 2-12-2004 passed by the learned Special Judge, Fast Track Court No. 4, Navsari in Special Case No. 9 of 2003 is quashed and set aside. Request made by the learned APP at the court below to declare the witness as hostile is granted and he is permitted to cross examine him. Rule is made absolute.