A three-judge Bench of Justice L. Nageswara Rao, Justice Sanjiv Khanna, and Justice BR Gavai, while deliberating upon the importance of the Witness Protection Scheme, 2018 to protect the witnesses from turning hostile, has held that the State had not taken adequate steps to strictly enforce the scheme.

The Court also held, "Right to testify in Courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in Courts due to threats or other pressures, then it is a clear violation of Article 19 (1) (a) and Article 21 of the Constitution."

Since the deceased belonged to different communities and wanted to marry each other, the persons belonging to the Jat community were infuriated. This led to the killing of three young men by hanging.

In this case, the Trial Court had held the Appellants-Accused guilty of the offences under Sections 147, 302 read with 149, 323 read with 149, 324 read with Section 149 and 201 read with Section 149 of IPC and Section 3(3)(10) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act).

While some of the accused were sentenced to death under Sections 302/149 IPC.

The Appellants-Accused filed appeals before the High Court in which the Court upheld the conviction; however, the death sentence imposed on some of the convicts was altered to life imprisonment.

Aggrieved, by their conviction and sentence, the Appellants-Accused filed appeals before the Supreme Court. One of the Criminal Appeals was filed by the State of Uttar Pradesh against the commutation of the death sentence of some of the accused to life imprisonment as pronounced by the High Court.

The Apex Court noted that the contention of the accused persons with respect to the contradictions and inconsistencies in the evidence of eye-witnesses, the High Court found that the contradictions and inconsistencies indicated in the statement of four eye-witnesses were trivial in nature.

"Concurrent findings of fact pertaining to the commission of the crime and involvement of the appellant cannot be subjected to further scrutiny by this Court, according to the well-established law laid down by this Court," the Court observed.

Further, the Bench opined that the testimonies of eye-witnesses were credible and were rightly accepted by the Courts below.

"The murder of Roshni, Vijendra and Ram Kishan is established beyond doubt," the Court held.

The only question which fell for consideration before the Apex Court was the culpability of the accused.

Further, the Court observed that the evidence of PW-1 was initially recorded when the incident took, thereafter, due to an interim order passed by the High Court, the trial of the case stayed for 6 years. In the meantime, turning of PW 1 hostile was understandable. In this context, the Bench held –

"The reasons for PW-1 turning hostile are understandable as she comes from lower-strata of the society, living in a village dominated by the caste to which the accused persons belong. She deposed about the incident and the involvement of the Appellants in detail and was later declared hostile along with 11 other prosecution witnesses."

Evidence rendered by Witnesses Turning Hostile

The Court held, "It is well settled that the evidence of prosecution witnesses cannot be rejected in toto merely because the prosecution chose to treat them as hostile and cross-examined them."

"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," the Bench opined.

Additionally, the Court observed, "If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of testimony which he finds to be creditworthy and act upon it."

While relying on the case Mrinal Das and Others v. State of Tripura, the Court held that credible evidence even of a hostile witness can form the basis for conviction in a criminal trial.

The state failed to provide protection to Witnesses

In this context, the Court noted that one of the main reasons for witnesses' turning hostile was that are not accorded appropriate protection by the State.

The Court added, "This unfortunate situation prevails because of the reason that the State has not undertaken any protective measures to ensure the safety of these witnesses, commonly known as "witness protection."

"As a protector of its citizens, it has to ensure that during a trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom the witness had deposed," the Bench held.

Additionally, the Bench held, "Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology."

Furthermore, the Court asserted, "The State has a definite role to play in protecting the witnesses, to start with, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens, it has to ensure that during a trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom the witness had deposed".

"Implementation of the Witness Protection Scheme at the time when the witnesses were deposing in the present case, would have prevented the prosecution witnesses from turning hostile. If the material witnesses were relocated from the village and escorted to the courtroom, they would have deposed freely in court," the Court held.

Imposition of Death Penalty

"In India, imposition of death sentence can be only after special reasons are recorded as per Section 354 (3) of the Code of Criminal Procedure, 1973," the Court noted.

The Court made a reference to the case of Bachan Singh v. State of Punjab, where it was held that while ascertaining the existence or absence of the special reasons, the Court must pay due regard both to the crime and criminal. Relative weightage has to be given to the aggravating and mitigating factors depending upon the facts and circumstances of each case.

While upholding the judgment of the High Court for conversion of death sentence into life imprisonment, the Apex Court observed, "The reasons given by the High Court for converting the death sentence of the above Appellants to life imprisonment are the advance age of some of the Appellants, the passage of long time after the commission of crime and mental sufferings that they have undergone."

The Court also passed acquittal orders for some of the accused.

In the light of these observations, the Court disposed of the appeal.

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