Balu Sonba Shinde v State of Maharashtra (2002)

When a prosecution witness turns hostile, students often assume her evidence is simply wiped out. This case says the opposite: declaring a witness hostile does not by itself reject her evidence. The part of her testimony that helps either side can still be used, but only with great caution.

The case is also a striking illustration of that rule working for the accused. The complainant, declared hostile by the prosecution, gave an account that the Supreme Court found more natural than that of the prosecution's star witness — and on that and the gaps in the circumstantial chain, a conviction for murder confirmed by the High Court was set aside.

Shankar and Balu were brothers who had disputes over family property, later resolved by a deed of partition. On 8 July 1984, at about 10 a.m., while Shankar was fencing his portion of the land, he was struck on the head, and he died some days later. The prosecution case was that Balu hit him with an axe; an axe with blood marks, found on forensic examination to be of Shankar's blood group, was recovered near Balu's house.

The prosecution relied on two material witnesses:

• PW 4 Dharu, a relative of both brothers, said he was passing by, saw the brothers exchanging words and advised them not to quarrel, walked on, and after some 30 to 40 feet heard the cry of Baby. He came back and found Shankar lying injured, but did not see Balu anywhere. With his nephew Gorakh he carried Shankar to the front of Balu's house and then to hospital. He did not see the blow. Gorakh was never examined.
• PW 5 Baby, the complainant and the deceased's sister. Her written complaint said she saw Balu assaulting Shankar with an axe. In the witness box she said instead that boys told her Shankar was injured, she ran to the field and found him lying there, cried for water, neighbours gathered, and only then did Dharu and Gorakh arrive. The prosecutor had her declared hostile and cross-examined her; she admitted her thumb impression on the complaint but denied being an eyewitness.

The trial court, relying strongly on Dharu, convicted Balu under s. 302 IPC and sentenced him to imprisonment for life. The High Court dismissed his appeal. He appealed to the Supreme Court by special leave under Article 136.

1. Is the evidence of a witness declared hostile to be rejected altogether, or can part of it be relied on?
2. Did the circumstantial evidence, and in particular PW 4's testimony, form a complete chain establishing Balu's guilt?
3. Should the Supreme Court re-appreciate evidence in an appeal under Article 136?

The appeal was allowed. The conviction and sentence confirmed by the High Court were set aside and the appellant was directed to be released forthwith.

On the hostile witness

The Court stated the rule: "declaration of a witness to be hostile does not ipso facto reject the evidence and it is now well-settled that the portion of evidence being advantageous to the parties may be taken advantage of but the Court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance."

It relied on State of U.P. v Ramesh Prasad Misra (1996) 10 SCC 360: "It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted."

Applying this, the Court found that PW 5's evidence, if analysed, "totally negates the prosecution case", and that her account, "for which she has been declared hostile seems to be going in consonance with the normal reactions and normal behaviourial pattern."

On PW 4 and the circumstantial chain

"Admittedly PW 4 did not see the accused in fact giving the blow". His evidence was at best circumstantial. The Court found it improbable that a man who had gone only 30 to 40 feet, and turned back immediately on hearing the cry, saw neither the accused nor PW 5: "The factum of not seeing either the accused or PW 5 Dharu turned round within a distance of 30/40 feet is rather difficult to accept." The non-examination of Gorakh, a vital witness, went unnoticed by both courts below.

The Court restated the tests for circumstantial evidence from Hanumant Govind Nargundkar v State of Madhya Pradesh (AIR 1952 SC 343), M.G. Agarwal v State of Maharashtra (AIR 1963 SC 200, a Constitution Bench), and Pawan Kumar v State of Haryana, and concluded: "In the event, however, the chain is snapped and there is a gap therein, the accused cannot but be said to be entitled to a doubt."

On interference under Article 136

Ordinarily the Supreme Court does not re-appreciate evidence, but where it finds a lacuna in the High Court's appreciation and a likelihood of prejudice resulting in miscarriage of justice, it will go into the detail. Here the High Court had totally ignored the gap in the chain, and "there was truly a miscarriage of justice warranting intervention of this Court."

The evidence of a witness declared hostile is not rejected by that declaration alone. The portion of it that is advantageous to either party — prosecution or accused — may be relied upon, but the court must be extremely cautious and circumspect, subjecting it to close scrutiny, before accepting it. Where the case rests on circumstantial evidence and the chain has a gap, the accused is entitled to the benefit of the doubt.

• Direct question: What is the evidentiary value of the testimony of a hostile witness? Give the rule in the words of this case and Ramesh Prasad Misra: not rejected wholesale; the favourable portion may be used by either side after close scrutiny.
• Problem question: the complainant, declared hostile, denies being an eyewitness but supports the rest of the story. Use Balu Sonba Shinde to show that the court may rely on the consistent portion of her evidence, and that it may even favour the accused.
• Combine with circumstantial evidence: the judgment collects the classic tests (Hanumant, M.G. Agarwal, Pawan Kumar) — a useful authority for the proposition that a snapped chain means acquittal.
• Sub-point: note the weight the Court attached to the failure to examine Gorakh, the one person said to have been with PW 4 at the scene.