In BAIL APPLN. 3729/2022-DEL HC- Entire prosecution case can’t be discarded on ground that sole eye witness had turned hostile, observes Delhi HC while refusing to grant bail to man for killing his own sister
Justice Rajnish Bhatnagar [24-05-2023]

Read Order: ARUN KUMAR @ AALU Vs. STATE, NCT OF DELHI 

Tulip Kanth

New Delhi, May 29, 2023: While reiterating that the testimony of the hostile witness is not to be discarded in toto, the Delhi High Court has dismissed the bail application of a man who had killed his own sister with a knife.

“Now as far as the question that the sole eye witness has turned hostile, may not in my opinion, is the sole ground for discarding the entire prosecution case as it is a settled proposition of law that the testimony of the hostile witness is not to be discarded in toto, Justice Rajnish Bhatnagar asserted.

 The facts of this case were such that a PCR call was received in the Police Station by a lady caller stating that brother had attacked his sister with a knife and the lady had taken her to the hospital. So they needed the police. The said DD was entrusted to ASI and he alongwith Ct. Rakesh reached the said hospital, where he collected the MLC of injured Neelam W/o Suraj.

The patient was unfit for statement and later on injured was shifted to Safdar Jung Hospital for further treatment. The parents of the injured again shifted her to Jeevan Mala Hospital, Karol Bagh.

The prosecution had submitted before the Court that Bimla(mother) was the eye witness of the incident and according to her on the date of alleged incident, her sons Ashwani and the petitioner came inside the house and the petitioner, caught hold of his sister Neelam (since deceased) and her other son Ashwani inflicted knife injury on Neelam. It was further alleged by her that the petitioner also attacked his sister Neelam with the same knife as a result of which Neelam received multiple stab injuries and later on succumbed to her injury.

A case was registered u/s 307/34 IPC and when injured expired, section 302 IPC was added in the case. During the investigation of the case, accused Ashwani @ Ashu and petitioner Arun @ Aloo were arrested and sent to judicial custody.

It was the prosecution’s case that the allegations against the petitioner were grave and serious in nature and he alongwith his brother (co-accused) had inflicted knife injury on Neelam (since deceased) who was his sister, as a result of which, Neelam had expired.

It was submitted that Bimla Devi had turned hostile during her examination in the Court but simply because she had turned hostile, the same couldnot be a ground for bail in the instant case, as other witnesses of the case were also yet to be examined who could throw light on the circumstances leading to the murder of deceased Neelam and corroborate the same. 

At the outset, the Bench observed that the sole eye witness turning hostile, can’t be the sole ground for discarding the entire prosecution case as it is a settled proposition of law that the testimony of the hostile witness is not to be discarded in toto.

The Bench considered the admitted fact on record that deceased Neelam was leaving with her mother i.e. Bimla Devi in the same house where according to the prosecution she was stabbed to death. As per the prosecution, injured Neelam was taken to the hospital by Bimla Devi.

The MLC showed that the injured Neelam (since deceased) was brought to the hospital by Bimla Devi who gave a history of physical assault by sharp object. The witness-Bimla Devi, initially gave a statement to the police that Neelam was stabbed by the petitioner and his co-accused brother but later on she did not support her version.

“So, as of now, detailed analysis of testimony of PW-Bimla Devi would not be in the fitness of things as the same might prejudice the case of either of the parties. But one cannot lose sight of the fact that when according to PW Bimla Devi she was not present at the time of the incident, then how could she tell the treating doctor that physical assault was given by a sharp object, unless and until, she had seen the incident but I will stop at that and will not further comment on the merits of the case”, the Bench said.

Noting the fact there was no forceful entry in the house where the incident took place, the Bench observed that the allegations against the petitioner were grave and serious in nature.

Therefore, in these circumstances, the Bench held that no ground for bail was made out.