If a witness is not declared hostile by prosecution, his evidence is binding on prosecution.
It is not known as to why the public prosecutor in the trial court failed to seek permission of the court to declare him hostile. His evidence is binding on the prosecution as it is. No reason, much less valid reason has been stated by the Division Bench as to how evidence of PW-6 can be ignored.
13. In the present case the prosecution never declared PWs 6,18, 29 and 30 hostile.Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence. This court in Mukhtiar Ahmed Ansari vs. State (NCT of Delhi)1 observed:
A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution.
Supreme Court of India
Javed Masood & Anr. vs State Of Rajasthan on 9 March, 2010
Bench: B. Sudershan Reddy, Surinder Singh Nijjar
