An accused has no right to cross-examine as witness an accomplice, who turned approver but whose conditional pardon was later withdrawn by court on a certificate from the public prosecutor that he was no longer a prosecution witness.
Giving this ruling, the Supreme Court on Tuesday rejected the plea of Abu Salem and other accused claiming a right to cross-examine Riyaz Ahmed Siddiqui, who turned approver and was granted pardon but who later became a hostile witness. Consequently, he was treated as a co-accused to be tried separately in the builder Pradeep Jain murder case.
According to the prosecution, Jain was murdered by hired gangsters at the instance of Abu Salem and four others on March 7, 1995. Attempts were also made on the life of Jain's brother, Sunil, that day for not parting with their landed property in Mumbai despite pressure. Abu Salem, after his arrest on September 18, 2002 in Lisbon, Portugal, was brought to India and cited as a key accused in this case and a charge sheet was filed against him and four others, including Siddiqui, who turned approver.
However, Siddiqui breached the conditions of pardon and he was treated as an accused. Abu Salem moved the Bombay High Court after his plea to cross-examine Siddiqui was rejected, and it held that the accused were entitled to exercise the right of cross-examining Siddiqui as a prosecution witness.
Salutary principle
Allowing the Maharashtra government's appeal against this judgment, a Bench of Justices P. Sathasivam and R.M. Lodha said: “The salutary principle of tendering pardon to an accomplice is to unravel the truth in a grave offence so that the guilt of the other accused persons concerned in the commission of crime could be brought home. It has been repeatedly said by this court that the object of Section 306 of the Criminal Procedure Code is to allow pardon in cases where a heinous offence is alleged to have been committed by several persons, so that with the aid of the evidence of the person granted pardon the offence may be brought home in respect of the rest.”
Writing the judgment, Justice Lodha said: “Section 306 of the Cr.PC empowers the Chief Judicial Magistrate or a Metropolitan Magistrate to tender pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence to which the Section applies, at any stage of the investigation or inquiry or trial of the offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge.”
The Bench said: “As a necessary corollary, once the pardon is withdrawn or forfeited on the certificate given by the public prosecutor that such person has failed to comply with the condition on which the tender was made, he is reverted to the position of an accused and liable to be tried separately and the evidence given by him, if any, has to be ignored in toto and does not remain legal evidence for consideration in the trial against the co-accused, albeit such evidence may be used against him in the separate trial where he gets an opportunity to show that he complied with the condition of pardon.”
The Bench set aside the impugned judgment.
