On December 16, the single-judge bench of the Allahabad High Court, which included Justice Shekhar Kumar Yadav, made the recent observation that it is not appropriate for the court to make a decision in a bail matter based on the testimony of the hostile witnesses because doing so would amount to evaluating the testimony. 

With this, the bench denied the second bail request made by a murder suspect (Krishna Kant), who had argued that since two witnesses from the last piece of evidence had been deemed hostile and had not backed the prosecution's case, he should be allowed bail.

The Court emphasised that witness animosity could not be a new justification for granting bail to the accused applicant.

" If any opinion is taken on the basis of the evidence given by the hostile witnesses, it amounts to evaluating the evidence by this Court, which is impermissible while deciding the bail application under Section 439 Cr.P.C. It is well settled principle that trial court can record conviction based on the evidence of the Investigating Officer also. Therefore, the ground urged now cannot be considered for granting bail to accused applicant."

In essence, the applicant has been charged with murdering the deceased (Govind) on June 1st with the assistance of a co-accused. The informant (the deceased's father) filed a FIR after discovering the body in the early hours of June 2, 2018. 

AGA argued that the trial court would be free to decide whether or not to convict the accused based on the other evidence presented by other witnesses during the trial, even though two of the witnesses of the last seen evidence had changed their testimonies and the informant (P.W. 3) had also stopped supporting the prosecution's case.

The Court rejected the new reason for bail after considering this position and observing that the witnesses' animosity could not be a new basis for giving bail to the accused-applicant. However, the trial court was instructed to accelerate the trial in the matter.

Case title: Krishna Kant vs. State of U.P
Citation: CRIMINAL MISC. BAIL APPLICATION No. - 33329 of 2020

Link: https://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do