IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 114 of 2008
Lahu Kamlakar Patil and Anr. ….. Appellants
Versus
State of Maharashtra … Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal has been preferred by original accused Nos. 2 and
3 assailing the judgment of conviction and order of sentence passed by the
High Court of Judicature at Bombay in Criminal Appeal No. 790 of 1989
whereby the High Court has confirmed the conviction and sentence passed by
the learned Additional Sessions Judge, Raigad, Alibag in Sessions Case No.
113 of 1988 for offences punishable under Sections 302, 147, 148, 149 and
452 of the Indian Penal Code, 1860 (for short “the I.P.C.”) and sentenced
the appellants to suffer life imprisonment and pay a fine of Rs.1,000/-
each, in default, to suffer simple imprisonment for six months.
2. Filtering the unnecessary details, the prosecution case is that on
19.2.1988, PW-1, Chandrakant Phunde, the informant, who is the owner
of a rickshaw bearing No. MCT-858, while going from Somatane to Panvel
for his business, met PW-2, Janardan Bhonkar, who hired his rickshaw
for Panvel. On the way, they met the deceased Shriram @ Bhau
Harishchandra Patil who wanted to go in the rickshaw and with the
consent of Janardan, the three of them proceeded towards Panvel. The
deceased, Bhau Harishchandra Patil, went to Gemini Tailors to pick up
his stitched clothes at Palaspe Phata and thereafter they stopped near
Milan Hotel to have some snacks. As the prosecution story proceeds,
when they were inside the hotel, 10 to 15 people entered inside being
armed with swords, iron bars and sticks. As alleged, Lahu Kamlakar
Patil, the appellant No. 1, had an iron bar and appellant No. 2, Bali
Ram, had a sword. Bali Ram and Lahu assaulted the deceased on his
head with their respective weapons and the other accused persons also
assaulted him. Janardan tried to resist and got hit on his right hand
finger due to the blow inflicted by the sword. As there was commotion
in the hotel, people ran hither and thither, and PW-2, Janardan, also
took the escape route. After the assault, the accused persons ran
away and Bhau was left lying there in the hotel in a pool of blood.
3. As the facts are further unfurled, Chandrakant Phunde went to the
police station, lodged an F.I.R. and handed over the stitched clothes
of the deceased which were in the rickshaw to the police. On the
basis of the F.I.R., a case under Sections 147, 148, 149, 302 and 452
of the I.P.C. was registered and the criminal law was set in motion.
In the course of investigation, the investigating agency got the
autopsy conduted, seized the weapons, prepared the `panchnama’,
examined the witnesses under Section 161 of the Code of Criminal
Procedure, 1973 (for short “the Code”) and arrested six accused
persons including the present appellants. After completing the
investigation, the investigating agency placed the charge-sheet before
the competent Court who, in turn, committed the matter to the Court of
Session and, eventually, it was tried by the learned Additional
Sessions Judge, Raigad Alibag.
4. The accused persons abjured their guilt and pleaded false implication
and, hence, faced trial.
5. In order to prove its case, the prosecution examined nine witnesses;
PW-1, Chandrakant Phunde, the informant, PW-2, Janardan Bhonkar, who
was an eye-witness to the occurrence, PW-3, Shantaram Jadhav, from
whom the accused persons had made enquires relating to the whereabouts
of the deceased, PW-4, Baburao Patil, father of the deceased, PW-5,
Prakash Patil, a post-occurrence witness who had reached Hotel Milan
to find that Bhau was lying in a pool of blood, PW-6, the Inspector
who had registered the complaint of PW-1, PW-7, Dyaneshwar Patil,
a panch witness who has proven the blood-stained clothes and the iron
bar, PW-8, Eknath Kamble, and PW-9, Shrirang Wahulkar, the two other
panch witnesses who have been declared hostile.
6. The defence chose not to adduce any evidence.
7. The learned trial Judge, after scrutiny of the evidence, found that
the prosecution had been able to prove the case against the present
appellants and, accordingly, convicted them for the offences and
imposed the sentence as has been stated hereinbefore. As far as the
other accused persons are concerned, he did not find them guilty and,
accordingly, recorded an order of acquittal in their favour.
8. The convicted-accused persons assailed their conviction by filing an
appeal and the High Court, placing reliance on the seizure memoranda,
namely, Exhibits P-25, 26, 35 and 36 and accepting the credibility of
the testimony of PW-2 and a part of the evidence of PW-1, the
informant, who had turned hostile, affirmed the conviction and the
sentence.
9. We have heard Mr. K.N. Rai, learned counsel for the appellants, and
Mr. Sanjay V. Kharde, learned counsel for the respondent.
10. Mr. Rai, learned counsel for the appellants, criticizing the judgment
of conviction passed by the High Court, submitted that when the
version of PWs-3 to 5 have not been given credence, the evidence of PW-
1 and PW-2 should not have been relied upon by the trial court as well
as by the High Court and due to such reliance, the decision is
vitiated. It is urged by him that when the informant had turned
hostile, the F.I.R. could not have been relied upon as a piece of
substantial evidence corroborating the testimony of PW-2, the alleged
eye-witness. It is vehemently canvassed by him that the conviction
has been rested on the testimony of PW-2 who has claimed to be the eye-
witness though his version is totally unreliable because of his
unnatural conduct and his non-availability for examination by the
police which is not founded on any ground. It is urged by him that
the Investigating Officer had not been examined as a consequence of
which prejudice has been caused to the appellants. That apart, the
seizure of weapons has not been established since the panch witnesses
have turned hostile and the High Court has relied upon the discovery
made at the instance of accused No. 1 who has been acquitted. The
last plank of argument of the learned counsel for the appellants is
that the conviction is recorded on the basis of assumptions without
material on record to convict the appellants.
11. Mr. Kharde, learned counsel for the State, supporting the judgment of
conviction, contended that though the informant had turned hostile,
yet his evidence cannot be totally discarded as it is well settled in
law that the same can be relied upon by the prosecution as well as by
the defence. It is his further submission that the evidence of PW-1,
Chandrakant Phunde, clearly proves the first part of the incident and
what he has stated in the examination-in-chief cannot be disregarded.
It is urged by him that once that part of the testimony is accepted,
the deposition of PW-2, the eyewitness to the incident gains
acceptation as he has vividly described the incident and the assault.
Learned counsel would further submit that the minor contradictions and
discrepancies do not make his deposition unreliable.
12. At the very outset, we may state that the learned trial Judge had
placed reliance on the evidence of PWs-3 to 5, but the High Court has
not accepted their version and affirmed the conviction on the basis of
the testimony of PWs-1 and 2 and other circumstances. Therefore, the
evidence of the witnesses which are required to be considered is that
of PWs-1 and 2 and their intrinsic worth.
13. PW-1, the informant, has stated in the examination-in-chief that the
deceased had taken PW-2, Janardan Bhonkar, to the tailor’s shop and,
eventually, took Bhau to Milan Hotel where he waited outside in the
rickshaw. He has also deposed that he was asked to come inside the
hotel and while he was having water, 8-10 boys arrived there and
started assaulting the deceased. Seeing the assault, he got scared
and ran away. After deposing to that effect, he has stated that he
had not seen anything and he was taken to the police station and his
signature was taken on the complaint which was not shown to him.
After being declared hostile, in the cross-examination he has denied
the contents of the F.I.R. and has deposed that he came to know that
Bhau had been murdered.
14. In the cross-examination by one of the accused, he has stated that he
was brought to the police station in a drunken state and kept in the
police station till 10.00 a.m. the next day. The trial court as well
as the High Court has accepted his version in the examination-in-chief
to the extent that he had taken the deceased and PW-2 to the tailor’s
shop and thereafter to the hotel and further that he had seen 8-10
boys entering the hotel and assaulting the deceased.
15. The learned counsel for the appellants submitted that the whole
evidence of PW-1 is to be discarded inasmuch as he has clearly stated
that he has not seen anything and his signature was taken on the blank
paper. In any case, he has not deposed anything about the assailants
except stating that 8-10 boys came and assaulted. Emphasis had been
laid that the informant having been declared hostile, the whole case
of the prosecution story collapses like a pack of cards. Thus,
emphasis is on the aspect that once a witness is declared hostile,
that too in the present circumstances, his testimony cannot be relied
upon by the prosecution.
16. It is settled in law that the evidence of a hostile witness is not to
be rejected in toto. In Rameshbhai Mohanbhai Koli and Others v. State of
Gujarat[1], reiterating the principle, this Court has stated thus:-
“16. It is settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross-examined
him. The evidence of such witnesses cannot be treated as effaced
or washed off the record altogether but the same can be accepted
to the extent that their version is found to be dependable on a
careful scrutiny thereof. (Vide Bhagwan Singh v. State of
Haryana[2], Rabindra Kumar Dey v. State of Orissa[3], Syad Akbar
v. State of Karnataka[4] and Khujji v. State of M.P.[5])
17. In State of U.P. v. Ramesh Prasad Misra[6] this Court held
that evidence of a hostile witness would not be totally
rejected if spoken in favour of the prosecution or the
accused but required to be subjected to close scrutiny and
that portion of the evidence which is consistent with the
case of the prosecution or defence can be relied upon. A
similar view has been reiterated by this Court in Balu Sonba
Shinde v. State of Maharashtra[7], Gagan Kanojia v. State of
Punjab[8], Radha Mohan Singh v. State of U.P.[9], Sarvesh
Narain Shukla v. Daroga Singh[10] and Subbu Singh v.
State[11].”
17. Recently, in Bhajju alias Karan Singh v. State of Madhya Pradesh[12],
a two-Judge Bench, in the context of consideration of the version of a
hostile witness, has expressed thus: -
“Normally, when a witness deposes contrary to the stand of the
prosecution and his own statement recorded under Section 161
CrPC, the prosecutor, with the permission of the court, can pray
to the court for declaring that witness hostile and for granting
leave to cross-examine the said witness. If such a permission is
granted by the court then the witness is subjected to cross-
examination by the prosecutor as well as an opportunity is
provided to the defence to cross-examine such witnesses, if he so
desires. In other words, there is a limited examination-in-chief,
cross-examination by the prosecutor and cross-examination by the
counsel for the accused. It is admissible to use the examination-
in-chief as well as the cross-examination of the said witness
insofar as it supports the case of the prosecution.”
[Emphasis added]
18. In the case of Sidhartha Vashisht alias Manu Sharma v. State (NCT of
Delhi)[13], while discussing about the evidence of a witness who turned
hostile, the Bench observed that his evidence to the effect of the presence
of accused at the scene of the offence was acceptable and the prosecution
could definitely rely upon the same.
19. Keeping in view the aforesaid position of law, the testimony of PW 1
has to be appreciated. He has admitted his signature in the F.I.R. but has
given the excuse that it was taken on a blank paper. The same could have
been clarified by the Investigating Officer, but for some reason, the
Investigating Officer has not been examined by the prosecution. It is an
accepted principle that non-examination of the Investigating Officer is not
fatal to the prosecution case. In Behari Prasad v. State of Bihar[14],
this Court has stated that non-examination of the Investigating Officer is
not fatal to the prosecution case, especially, when no prejudice is likely
to be suffered by the accused. In Bahadur Naik v. State of Bihar[15], it
has been opined that when no material contradictions have been brought out,
then non-examination of the Investigating Officer as a witness for the
prosecution is of no consequence and under such circumstances, no prejudice
is caused to the accused. It is worthy to note that neither the trial
judge nor the High Court has delved into the issue of non-examination of
the Investigating Officer. On a perusal of the entire material brought on
record, we find that no explanation has been offered. The present case is
one where we are inclined to think so especially when the informant has
stated that the signature was taken while he was in a drunken state, the
panch witness had turned hostile and some of the evidence adduced in the
court did not find place in the statement recorded under Section 161 of the
Code. Thus, this Court in Arvind Singh v. State of Bihar[16], Rattanlal v.
State of Jammu and Kashmir[17] and Ravishwar Manjhi and others v. State of
Jharkhand[18], has explained certain circumstances where the examination of
Investigating Officer becomes vital. We are disposed to think that the
present case is one where the Investigating Officer should have been
examined and his non-examination creates a lacuna in the case of the
prosecution.
20. Having stated that, we may proceed to analyse his evidence. He has
supported the prosecution story but to the point of assault and thereafter
he has resiled from his version. The submission of the learned counsel for
the State is that to such extent his testimony deserves acceptance. Even
if the said submission is accepted, it only goes to the extent of proving
that PWs-1 and 2 and the deceased had travelled in a rickshaw, went to the
tailor’s shop, entered inside the Milan Hotel and some boys came inside the
hotel and started assaulting the deceased. PW-1 had not named any
assailant in the court to support the version of the FIR. On a scanning of
the evidence, we find that he had stated that he had run away from the
scene of assault and, therefore, his testimony does not, in any way,
establish the involvement of the appellants in crime.
21. On a scrutiny of the entire material on record, we find that the
conviction is based on the testimony of the sole eyewitness, PW-2. True it
is, corroboration to the extent of going to Milan Hotel is there from the
testimony of PW-1, but the question remains whether the conviction can be
sustained if the version of PW-2 is not accepted. The learned counsel for
the appellants has seriously challenged the reliability and trustworthiness
of the said witness, PW-2, who has been cited as an eyewitness.
22. The attack is based on the grounds, namely, that the said witness ran
away from the spot; that he did not intimate the police about the incident
but, on the contrary, hid himself behind the pipes near a canal till early
morning of the next day; that though he claimed to be eye witness, yet he
did not come to the spot when the police arrived and was there for more
than three hours; that contrary to normal human behaviour he went to Pune
without informing about the incident to his wife and stayed for one day;
that though the police station was hardly one furlong away yet he did not
approach the police; that he chose not even to inform the police on the
telephone though he arrived at home; that after he came from Pune and
learnt from his wife that the police had come on 21.2.1988, he went to the
police station; and that in the backdrop of such conduct, his version does
not inspire confidence and deserves to be ignored in toto.
23. From the aforesaid grounds, the primary attack of the learned counsel
for the appellants is that there has been delay in the examination of the
said witness and he has contributed for such delay and, hence, his
testimony should be discredited. In Mohd. Khalid v. State of W.B.[19], a
contention was raised that three witnesses, namely, PWs-40, 67 and 68,
could not be termed to be reliable. Such a contention was advanced as
regards PW-68 that there had been delay in his examination. The Court
observed that mere delay in examination of the witnesses for a few days
cannot in all cases be termed fatal so far as prosecution is concerned.
There may be several reasons and when the delay is explained, whatever the
length of delay, the court can act on the testimony of the witnesses, if it
is found to be cogent and credible. On behalf of the prosecution, it was
urged that PW-68 was attending to the injured persons and taking them to
the hospital. Though there was noting in the medical reports that unknown
persons had brought them, yet the court did not discard the evidence of PW-
68 therein on the foundation that when an incident of such great magnitude
takes place and injured persons are brought to the hospital for treatment,
it is the foremost duty of the doctors and other members of the staff to
provide immediate treatment and not to go about collecting information,
though that would be contrary to the normal human conduct. Thus, emphasis
was laid on the circumstance and the conduct.
24. In Gopal Singh and others v. State of Madhya Pradesh[20], this Court
had overturned the judgment of the High Court as it had accepted the
statement of an eyewitness of the evidence ignoring the fact that his
behaviour was unnatural as he claimed to have rushed to the village but had
still not conveyed the information about the incident to his parents and
others present there and had chosen to disappear for a couple of hours on
the spacious and unacceptable plea that he feared for his own safety.
25. In Alil Mollah and another v. State of W.B.[21], an eyewitness, who
was employee of the deceased, witnessed the assault on the employer but did
not go near the employer even after the assailants had fled away to see the
condition in which the employer was after having suffered the assault. His
plea was that he was frightened and fled away to his home. He had admitted
in his cross-examination that he neither disclosed at his home nor in his
village as to what he had seen in the evening when the incident occurred.
He gave the information to the police only after 2-3 days. The plea of
being frightened and not picking up courage to inform anyone in the village
or elsewhere was not accepted by this Court.
26. From the aforesaid pronouncements, it is vivid that witnesses to
certain crimes may run away from the scene and may also leave the place due
to fear and if there is any delay in their examination, the testimony
should not be discarded. That apart, a court has to keep in mind that
different witnesses react differently under different situations. Some
witnesses get a shock, some become perplexed, some start wailing and some
run away from the scene and yet some who have the courage and conviction
come forward either to lodge an FIR or get themselves examined immediately.
Thus, it differs from individuals to individuals. There cannot be
uniformity in human reaction. While the said principle has to be kept in
mind, it is also to be borne in mind that if the conduct of the witness is
so unnatural and is not in accord with acceptable human behaviour allowing
of variations, then his testimony becomes questionable and is likely to be
discarded.
27. Keeping in mind the aforesaid, we shall proceed to scrutinize the
evidence of PW-2.
As is evincible from his deposition, on seeing the
assault he got scared, ran away from the hotel and hid himself behind the
pipes till early morning.
He went home, changed his clothes and rushed to
Pune.
He did not mention about the incident to his family members.
He
left for Pune and the reason for the same was also not stated to his family
members.
He did not try to contact the police from his residence which he
could have.
After his arrival at Pune, he did not mention about the
incident in his sister-in-law’s house.
After coming back from Pune, on the
third day of the occurrence, his wife informed that the police had come and
that Bhau, who had accompanied him, was dead.
It is interesting to note
that in the statement under Section 161 of the Code, he had not stated that
he was hiding himself out of fear or he was scared of the police. In the
said statement, the fact that he was informed by his wife that Bhau was
dead was also not mentioned.
One thing is clear from his testimony that
seeing the incident, he was scared and frightened and ran away from the
hotel. He was frightened and hid himself behind the pipes throughout the
night and left for home the next morning. But his conduct not to inform
his wife or any family member and leaving for Pune and not telling anyone
there defies normal human behaviour.
He has also not stated anywhere that
he was so scared that even after he reached home, he did not go to the
police station which was hardly at any distance from his house.
There is
nothing in his testimony that he was under any kind of fear or shock when
he arrived at his house.
It is also surprising that he had not told his
family members and he went to Pune without disclosing the reason and after
he arrived from Pune and on being informed by his wife that his companion
Bhau had died, he went to the police station.
We are not oblivious of the
fact that certain witnesses in certain circumstances may be frightened and
behave in a different manner and due to that, they may make themselves
available to the police belatedly and their examination gets delayed. But
in the case at hand, regard being had to the evidence brought on record
and, especially, non-mentioning of any kind of explanation for rushing away
to Pune, the said factors make the veracity of his version doubtful. His
evidence cannot be treated as so trustworthy and unimpeachable to record a
conviction against the appellants.
The learned trial court as well as the
High Court has made an endeavour to connect the links and inject theories
like fear, behavioural pattern, tallying of injuries inflicted on the
deceased with the Post Mortem report and convicted the appellants.
In the
absence of any kind of clinching evidence to connect the appellants with
the crime, we are disposed to think that it would not be appropriate to
sustain the conviction.
28. In the result, the appeal is allowed. The judgment of conviction and
sentence recorded by the learned Sessions Judge and affirmed by the High
Court is set aside and the appellants be set at liberty forthwith unless
their detention is required in connection with any other case.
……………………………….J.
[K. S. Radhakrishnan]
New Delhi; ……………………………….J.
December 14, 2012 [Dipak Misra]
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[1] (2011) 11 SCC 111
[2] (1976) 1 SCC 389
[3] (1976) 4 SCC 233
[4] (1980) 1 SCC 30
[5] (1991) 3 SCC 627
[6] (1996) 10 SCC 360
[7] (2002) 7 SCC 543
[8] (2006) 13 SCC 516
[9] (2006) 2 SCC 450
[10] (2007) 13 SCC 360
[11] (2009) 6 SCC 462
[12] (2012) 4 SCC 327
[13] (2010) 6 SCC 1
[14] (1996) 2 SCC 317
[15] (2000) 9 SCC 153
[16] (2001) 6 SCC 407
[17] (2007) 13 SCC 18
[18] (2008) 16 SCC 561
[19] (2002) 7 SCC 334
[20] (2010) 6 SCC 407
[21] (1996) 5 SCC 369
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