Tuesday, December 18, 2012


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CRIMINAL APPEAL No. 114 of 2008
Lahu Kamlakar Patil and Anr. ….. Appellants
State of Maharashtra … Respondent
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
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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,
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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
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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 eyewitness
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
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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
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
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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 eyewitness.
It is vehemently canvassed by him that the
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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
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
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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.
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13. PW-1, the informant, has stated in the examination-inchief
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-
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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
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Koli and Others v. State of Gujarat1, 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 Haryana2, Rabindra
Kumar Dey v. State of Orissa3, Syad
Akbar v. State of Karnataka4 and Khujji
v. State of M.P.5)
17. In State of U.P. v. Ramesh Prasad
Misra6 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 Maharashtra7, Gagan
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
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Kanojia v. State of Punjab8, Radha
Mohan Singh v. State of U.P.9,
Sarvesh Narain Shukla v. Daroga
Singh10 and Subbu Singh v. State11.”
17. Recently, in Bhajju alias Karan Singh v. State of
Madhya Pradesh12, 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 crossexamine
the said witness. If such a
permission is granted by the court then
the witness is subjected to crossexamination
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-inchief,
cross-examination by the
prosecutor and cross-examination by
the counsel for the accused. It is
admissible to use the examination-inchief
as well as the cross-examination of
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
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the said witness insofar as it supports
the case of the prosecution.”
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 nonexamination
of the Investigating Officer is not fatal to the
prosecution case. In Behari Prasad v. State of Bihar14,
13 (2010) 6 SCC 1
14 (1996) 2 SCC 317
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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 Bihar15, 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 Bihar16, Rattanlal v. State of
15 (2000) 9 SCC 153
16 (2001) 6 SCC 407
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Jammu and Kashmir17 and Ravishwar Manjhi and
others v. State of Jharkhand18, 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
17 (2007) 13 SCC 18
18 (2008) 16 SCC 561
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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
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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
19 (2002) 7 SCC 334
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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
Pradesh20, this Court had overturned the judgment of the
20 (2010) 6 SCC 407
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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
21 (1996) 5 SCC 369
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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.
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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
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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
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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.
[K. S. Radhakrishnan]
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New Delhi;
December 14, 2012 [Dipak Misra]

Source: Supreme Court of India

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