Page 1 Reportable

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

Page 2 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,

2

Page 3 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

3

Page 4 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

4

Page 5 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

5

Page 6 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

6

Page 7 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

7

Page 8 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.

8

Page 9 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-

9

Page 10 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

1

Page 11 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

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

1

Page 12 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

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

1

Page 13 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

,

13

(2010) 6 SCC 1

14

(1996) 2 SCC 317

1

Page 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

15

(2000) 9 SCC 153

16

(2001) 6 SCC 407

1

Page 15 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

17

(2007) 13 SCC 18

18

(2008) 16 SCC 561

1

Page 16 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

1

Page 17 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

1

Page 18 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

20

(2010) 6 SCC 407

1

Page 19 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

1

Page 20 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.

2

Page 21 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

2

Page 22 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

2

Page 23 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]

2

Page 24 New Delhi;

……………………………….J.

December 14, 2012 [Dipak Misra]

2