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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

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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 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  

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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  

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  

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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 eye-

witness.  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  

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  

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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-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-

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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 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

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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 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.

    ……………………………….J. [K. S. Radhakrishnan]           

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New Delhi;                   ……………………………….J. December 14, 2012                             [Dipak Misra]

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