LAHU KAMLAKAR PATIL AND ANR.versusSTATE OF MAHARASHTRA

                   [2012] 9 S.C.R. 1173


           LAHU KAMLAKAR PATIL AND ANR.                          A
                              v.
               STATE OF MAHARASHTRA
            (Criminal Appeal No. 114 of 2008)
                   DECEMBER 14, 2012
                                                                 B
   [K. S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

     Penal Code, 1860 - ss. 302, 147, 148, 149 and 452 -
Death of one person - Due to alleged assault with deadly
weapons - Conviction of accused-appellants on basis of sole      C
testimony of PW2, the alleged eye-witness - Sustainability -
Held: Not sustainable - Conduct of PW2 after the alleged
incident was very unnatural and not in accord with acceptable
human behaviour allowing of variations - Veracity of PW2's
version doubtful - Absence of clinching evidence to connect      D
the appellants with the crime - Conviction of appellants
accordingly set aside - Evidence - Witness - Unnatural
conduct.

    Evidence - Hostile witness - Held: Evidence of a hostile     E
witness not to be rejected in toto.

     Criminal Trial - Non-examination of Investigating Officer
(10) - Effect.

    The prosecution case is that PWs-1 and 2 and the             F
deceased 'B' had travelled in a rickshaw, went to a tailor's
shop, and then entered inside a Hotel when the accused-
appellants and the other accused came there and started
assaulting 'B' with swords, iron bars and sticks which
subsequently led to his death.                                   G

    PW1, the informant, turned hostile The trial court
convicted the appellants under Sections 302, 147, 148,
149 and 452 IPC and sentenced them to life
imprisonment. On appeal, the High Court affirmed the
                         1173                                    H
    1174   SUPREME COURT REPORTS              [2012] 9 S.C.R.

A conviction and the sentence of the appellants. T:ie
  conviction was primarily based on the sole testimony of
  PW2.
       In the instant appeal, the appellants challenged their
  conviction inter alia on grounds that when PW1, the
8
  informant had turned hostile, the FIR could not have been
  relied upon as a piece of substantial evidence
  corroborating the testimony of PW-2, the alleged eye-
  witness; that the testimony of PW-2 was totally unreliable
  because of his unnatural conduct and further that the
C Investigating Officer had not been examined as a
  consequence of which prejudice was caused to the
  appellants.
       Allowing the appeal, the Court
D
      HELD: 1. It is settled in law that the evidence of a
  hostile witness is not to be rejected in toto. 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
E dependable on a careful scrutiny thereof. 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. [Paras 16, 17] [1183-G; 1184-A-
  B; 1185-D]
F
      Rameshbhai Mohanbhai Kofi and Others v. State of
  Gujarat (2011) 11 SCC 111: 2010 (14) SCR 1; Bhajju alias
  Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327
  and Sidhartha Vashisht alias Manu Sharma v. State (NCT
G of Delhi) (2010) 6 sec 1: 2010 (4) SCR 103 - relied on.
      Bhagwan Singh v. State of Haryana (1976) 1 SCC 389:
  1976 (2) SCR 921; Rabindra Kumar Dey v. State of Orissa
  (1976) 4 SCC 233: 1977 (1) SCR 439; Syad Akbar v. State
  of Karnataka (1980) 1 SCC 30; Khujji v. State of M.P. (1991)
H 3 SCC 627: 1991 (3) SCR 1; State of UP. v. Ramesh Prasad
        LAHU KAMLAKAR PATIL v. STATE OF               1175
                MAHARASHTRA

Misra (1996) 10 SCC 360: 1996 (4) Suppl. SCR 631; Ba/u        A
Sonba Shinde v. State of Maharashtra (2002) 7 SCC 543:
2002 (2) Suppl. SCR 135; Gagan Kanojia v. State of Punjab
(2006) 13 SCC 516; Radha Mohan Singh v. State of U.P.
(2006) 2 SCC 450: 2006 (1) SCR 519; Sarvesh Narain
Shukla v. Daroga Singh (2007) 13 SCC 360: 2007 (11) SCR       B
300 and Subbu Singh v. State (2009) 6 SCC 462: 2009 (7 )
SCR 383 - referred to.

     2. PW 1 has admitted his signature in the FIR but has
given the excuse that it was taken on a blank paper. The
same could have been clarified by the Investigating           C
Officer, but for some reason, the Investigating Officer has
not been examined by the prosecution. Neither the trial
judge nor the High Court has delved into the issue of non-
examination of the Investigating Officer, for which no
explanation has been offered. In certain circumstances        D
the examination of Investigating Officer becomes vital.
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, especially
when the informant has stated that the signature was          E
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 CrPC. [Para 19] [1185-F-G; 1186•8-E]
                                                              F
     Arvind Singh v. State of Bihar (2001) 6 SCC 407: 2001
(3) SCR 218; Rattan/al v. State of Jammu and Kashmir
(2007) 13 SCC 18: 2007 (4) SCR 1029; Ravishwar Manjhi
and others v. State of Jharkhand (2008) 16 SCC 561: 2008
(17) SCR 420 - relied on.
                                                              G
     Behari Prasad v. State of Bihar (1996) 2 SCC 317: 1996
(1) SCR 262; Bahadur Naik v. State of Bihar (2000) 9 SCC
153 - referred to.

    3. PW1 has supported the prosecution story but to         H
    1176    SUPREME COURT REPORTS             [2012] 9 S.C.R.


A the point of assault and thereafter he has resiled from his
  version. Even if to such extent his testimony is accepted,
  it only goes to the extent of proving that PWs-1 and 2 and
  the deceased 'B' had travelled in a rickshaw, went to the
  tailor's shop, entered inside the Milan Hotel and some
B 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. He had stated that he
  had run away from the scene of assault and, therefore,
  his testimony does not, in any way, establish the
C involvement of the appellants in crime. [Para 20] (1186-
  F-G; 1187-A]
         4.1. As is evincible from the deposition of PW2, on
    seeing the assault he got scared, ran away from the hotel
    and hid himself behind the pipes till early morning. He
D   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
E   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 'B', who had
    accompanied him, was dead. In the statement under
F   Section 161 CrPC, 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 'B' was dead was also not mentioned. One thing is
    clear from his testimony that seeing the incident, he was
G   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
H   stated anywhere that he was so scared that even after he
       LAHU KAMLAKAR PATIL v. STATE OF                1177
               MAHARASHTRA

reached home, he did not go to the police station which       A
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       B
he arrived from Pune and on being informed by his wife
that his companion 'B' had died, he went to the police
station. Though certain witnesses in certain
circumstances may be frightened and behave in a
different manner and due to that, they may make               c
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
                                                              0
of his version doubtful. His evidence cannot be treated
as so trustworthy and unimpeachable to record a
conviction against the appellants. [Para 27] [1189-E-H;
1190-A-F]

     4.2. Witnesses to certain crimes may run away from       E
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        F
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     G
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        H
    1178   SUPREME COURT REPORTS                [2012] 9 S.C.R.

A discarded .. [Para 26) (1189-B-E]
       4.3. The trial court as well as the High Court 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
B the appellants. In absence of any kind of clinching
  evidence to connect the appellants with the crime, it
  would not be appropriate to sustain the conviction. The
  judgment of conviction and sentence recorded by the
  Sessions Judge and affirmed by the High Court is set
C aside. [Para 27, 28] (1190-F-H]
         Mohd. Khalid v. State of WB. (2002) 7 SCC 334: 2002
    (2) Suppl. SCR 31; Gopal Singh and others v. State of
    Madhya Pradesh (2010) 6 SCC 407: 2010 (6) SCR 1062 and
    Ali/ Mol/ah and another v. State of WB. (1996) 5 SCC 369:
D
    1996 (3) Suppl. SCR 666 - relied on.
                         Case Law Reference:
        2010 (14) SCR 1           relied on            Para 16
E       1976 (2) SCR 921          referred to          Para 16
        1977 (1) SCR 439          referred to          Para 16
        (1980) 1 sec 30           referred to          Para 16
        1991 (3) SCR 1            referred to          Para 16

F       1996 (4) Suppl. SCR 631 referred to            Para 17
        2002 (2) Suppl. SCR 135 referred to            Para 17
        (2006) 13 sec 516         referred to          Para 17
        2006 (1) SCR 519          referred to          Para 17

G       2007 (11) SCR 300         referred to          Para 17
        2009 (7) SCR 383          referred to          Para 17
        (2012) 4 sec 321          relied on            Para 17
        2010 (4) SCR 103          relied on            Para 18
H       1996 (1) SCR 262          referred to          Para 19
         LAHU KAMLAKAR PATIL v. STATE OF                    1179
                 MAHARASHTRA

    (2000) 9 sec 153              referred to           Para 19      A
    2001 (3) SCR 218              relied on             Para 20
    2007 (4) SCR 1029             relied on             Para 20
    2008 (17) SCR 420             relied on             Para 20
    2002 (2) Suppl. SCR 31        relied on             Para 23      B
    2010 (6) SCR 1062             relied on             Para 24
     1996 (3) Suppl. SCR 666 relied on                  Para 25
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 114 of 2008.
                                                                     c
      From the Judgment & Order dated 08.02.2007 of the High
Court of Judicature at Bombay in Criminal Appeal No. 790 of
1989.
      Sushil Karanjkar, K.N. Rai for the Appellants.
     Sanjay V. Kharde, Sachin J. Patil, Asha Gopalan Nair for        o
the Respondent.
     The Judgment of the Court was delivered by
      DIPAK MISRA, J. 1. 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           E
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            F
452 of the Indian Penal Code, 1860 (for short "the l.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      G
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                     H
    1180     SUPREME COURT REPORTS                   [2012] 9 S.C.R.

A 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
8 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
C 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
D 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.l.R. and handed over the
  stitched clothes of the deceased which were in the rickshaw
E to the police. On the basis of the F.l.R., a case under Sections
  147, 148, 149, 302 and 452 of the l.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
F 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
G 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
H nine witnesses; PW-1, Chandrakant Phunde, the informant,
         LAHU KAMLAKAR PATIL v. STATE OF                     1181
          MAHARASHTRA [DIPAK MISRA, J.]

PW-2, Janardan Bhonkar, who was an eye-witness to the                A
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-      B
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.                                      c
     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         D
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           E
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           F
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       G
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.l.R. could
not have been relied upon as a piece of substantial evidence         H
    1182    SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A 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
B 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 consequPrnce 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
c 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.
D        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
E submission that the evidence of PW-1, Chandrakant Phunde,
  clearly proves the first part of the incident and what h·e 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
F 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
G 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.
H        13. PW-1, the informant, has stated in the examination-in-
          LAHU KAMLAKAR PATIL v. STATE OF                     1183
           MAHARASHTRA [DIPAK MISRA, J.]

chief that the deceased had taken PW-2, Janardan Bhonkar,              A
to the tailor's shop and, eventually, took Shau 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.          B
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.l.R. and has deposed that he          c
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             o
version in the examination-in-chief to the extent that lie 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         E
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              F
the informant having been declared hostile, the whole case of
the prosecution story rc:ollapses 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.                              G
     16. It is settled in law that the evidence of a hostile witness
is not to be rejected in toto. In Rameshbhai Mohanbhai Kofi
and Others v. State of Gujarat1, reiterating the principle, this
Court has stated thus:-
1.   c2011 > 11 sec 111.                                               H




                                                      •
    1184       SUPREME COURT REPORTS                [2012] 9 S.C.R.


A         "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
B         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 Orissa3, Syad
          Akbar v. State of Kamataka 4 and Khujji v. State of M. P. 5)
c         17. In State of UP. 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
D         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 ."
E
          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

    2.   (1976) 1 sec 389.
F
    3.   (1976) 4 sec 233.
    4.   (1980) 1 sec 30.
    5.   (1991) 3 sec 627.
    6.   (1996) 10 sec 360.
    7.   (2002) 1 sec 543.
G
    8.   (2006) 13 sec 516.
    9.   (2006) 2 sec 450.
    10. (2007) 13 sec 360.
    11. (2009) 6 sec 462.
H 12. (2012) 4 sec 327.



                   •
          LAHU KAMLAKAR PATIL v. STATE OF                 1185
           MAHARASHTRA [DIPAK MISRA, J.]

thus: -                                                           A
     "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 B
     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, C
     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."                                    D
                                            [Emphasis added]
     18. In the case of Sidhartha Vashisht alias Manu Sharma
v. State (NCT of Delhi}1 3, 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    E
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.l.R. but has given the excuse that it was taken F
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 Behan· Prasad v. G
State of Bihar14, this Col!rt 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
13. (2010) 6 sec 1.
14. (1996) 2 sec 317.
                                                                  H
    1186     SUPREME COURT REPORTS                [2012] 9 S.C.R.


A 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
B 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
c 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, Rattan/a/ v. State
  of Jammu and Kashmir17 and Ravishwar Manjhi and others
0
   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
E
   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
F
   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
G assaulting the deceased. PW-1 had not named any assailant
   in the court to support the version of the FIR. On a scanning of
    15. (2000) 9 sec 153.
    16. (2001) 6 sec 407 ..
    17. (2007) 13 sec 18.
H   18. (2008) 16 sec 561.
         LAHU KAMLAKAR PATIL v. STATE OF                   1187
          MAHARASHTRA [DIPAK MISRA, J.]
the evidence, we find that he had stated that he had run away       A
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           B
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         C
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
                                                                    0
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        E
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,    F
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       G
for such delay and, hence, his testimony should be discredited.
In Mohd. Khalid v. State of WB. 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
19. (2002) 1 sec 334.                                               H
    1188     SUPREME COURT REPORTS                [2012} 9 S.C.R.


A 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
8 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
C 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
D contrary to the normal human conduct. Thus, emphasis was laid
  on the circumstance and the conduct.
        24. In Gopa/ 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
E 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
F for his own safety.
        25. In Ali/ Mollah and another v. State of W. B. 21 , an
  eyewitness, wh9 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
G 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
  20. (2010i 6 sec 407.
H 21. (1996) 5 sec 369.
        LAHU KAMLAKAR PATIL v. STATE OF                 1189
         MAHARASHTRA [DIPAK MISRA, J.]

when the incident occurred. He gave the information to the A
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 B
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 C
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
                                                               o
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 E
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 F
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 G
Bhau, who had accompanied him, was dead. It is interesting
to note that in the statement und!'lr 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 H
    1190     SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A 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
B 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
c 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 harl
  died, he went to the police station. We are not oblivious of the
0 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
E 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,
F 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.
G       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.
H B.B.B.                                              Appeal allowed.