STATE OF RAJASTHANversusSMT. KALKI & ANR.

    504

A                              STATE OF RAJASTHAN
                                             v.
                                 SMT. KALKI & ANR.

                                       April 15, 1981

B         (0. CHINNAPPA REDDY, A.P. SEN AND BA~ARUL !SLAM, JJ.J

          Co11stit11tio11 of India, Article J36-S11pre111e Co11rt will interfere in any matter
    to prel'ent the miscarriage of justice.

          Material discrepancies in the evidence, explained.

          Words and phrases-Whether the word "related"' means "interested"'.
c
           Respondent Kalki alias Kali and her husband Amara (along with four other
    co-accused) were charged, convicted under section 302 I.P.C. and sentenced to
    life imprisonment. While Kalki was also convicted and sentenced under section
    148 I.P.C. for two years' rigorous fmprisonment, the other five accussed were
    convicted and sentenced under section 147 I.P.C. for rigorous imprisonment for
    a period of one and a half years. In appeal the High Court of Rajasthan
D   acquitted  all  of them on the grounds (i) that P.W. I, the widow of the deceased
    "is ........ a highly interested witness, inasmuch as, she is the wife of the deceased
    and there was an enmity between the deceased and the accused on account of the
    dispute about the agricultural land" and (ii) "that there are material discrepancies
     in her statement".

         This Court granted special leave to appeal only against Kalki and her
E   husband and refused it as against the four.

           Dismissing the appeal, the Court

          HELD : 1. It is true that in an appeal under Article 136 of the Constitu-
    tion the Supreme Court normally does not interfere with findings of facts arrived
    at by the High Court. But when it appears that the findings of facts arrived at
F   are bordering on perversity and have resulted in miscarriage of justice, the
    Court will not decline to quash such findings to prevent miscarriage of justice.
                                                                             [507 F-G]

         2. Material discrepancies are those which are not normal, and not expected
    of a normal person. In the depositions of witnesses there are always some
G   normal discrepancies however honest and truthful the witnesses may be. These
    discrepancies are due to normal errors of observation, normal errors of memory
    due to lapse of time, due to mental disposition such as shock and horror at the
    time of the occurrence, and the like. There are no material discrepancies in
    the evidence of P.W. I so as to reject the evidence in its entirety. [507 D-E]

H          3. "Related" is not equivalent to "interested". A witness may be called
     "interested" only when he or she derives some benefit from the result of a
                    RAJASTHAN v. KALK! (Baharul Islam J.)                         505

    litigation; in the decree in a civil case, or in seeing an accused person punished.   A
    A witness who is a natural one and is the only possible eye witness in the
    circumstances of a case cannot be said to be "interested". In the instant case,
    P.W. 1 had no interest in protecting the real culprit, and falsely implicating the
    respondents. (507 A-BJ

         CRIMINAL APPELLATE JuRISDICTION : Crirpinai Appeal No. 543
    of 1976.                             ·                                                B

           Appeal by special leave from the judgment and order dated
    the llth May 1975 of the Rajasthan High Court in D.B. Criminal Jail
    Appeal Nos. 277, 413 to 416 and 918 of 1971.
                                                                                          c
           Badri Das Sharma for the Appellant.

           Dalveer Bhandari for the' Respondent.

           The Judgment of the Court was delivered by

          BAHARUL IsLAM, J. This appeal by special leave on behalf of
    the State of Rajasthan is directed against the judgment of the Rajas-                 D
    than High Court acquitting the two respondents, Shrimati Kalki
    alias Kali and her husband, 'Amara (alongwith four other co·accused).
    Respondent Kalki was convicted under Section 302 and Section 148
    of the Penal Code and sentenced to imprisonment for life and for
    rigorous imprisonment for two years, respectively. The five other
    accused persons including respondent, Amara, were convicted under                     E
(   Section 302 read with Section 149 and under Section 14 7 of the
    Penal Code, and each of them was sentenced to imprisoment for life
    and to one and a half years rigorous imprisonment respectively.

          2. The material facts of the prosecution case were that there
    was a land dispute between Nimba (P.W.6) father of the deceased,                      F
    Poona, on the one hand, and respondent Amara and the members of
    his family, on the other. On July 17, 1970 at about sunset the
    accused persons of whom respondent Kalki was armed with an axe
    and respondent, Amara with a dharia, came to the house of the
    deceased. At th11t time the deceased was inside his hut with hls wife                 G
    Mooli (P.W.l). Amara called Poona. Poona came out followed by
    his wife Mooli, when he was knocked down by Amara and Rama
    whereupon Kalki gave him blow with the axe on the neck. Poona
    met with instantaneous death. Mooli (P.W.l) raised an outcry when
    Geli, mother of the deceased (P.W.2) who had been at some distance                    H
    from the hut came running to the place of occurrence and saw the
    assailants leaving the place.
    506                SUPREME COURT REPORTS               [1981] 3 S.C.R.

A         3. Nimba lodged a report at the police station at Nana.
    Police registered a case. In due course the case was sent to, and
    tried by, the Session Judge who convicted and sentenced the six
    accused persons including the two respondents as stated above.

          4. This Court granted special leave to appeal only against the
B   two respondents and refused it as against the other four. The
    question before us is whether the two respondents or any of them
    caused the death of Poona. There is no dispute that Poona met a
    homicidal death.

          5. The High Court has set aside the Order of conviction and
c   sentence passed by the Session Judge on the grounds (1) that P.W.I
    the widow of the deceased "is ... a highly interested witness, in as
    much as, she is the wife of the deceased and there was an enmity
    between the deceased and the accused on account of the dispute
    about the agricultural land", and (2) "that there are material dis·
    crepancies in her statement".
D
          We have been led through the evidence of P. W. l, the only eye
    witness in the case, of P.W.2, Geli, who says that she saw the respon·
    dents leaving the place of occurrence with the weapons in their hands,
    and of P.W.5 the Medical Officer, who held the Post-Mortem exami·
    nation on the deceased. His evidence fully supports the evidence
E                                                         a
    of P.W.l, who deposed that respondent Kalki gave blow on the
    neck of the deceased with an axe. P. W. 5 found one incised wound
    measuring 5" x 2" x 4" on the lateral side of the left side of neck.
    On a perusal of the evidence of these withesses, we do not have
    the least doubt in our mind that it was respondent Kalki who gave
F   an axe blow on the neck of the deceased and that respondent
    Amara came along with his wife with a dharia with the common·
    intention of causing the death of Poona. In fact it was he who
    called out Poona from inside the hut, and felled down and facilitated
    the murder of Poona by his wife, Kalki.

G         5. As mentioned above the High Court has declined to rely on
    the evidence of P. W.1 on two grounds : (!) she was a "highly in-
    terested" witness because she "is the wife of the deceased", and (2)
    there were discrepancies in her evidence. With respect, in our
    opinion, both the grounds are invalid. For, in the circumstances of
    the case, she was the only and most natural witness; she was the only
H   person present in the hut with the deceased at the time of the occur-
    rence, and the only person who saw the occurrence. True, it is she is
    the wife of the deceased; but she cannot be called an 'interested'
             RAJASTHAN v. KALK! ( Baharul I slam J)                507

witness. She is related to the deceased. 'Related' is not equivalent        A
to 'interested'. A witness may be called 'interested' only when he
or she derives some benefit from the result of a litigation; in the
decree in a civil case, or in seeing an accused person punished. A
witness who is a natural one and is the only possible eye witness in
the circumstances of a case cannot be said to be 'interested'. In the
instant case P. W.l had no interest in protecting the real culprit, and     B
falsely implicating the respondents.

      6. The second ground on which the High Court refused to
place reliar;ce on the -evidence of P. W. 1 was that there were
"material discrepancies". As indicated above we have perused the
evidence of P.W.J. We have not found any "material discrepancies"           c
in her evidence. The discrepancies referred to by the High Court
are, in our opinion, minor, insignificant, natural and not 'material'.
The discrepancies are with regard to as to which accused "pressed
the deceased and at which part of the body to the ground and sat on
which part of the body; with regard to whether the respondent Kalki
gave the axe blow to the deceased while the latter was standing or          D
lying on the ground, and whether the blow was given from the side
 of the head or from the side of the legs. In the depositions of
 witnesses there are always some normal discrepancies however honest
 and truthful they may be. These discrepancies are due to normal
 errors of observation, normal errors of memory due to lapse of time,
 due to mental disposition such as shock and horror at the time of          E
 the occurrence, and the like. Material discrepancies are those which
 are not normal, and not expected of a normal person. As indicated
 above we have n0t found any material discrepancies in the evidence
 of the P. W. I.

       7. Learned counsel for the respondent submitted that the             F
 appeal involved only appreciation of evidenc~ and this Court may
 not interfere with the findings of facts resulting from appreciation of
 evidence. It is true that in an appeal under Article 136 of the Con-
 stitution this Court normally does not interfere with findings of facts
 arrived at by the High Court. But when it appears that the findings
 of facts arrived at are bordering on perversity and result in miscar-      G
  riage of justice, this Court will not decline to quash such findings to
  prevent the miscarriage of justice.

        8. In our opinion the guilt of the two respondents has been
  established by the prosecution beyond reasonabie doubt and their
                                                                            H
  acquittal resulted in grave miscarriage of justice.
    508                 SUPREME COURT REPORTS             (1981] 3 S.C.R.

A         In the result we set aside the order of acquittal passed by the
    learned High Court and convict respondent Kalki alias Kali under
    section 302 of the Penal Code and respondent, Amara, under Section
    302/34 of the Penal Code, and sentence each of them to suffer im-
    prisonment for life.

B           The appeal is allowed. The respondents are said to be on
    bail.    They shall surrender forthwith to serve out their sentences.


    V.D.K.                                                Appeal allowed.