LexLAHU KAMLAKAR PATIL AND ANR. versus STATE OF MAHARASHTRA
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[2012] 9 S.C.R. 1173 LAHU KAMLAKAR PATIL AND ANR. v. STATE OF MAHARASHTRA (Criminal Appeal No. 114 of 2008) DECEMBER 14, 2012 [K. S. RADHAKRISHNAN AND DIPAK MISRA, JJ.] A B 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 wa
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