LexSWAMI PRASAD versus STATE OF MADHYA PRADESH
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A SWAMI PRASAD v. -~ STA TE OF MAD HY A PRADESH MARCH 8, 2007 B (S.B. SINHA AND MARKANDEY KA TJU, JJ.] Penal Code, 1860-s. 302-Murder-Sole eye-witness-Three i c prosecution witnesses to the incident turned hostile-Accused, after the incident, himself going to the police station with the weapon of offence and blood stained clothes and confessing that the deceased had been killed by that weapon-Evidence of the hostile witnesses disbelieved by trial court and accused was acquitted-High Court convicting the accused-On appeal, held: Facts and circumstances of the case lead to the conclusion that the D accused had killed the deceased-Evidence of sole eye-witness as well as the hostile witnesses are reliable-In a given silllation court may rely upon the statements of hostile witnesses-Witness-Hostile witness. Appeal-Appeal against acquittal-Scope of-Held: Though. when two '1'- views are possible, order of acquittal should not be interfered with-But, if E the appellate court after analyzing the evidence, finds overwhelming evidence pointing to the guilt of the accused, order of acquittal can be interfered with. Appellant was charged for having caused death of one person. According to the prosecution, appellant-accused was the son of PW-3. PW-4 and the F deceased were his step-brothers and PW-6 was his step-sister. PWs-1, 2, 3 and the appellant were talking about partition of the property of PW-3. Appellant wanted halfshare of the property while PW-3 was ready to give only one-third share to him. At this, appellant, with an axe went to the deceased -" ..... (who was taking bath) and assaulted him by giving two to three blows with the axe. On his threat, PWs I, 2 and 3 entered their respective houses. PW-6, G hearing the alarm went to the deceased. She also alarmed PW-4 not to come out of the house. Appellant with his axe went to the Police Station and made a statement to the Officer-in-charge that the deceased had been killed by that axe. On the basis thereof Officer-in-charge went to the spot and recorded > .... _ statement of PW-I. On the basis of his statement FIR was recorded. H 660 SW AMI PRASAD v. ST ATE OF MAD HY A PRADESH 661 At the trial, PWs 1, 2 and 3 turned hostile. Evidence of PW6 was not A t disbelieved on the premise that she had made improvement upon her statement. The appellant was acquitted. On appeal, High Court, after examining the matter, convicted the appellant. In appeal to this Court, appellant contended that in view of the facts of the case, particularly the fact that Trial Court as well as High Court did not B rely upon the testimony of the sole eye-witness (PW-6), High Court had committed error in reversing the judgment of acquittal. " Dismissing the appeal, the Court HELD: 1.1. There are several circumstances which lead to the c conclusion that the appellant alone is guilty of commission of murder of the deceased. [Para 17] (666-G] 1.2. From the evidences on records, apart from PW-6, who is an eye- witness, the following facts must be held to have been sufficiently proved. Appellant had demanded 112 share in the property from his father; and having D been told that the property would be divided equally amongst the three sons, he became angry; PW-4 while in his house heard a cry that the deceased had been killed by the appellant. Appellant was seen at the place of occurrence with an axe. He went to the Police Station with the axe and blood-stained clothes. (Para 24) (668-D-F] E 1.3. It is true that three prosecution witnesses were declared hostile, but the same by itself, would 11ot lead to the conclusion that the High Court committed any error in passing the impugned judgment. It is well settled that a Court in a given situation even may rely on the statements of the witnesses, who had been permitted to be cross-examined by the prosecution. F (Para 15] (666-C] A. ,; ' 1.4. Although PW 3 resiled from his statement that he had seen the appellant assaulting the deceased, but he had proved the other part of his earlier statement, namely, the demand of 112 share in the property by the appellant and on his refusal to accept the said demand, the appellant went towards the well with an a~e in his hand. The dispute in regard to the share G in the property has been proved by all the prosecution witnesses, namely, PW- ~,.. ~ 1, PW-2 and PW-3. (Paras 17 and 20] (666-G-H; 667-C] 1.5. It may be true that the evidence of PW-6 had n
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