(M.M. Sundresh and J.B. Pardiwala, JJ.)
Criminal Appeal No. 705 of 2011, decided on August 23, 2023
Sk. Bilal __________________________________________ Appellant;
v.
State of Maharashtra _____________________________ Respondent.
With
Criminal Appeal No. 993 of 2011
Criminal Appeal No. 705 of 2011 and Criminal Appeal No. 993 of 2011
The Order of the court was delivered by
Order
1. The appellants stood charged and convicted under Sections 302 and 120B, while being acquitted under Sections 147, 148, 149 and 279 of the Indian Penal Code (for short ‘IPC’) by the Additional Sessions Judge-II, Beed in Sessions Case No. 75/2007 to undergo life imprisonment, as confirmed in Criminal Appeal Nos. 567/2008 and 636/2008 by the High Court of Bombay, Bench at Aurangabad.
2. A case was registered against 7 accused persons, in which the appellants have been arrayed as A3 and A1 (subsequently arrayed as A2 in the trial Court’s judgment) for having committed the offence of murdering the deceased, along with 5 other accused on the night of 22.05.2007 by dashing the bike of the deceased with a car and, thereafter, attacking him with weapons. The accused used a car and two bikes for the aforesaid purpose. A6 and A7 were declared as absconding accused and, therefore, the case was split up. A4 and A5 were acquitted, while the appellants along with A1 were convicted. To be noted, by a subsequent trial conducted qua the absconding accused, the trial Court on the same set of evidence found it appropriate to acquit them, which decision has attained finality.
BRIEF FACTS:
3. While on a patrol, PW28 found the deceased bleeding. On enquiry, it was informed by the watchman that he was hit by a speeding car. PW10, who incidentally witnessed the speeding car also found the deceased in a pool of blood, who thereafter informed PW9, brother of the deceased. They also came to the place of occurrence and took the deceased to the hospital.
4. PW14, being the only eye-witness to the occurrence, saw the accused running over the vehicle of the deceased with their car and thereafter attacking him. He, however, did not make any attempt to inform the police, but went home and narrated the incident to the members of his family. Thereafter, he went to the hospital and passed on the information to PW9, by which time the police were also present. The statement of this witness was recorded on 24.05.2007, though the first information report (for short ‘FIR’) was recorded on the previous day and, that too, without disclosing the source of information. The statement also reached the Court only on 29.05.2007, as was the case of Exh.56, the FIR. The other witnesses merely speak about the subsequent events including recovery.
5. The investigation started with the inquest report, which was prepared even before the Exh.56 (FIR) and a case was registered for the offence punishable under Section 302 IPC though there was no occasion to do so.
6. The trial Court after taking into consideration all the discrepancies in the deposition of PW14, the only eye-witness, affecting his credibility nonetheless proceeded to rely upon it for rendering its conviction. The High Court in the impugned orders fell in line with the trial Court.
7. The learned counsel appearing for the appellants submitted that, on the very set of evidence, the very same trial Court rendered acquittal against the co-accused. There is no distinguishing factor to differentiate the case against the appellants. It is strange as to how the inquest report indicates murder when the FIR was registered subsequently. There is no evidence for the alleged surrender of the accused persons, a fact acknowledged by PW26, who could not even identify A3. The FIR authored at the instance of PW9 does not mention any reference to PW14, while a mention was made of PW10. The conduct of PW14 is highly doubtful and riddled with numerous material contradictions. Even PW29, the officer who recorded Exh.56, admits the fact that there is no adequate explanation to the delayed receipt of it by the jurisdictional Magistrate. He also accepts that the crime number and the date were recorded with dark ink. These aspects have not been taken note of and, therefore, the appeals are liable to be allowed.
8. The learned counsel appearing for the State submitted that both the Courts below have correctly accepted the evidence of PW14. The evidence of the said witness is corroborated by the depositions of others. The witnesses speak about the plying of the vehicle used by the deceased after the occurrence. The scientific evidence also lends credit to the story of the prosecution, as rightly taken note of and approved by the High Court.
9. The one and the only eye-witness in this case is PW14. The occurrence happened at mid-night. It is rather strange that PW14 while informing the members of his family and, thereafter, made a conscious effort to see the body of the deceased in the hospital, has not informed the police who were very much present. This evidence is totally unnatural. We also find that his statement was recorded only on 24.05.2007, but received by the Court on 29.05.2007. Despite doubting the credit-worthiness of this witness, the trial Court brushed it aside in rendering the conviction. We may point out that PW9, who made the complaint, made a reference to PW10, but not PW14. In his complaint, he has stated that he was informed by others, despite knowing PW14 very well. If, at the time of the information given to PW9 by PW14 the police were present, there is no reason as to why he has not been examined at the earliest.
10. Exh.56 has reached the Court only on 29.05.2007 despite it having been registered in the early morning of 23.05.2007. PW29 tactically acknowledged the aforesaid fact while deposing further that the distance was only half a kilometer. It is his further statement that the crime number and the date have been entered in dark ink, therefore, the very genesis of the FIR is highly doubtful and, so also, is the evidence of PW14, the star witness. We have also perused the subsequent judgment given by the same trial Court wherein a benefit of doubt was extended to the co-accused who were absconding earlier. The evidence of PW14 was correctly doubted and rejected.
11. In Shivasharanappa v. State of Karnataka (2013) 5 SCC 705, this Court relying on the following judgments observed as follows:
“19. In Gopal Singh v. State of M.P. [(2010) 6 SCC 407 : (2010) 3 SCC (Cri) 150] this Court did not agree with the High Court which had accepted the statement of an alleged eyewitness as his conduct was unnatural and while so holding, it observed as follows: (SCC p. 413, para 25)
“25. We also find that the High Court has accepted the statement of Feran Singh, PW 5 as the eyewitness of the incident 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 specious and unacceptable plea that he feared for his own safety.”
20. In Rana Partap v. State of Haryana [(1983) 3 SCC 327 : 1983 SCC (Cri) 601], while dealing with the behaviour of the witnesses, this Court has opined thus: (SCC p. 330, para 6)
“6. … Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.”
21. In State of H.P. v. Mast Ram [(2004) 8 SCC 660 : (2010) 1 SCC (Cri) 1165] it has been stated that there is no set rule that one must react in a particular way, for the natural reaction of man is unpredictable. Everyone reacts in his own way and, hence, natural human behaviour is difficult to prove by credible evidence. It has to be appreciated in the context of given facts and circumstances of the case. Similar view has been reiterated in Lahu Kamlakar Patil v. State of Maharashtra [(2013) 6 SCC 417 : (2012) 12 Scale 710].
22. Thus, the behaviour of the witnesses or their reactions would differ from situation to situation and individual to individual. Expectation of uniformity in the reaction of witnesses would be unrealistic but the court cannot be oblivious of the fact that even taking into account the unpredictability of human conduct and lack of uniformity in human reaction, whether in the circumstances of the case, the behaviour is acceptably natural allowing the variations. If the behaviour is absolutely unnatural, the testimony of the witness may not deserve credence and acceptance.”
12. The Court also considered the effect of the usage of mobile phones while coming to its conclusion that they do not point to the commission of the offence. We are not able to find any distinguishable factor between A6 and A7 on the one hand and the appellants on the other. Both the Courts below have not considered the evidence available on record in its correct perspective. We also find that A3 was not even identified by the police officer. There was no recording of surrender.
13. In view of the foregoing discussion, we are inclined to extend the benefit of doubt in favour of the appellants. The impugned orders passed by the High Court in Criminal Appeal Nos. 567/2008 and 636/2008 are accordingly set aside and the appeals are allowed. The appellants are directed to be released forthwith, until and unless they are required in any other case.
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