SUPREME COURT OF INDIA

Before:- U.C. Banerjee and B.N. Agrawal, JJ.

Criminal Appeal No. 892 of 2000. D/d. 16.7.2002.

Sahiya - Appellant

Versus

State of U.P. - Respondent

Indian Penal Code, 1860, Section 302 read with Section 34 Evidence Act, 1872, Section 3 - Murder - Reliance placed on the evidence of PW-2 who also received injuries by knife for which he had to be in hospital for 3 days - Instead of coming back home - He went to Himachal for 12/13 days - Statement under Section 161 Criminal Procedure Code, 1973 recorded after 15 days - He did not state who was assaulted by whom - Held, that the conduct is contra human nature and behaviour - Evidence of PW-2 not worthy of reliance - High Court in error in accepting the evidence of PW-2 - Accused acquitted - Impugned order is set aside - Appeal accepted.

[Paras 2 to 4 and 5]

ORDER

This appeal, directed against the judgment and order of the High Court at Allahabad, pertains to the judgment and order dated 17th October, 1980 passed by the sessions judge, Dehradun. The High Court upon perusal of the evidence on record and other relevant material came to the conclusion that the prosecution has succeeded in proving its case beyond doubt against accused Hira Singh, Sahiya and Hariman. The High Court further went on to record that Hira Singh and Sahiya had caused grievous injuries on the person of the deceased Deviya as a result of which Deviya succumbed to his injuries on the place of occurrence itself and accordingly, the High Court passed an order for conviction under Section 302/34 Indian Penal Code and sentenced them to undergo RI for life. Hariman the other accused, however, was convicted under Section 324 Indian Penal Code and he has already served out the sentence.

2. Incidentally, Hira Singh has since died and the appeal thus stands initiated by the accused Sahiya only. The High Court while dealing with the matter did place strong reliance on the evidence as tendered by PW2. It is this particular witness who happened to be married with two children. If his evidence to the effect that he himself (PW2) suffered a knife injury for which he had to be carried to the hospital and had to stay there for three days and if this portion of his evidence is to be accepted then the next part of his evidence does not seem to go well with the portion above. A family man, having wife and children had to be carried to the hospital on account of some injury, would in the normal circumstances come back home with utmost expedition rather than going to Himachal for 12/13 days after the discharge from the hospital. The conduct stands out totally contra human nature and behaviour. The situation, however, is not so simple as it looks by reason of the fact that the 161 statement stands recorded, in accordance with the usual practice, by the village Patwari after 15 days and the whole story of staying away from the home for 12/13 days, obviously introduced by the witness (PW2) to match the timings-unfortunately, the High Court has lost sight of the same and came to place reliance on the evidence of PW2 as unimpeachable. The factum of statement under Section 161 Criminal Procedure Code, 1973 being made or obtained after more than 15 days bears ample testimony to the non-credit worthiness of the witness, but unfortunately the High Court had relied on this piece of evidence so tendered by PW2. The High Court, thus, has fallen into a manifest error resulting in total miscarriage of justice and ought to be corrected by this Court.

3. Apart therefrom PW2 has made a definite statement to the effect that "I could not see as to what particular accused caused beating with Debia..... I did not see the burning massala of the accused. I do not know as to whether the accused persons took away their massala from the place of the marpit or they left them there...... I could not see as to in which direction those people managed to fled away." The evidence of PW2 thus stands out not only unacceptable but totally unreliable by reason of the fact that he himself admitted that he could not and did not see as to who assalted whom and what happened thereafter.

4. In our High Court's judgment by reason of acceptance of the evidence of PW2, stands vitiated and cannot have our concurrence. Having regard to the law as settled for decades now, acceptability of such an evidence cannot possibly be effected so as to subserve the ends of justice.

5. The appeal, thus succeeds and stands allowed and the order impugned stands set aside and quashed. The appellant being in custody be released forthwith if not wanted in any other matter.

Appeal allowed.