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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: SMT. KALKI & ANR.

DATE OF JUDGMENT15/04/1981

BENCH: ISLAM, BAHARUL (J) BENCH: ISLAM, BAHARUL (J) REDDY, O. CHINNAPPA (J) SEN, A.P. (J)

CITATION:  1981 SCR  (3) 504        1981 SCC  (2) 752  1981 SCALE  (1)645

ACT:      Constitution of  India, Article  136-Supreme Court will interfere in  any  matter  to  prevent  the  miscarriage  of justice.      Material discrepancies in the evidence, explained.      Words and  phrases-Whether  the  word  "related"  means "interested".

HEADNOTE:      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 imprisonment, the other five accused  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 acquitted all of them on the grounds (i) that P.W. 1, 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 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  Constitution 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  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  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

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time of  the occurrence, and the like. There are no material discrepancies in  the evidence of P.W. 1 so as to reject the evidence in its entirety. [507 D-E]      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 505 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. 1  had no  interest in protecting the real culprit, and falsely implicating the respondents. [507 A-B]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 543 of 1976.      Appeal by  special leave  from the  judgment and  order dated the  6th May  1975 of the Rajasthan High Court in D.B. Criminal Jail Appeal Nos. 277, 413 to 416 and 918 of 1971.      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 Rajasthan  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 Section  302 read  with Section  149 and under Section 147 of  the Penal  Code, and  each of  them was sentenced to imprisonment 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, 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 that time the deceased was inside his hut with his wife Mooli (P.W.1). 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.1) raised  an outcry when Geli, mother of the deceased  (P.W.2) who had been at some distance from the hut came  running to  the place  of occurrence  and saw  the assailants leaving the place. 506      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  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

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and sentence  passed by the Session Judge on the grounds (1) that  P.W.1   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 discrepancies in her statement".      We have  been led  through the  evidence of P.W. 1, the only eye  witness in the case, of P.W.2, Geli, who says that she saw the respondents leaving the place of occurrence with the weapons  in  their  hands,  and  of  P.W.5  the  Medical Officer,  who   held  the  Post-Mortem  examination  on  the deceased. His evidence fully supports the evidence of P.W.1, who deposed that respondent Kalki gave a 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 witnesses, we do not  have the  least  doubt  in  our  mind  that  it  was respondent Kalki  who gave  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.      5. As  mentioned above  the High  Court has declined to rely on  the evidence of P.W.1 on two grounds: (1) she was a "highly interested"  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 person present in the hut with the deceased at the time of the occurrence, 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’ 507 witness. She  is related  to the  deceased. ’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  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.1 had no interest in protecting the real culprit, and falsely implicating the respondents.      6. The second ground on which the High Court refused to place reliance on the evidence of P.W. 1 was that there were "material discrepancies". As indicated above we have perused the evidence  of P.W.  1. We  have not  found any  "material discrepancies" 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  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 the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal

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person. As  indicated above  we have  not found any material discrepancies in the evidence of the P. W. 1.      7. Learned  counsel for  the respondent  submitted that the appeal  involved only  appreciation of evidence 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 Constitution  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 miscarriage 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 reasonable doubt and  their   acquittal  resulted  in  grave  miscarriage  of justice. 508      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 imprisonment for life.      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. 509