N 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 DB 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
The material facts of the prosecution case were that there was a land dispute between Nimba PW6 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 PW1
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 PW1 raised an outcry when Geli mother of the deceased PW2 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
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
The High Court has set aside the Order of conviction and sentence passed by the Session Judge on the grounds 1 that PW1 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 PW 1 the only eye witness in the case of PW2 Geli who says that she saw the respondents leaving the place of occurrence with the weapons in their hands and of PW5 the Medical Officer who held the Post Mortem examination on the deceased
His evidence fully supports the evidence of PW1 who deposed that respondent Kalki gave a blow on the neck of the deceased with an axe
PW 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
As mentioned above the High Court has declined to rely on the evidence of PW1 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 PW1 had no interest in protecting the real culprit and falsely implicating the respondents
The second ground on which the High Court refused to place reliance on the evidence of PW 1 was that there were material discrepancies
As indicated above we have perused the evidence of PW 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 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
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 30234 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
VDK Appeal allowed


Summary:
Respondent Kalki alias Kali and her husband Amara along with four other co accused were charged convicted under section 302 IPC and sentenced to life imprisonment
While Kalki was also convicted and sentenced under section 148 IPC for two years  rigorous imprisonment the other five accused were convicted and sentenced under section 147 IPC 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 PW 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 time of the occurrence and the like
There are no material discrepancies in the evidence of PW 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
PW 1 had no interest in protecting the real culprit and falsely implicating the respondents
507 A B