CASE NO.: Appeal (crl.) 431 of 2006 PETITIONER: Vikram & Ors RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 09/05/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT:
J U D G M E N T
S.B. Sinha, J.
1. Appellants who are five in number are before us being aggrieved by
and dissatisfied with the impugned Judgment of the High Court of Bombay,
Aurangabad Bench at Aurangabad dated 5.9.2005 passed in Criminal Appeal
No. 398 of 1999 affirming a judgment of conviction and sentence dated
30.9.1999 passed by the Sessions Judge, Beed in Sessions Case No. 18 of
1998 convicting the appellants herein inter alia for commission of an offence
under Section 302 read with Section 149, Section 147 read with Section 149
of the Indian Penal Code.
2. Appellants herein were proceeded against for committing an offence
of culpable homicide amounting to murder of one Dnyandeo and for
causing hurt to one Bapu (P.W. 6) on 22.1.1997 at about 10.30 p.m. in the
night in Village Pangulgavhan within the Police Station Ashti in the District
of Beed. First Information Report in respect thereof was lodged at 7.30
a.m. on 23.1.1997 by PW-2 Rohidas Gite alleging that while he had been
sleeping in his house after taking meal, his uncle Ajinath Gite (P.W. 3) came
to his house to inform him that thieves had come and some ‘tumult’ is going
on, whereupon both of them went towards the place of occurrence and found
that both the ‘deceased’ and the ‘injured’ were being assaulted by accused
No. 1 Vikram, accused No. 2 Mokinda, accused No. 3 Tatyaba, accused No.
4 Bhagan, accused No. 5 Rambhau, alongwith some others (who being
juvenile, had been separately tried). They, although, tried to intervene, but
were threatened not to do so. He thereafter went to the House of the
deceased and informed his wife as well as Raosaheb Namdeo Gite who
came to the place of occurrence. Other persons including Ashruba
Pandharinath, Mahadeo Pandharinath, Shyamrao Gajaba, Ashok Baba,
Mahadeo Lahanu also came to the spot. The injured were, by that time
dragged upto the river by the assailants. They were asked to stop assaulting
and were furthermore requested in the event they had any dispute with him
in regard to their land should take recourse to the law whereupon the
assailants left them in the river and fled. Both the deceased and Bapu
Kisan Gite (PW-6) were found to be unconscious.
3. P.W. 2 Rohidas was advised by others to inform the Police Station on
telephone whereupon he went to Village Bhalavani alongwith Ajinath,
Gangaram and Bayaji Bhiva at about 1:00 a.m. and informed the Officer in
charge of Police Station on telephone. On receipt of the said information, a
police officer visited the place of occurrence at Village Pangulgavhan. In
the meanwhile, the injured were shifted in front of the house of Laxmibai
Ashruba Gite. They were later on shifted by the police personnel to the
Government Hospital at Ashti. Whereas Dnyandeo Vithoba Gite was
declared dead, PW-6 was admitted in the hospital. Mr. Suresh Gange ,
P.W. 8 registered a case under Section 147, 148, 149 and 302. He seized
three articles including a bamboo stick measuring about 2 ft. and 5 inches
with a diameter of about 2 inches. Other articles were also seized.
Appellants were arrested on 24.1.1997. The prosecution case was proved
primarily by PW-2 the informant, PW-3 Aginath, PW-4 Janardhan and the
injured witness P.W. 6 Bapu.
4. The learned Trial Judge by reason of a judgment of conviction and
sentence dated 30.9.1999 on arriving at a finding of guilt, awarded life
imprisonment and a fine of Rs. 1,000/- each under Section 302 read with
Section 149 of the Indian Penal Code, simple imprisonment of 6 months for
commission of the offence under Section 149, fine of Rs. 500/- each under
Section 147 read with Section 149 and fine of Rs. 500/- under Section 149 of
the Indian Penal Code. The appeal preferred by the appellants thereagainst
has been dismissed by the High Court by reason of the impugned judgment.
5. Mr. Arvind V. Savant, learned senior counsel appearing on behalf of
the appellants in support of this appeal inter alia would submit;
(i) P.W. 2 having informed the officer-in-charge of Police Station Ashti
on telephone which having been recorded in writing, the First Information
Report lodged at 7.30 a.m. on 23.1.1997 is barred under Section 162 of the
Code of Criminal Procedure.
(ii) Some of the witnesses having been examined by the Investigating
Officer on 8.8.1997, their statements could not have been relied upon.
(iii) The fact that First Information Report reached the Magistrate only on
24.1.1997 would go to show that the same was an anti-timed one.
(iv) The witnesses having failed to disclose vital information in their
statements under Section 161 of the Code of Criminal Procedure, the learned
Sessions Judge as also the High Court committed a serious illegality in
passing the impugned judgment.
(iv) In any view of the matter, no specific overt act having been attributed
to any of the appellants herein, conviction under Section 302/149 of the
Indian Penal Code cannot be sustained and they should be convicted only
under Section 325 thereof.
6. Mr. Sushil Karanjkar, the learned counsel appearing on behalf of the
State would, however, support the impugned judgment.
7. Homicidal nature of death of the said Dnyandeo is not in dispute.
Sufferance of injuries by Bapu Kisan Gite, P.W. 6 is also not in dispute.
8. Dr. Subhash Mahadeo Patharkar P.W. 7 conducted the post mortem
examination. He found the following ante-mortem injuries.
“1. C.L.W. on the right parietal region placed
vertically 1=” x 1″ x bone deep. No evidence of
fracture felt on palpation, object used was hard and
blunt.
2. C.L.W. on right front to parietal region, oblique,
placed 2″ x 1″ x bone deep, no evidence of
fracture, felt on palpation, object used hard and
blunt.
3. C.L.Ws. two in number of right index finger, =” x
<" x 1/8", each, object was hard and blunt.
4. An abrasion on right Ileac region, curved 2″ x
1/8″.
5. C.L.W. on right leg 1″ x = x <".
6. Abrasion on right medical malleouls, =” x <".
7. Multiple contusions over the back of variable size
and shape placed in variable directions caused by
Lathi.
8. Multiple imprint abrasion over back of variable
size, caused by chain of variable directions.
9. Six contusions on right buttock and right thigh,
horizontally placed, one above the other 7″ x 1 =”
object hard and blunt (Lathi)”
9. Amongst others, on the left lungs, two internal injuries were found;
“1. Contusion on left lower lobe 3″ x 2=” cut
section contains blood.
2. Contusion on left upper lobe, 4″ x 3″ cut
section contains blood.”
10. The said two injuries were referable to external injury No. 7.
11. PW-9 , Dr. Dattu Zambre examined Babu Kisan Gite and found the
following injuries on his person;
1. Contused lacerated wound on left parietal region, 8
cm. x 0.5 cm. x bone deep, margins irregular
anteroposterior in direction.
2. Contusion over left thigh, ant, side in middle 1/3, 8″
x 1 =” vertical direction margins irregular.
3. Multiple contusions over right anteromedial aspect
of thigh, 5″ x 1=”, 4″ 1=”, 6″ x 1 =”, 4″ x 1 =”, 5″
x =” , intermixed with each other.
4. Contusion, on abdomen above unblicious 3″ x 1″
horizontal, irregular margins.
5. Contused abrasion on left shin of tibia Lower 1/3rd,
<" x <" margins irregular.
6. Contused Abrasion, on right shin of tibia Lower 1/3,
<" x <", margins irregular."
12. All the injuries were caused by hard and blunt objects like lathi.
13. It is also not in dispute that the parties were having disputes over
some lands.
14. It has also not been suggested before us that PW-2 was enemically
disposed of towards the appellants. Both the parties are from the said
Village.
15. P.W. 2 in the First Information Report as also in his deposition before
the Court categorically stated that eight persons i.e. the appellants herein
and three juveniles were assaulting the deceased and PW-6. On his asking
them not to assault the deceased and P.W. 6, he was told that he had no
business to interfere as he was not concerned with the matter. He
immediately informed Tulsabai and Raosaheb. Tulsabai and Raosaheb
also asked the appellants to leave the deceased, but not only assault upon
them did not stop, they were dragged towards the river on the western side.
Some other persons in the meantime came to the spot and they also asked
the accused to leave the victims. There was no police post in the village.
As he was advised to make a phone call, keeping in view the fact that the
deceased and injured were to be brought back to the village, P.W. 2 had to
go to the house of Moinoddin Pathan to wake him up as the Gram
Panchayat Office, where the phone was available, was adjoining to his
house. His information to the police officers could not have been in great
details. As he was assured that the police would be coming, he waited for
the police party by the side of Ashti Bhalwani to Pangulgavan Road. The
police party came at about 1 a.m. They came in a police jeep to the house
of Laxmibai and then only the deceased and the injured could be sent to the
hospital. It appears from the evidence of Dr. Dutta, that the deceased was
brought to the hospital under a requisition letter. It was evidently issued
by the Investigating Officer.
16. The said requisition letter was proved and marked as Exh. 49.
17. PW-6 was found to be semi-conscious and he was not in a position
to reply to the questions put to him.
18. He was admitted as an indoor patient in the hospital on 23.1.1997 and
was discharged only on 26.1.1997. In a situation of this nature, explanation
of PW-2 and others that they gave priority to the treatment of the deceased
and the accused which occasioned the delay in lodging the First
Information Report and the same having been accepted by two courts
below, we do not find any reason to disagree. We find no reason to
discard the testimony of P.W. 2 who is an independent witness.
19. Strong reliance has been placed by Mr. Savant on a decision of this
Court in State of M.P. v Kriparam [ (2003) 12 SCC 675]. In that case,
the High Court had reversed a judgment of acquittal. This Court found the
evidence of the eye-witnesses to be artificial. At one stage they had said
that they were at the same place but later on changed their story alleging
that they had been sleeping separately. The Court found so much
contradictions in regard to the direction and place the witnesses said to
have run away from the alleged place of occurrence and their hiding at
other place till next morning, was found to be un-acceptable.
20. It is on the aforementioned backdrop of events, this Court opined that
the delay in lodging the First Information Report was attempted to be
explained only by inventing the story that they fled away from the scene of
occurrence and were hiding till 8 o’clock in the morning. This Court
furthermore found contradictions even in relation thereto.
21. The said decision cannot be said to have any application in the instant
case.
22. Reliance has also been placed by Mr. Savant on Shankarlal v State
of Rajasthan [(2004) 10 SCC 632]. In that case also, the testimonies of
the alleged eye-witnesses were not believed. Therein also, the
explanation for lodging the First Information Report after some delay viz.
that the informant upon seeing the occurrence got scared and took different
road, reached the village at about 4 or 4.15 pm, whereas the occurrence
had taken place at about 1.30 a.m., the delay in lodging the First
Information Report at 3.15 a.m. on the next date was not believed stating;
“In such circumstances this unexplained long
delay also creates a doubt in our mind as to the
genuineness of the prosecution case. Once we are
not convinced with the evidence of PW 6 then
there is no other material to base a conviction on
the appellant, hence we are of the opinion that
the appellant is entitled to the benefit of doubt,
therefore, this appeal succeeds and is allowed.”
23. The said decision also has no application to the fact of the present
case.
24. It may be true that P.W. 2 had informed the officer in charge of the
Police Station on telephone, but the circumstances in which the said call
had to be made has been noticed by us heretobefore.
25. The Head Constable states that he had written down the same but
then it must have been a cryptic report and only for the purpose of visiting
the scene of occurrence. He as well as the Investigating Officer did not
say that it was a detailed report.
26. If, in the aforementioned premise, another First Information Report
which was a detailed one came to be recorded, no exception can be taken
to the same being treated as a First Information Report.
27. Reliance has been placed by Mr. Savant on Tapinder Singh v State of
Punjab and Another[(1970) 2 SCC 113]. Therein this Court held that
cryptic and anonymous oral message which did not in terms clearly specify
commission of a cognizable offence cannot be treated as first information
report.
28. See also State of U.P. v P.A. Madhu [AIR 1984 SC 1523], Ramsinh
Bavaji Jadeja v State of Gujarat [(1994) 2 SCC 685] Binay Kumar Singh v
State of Bihar [AIR 1997 SC 322] and Soma Bhai v State of Gujarat [AIR
1975 SC 1453].
29. We must notice that the appellants have not questioned the factum of
coming of the police personnel to the village, taking the deceased and the
injured to the hospital, seizure of the articles, preparation of panchnamas
etc.. As major part of the actions taken by the Investigating Officer
pursuant to the First Information Report in this case is not disbelieved,
We fail to see any reason as to why the statement of P.W. 2 made before
the Officer in-charge on 23.1.1997 at 7.30 a.m. should be discarded.
30. Before embarking upon the other contentions raised by Mr. Savant,
we may notice a disturbing feature of this case. Statements of the witnesses
and in particular, the injured witness, P.W. 6 had been recorded. The said
statement was available on the records of the learned trial judge while
considering of the application for bail filed by the appellants.
31. The learned trial judge in his judgment in the proceeding sheet dated
27.2.1997 noticed as under:-
“7. Perused the case papers. It reveals from the
case papers that not only the complainant is an eye
witness but Ajnath, Rohidas, Tulsabai and Inured
Bapu also stated about the occurrence consistently.
The post mortem report support the fact of
occurrence as narrated by the eye witnesses. On
perusal of the F.I.R. and other witnesses at least at
this stage it cannot be said that F.I.R. is belated.
Thus from the aforesaid material there is a prima
facie case against all these applicants for the
offence punishable u/secs. 147, 148, 149 and 302
of I.P.C. The investigation is in progress. Some
of the accused are yet to be arrested. Admittedly
there is a long standing enmity between the
accused persons and the family of the deceased
and others. It is seen from the case papers that
these applicant and co-accused armed with deadly
weapons attacked on deceased and his nephew
Bapu and though eye witness attempted to rescue
them the accused did not allow them to came and
make any intervention. On perusal of the case
papers it is seen that the injured Bapu made a repot
that some of the relatives of the accused gave
threats to him for not disclosing the names of the
accused before the police. Thus if the
circumstances in which the alleged incident taken
place, the conduct of the accused persons at the
relevant time of the alleged incident and the above
referred facts considered together I find much
substance in the contention of the learned
A.P.P……”
32. Learned Trial Judge in his judgment categorically held that only an
additional statement of P.W. 6 Bapu was recorded on 8.8.1997 although
initially his statement was recorded immediately after the alleged incident.
P.W. 6 had also informed the authorities that he was being threatened by
the relatives of the appellants not to disclose their names.
33. Despite the fact that the statement of P.W. 6 and other witnesses
were on record and P.W. 6 had been threatened by the relatives of the
appellants, the same did not form part of the case diary. The learned Trial
Judge in the aforementioned situation opined that the Investigating Officer
was helping the appellants in the following words.
“57. For above stated reasons, so far as the
attack of the defence on record of the belated
statement of P.W. 6 Bapu is concerned, looses it
much force be cause from the previous Court
record itself it is evident that there was statement
of P.W. 6 Bapu which was produced for the
scrutiny and perusal of the court in the month of
February 1997 itself while entertaining the bail
application and like magic vand the said
statement vanished from the police record for
which P.W. 12 P.S.I. Ovhal could not give any
satisfactory explanation. Leave apart the
question of vanishing of the statement from the,
police record there is not a single word about it in
the entire police diary which itself, I am painful
to point out reflects on dishonest, perfunctory
manner of investigation by the concerned police
officer. I am really surprised as to how the
defence could at this juncture venture to submit
that the investigation is tainted favoring the
accused while from the above fact the fact is
otherwise.”
34. The reason for the Investigating Officer in interpolating the case
diary and not producing the purported recording of the information
received by him on phone is not difficult to comprehend. We have grave
doubt even in regard to the statement of the Head Constable that he had
recorded in writing any information received from P.W. 2 on phone.
Police Officers might not have recorded the said statements only to help
the appellants. We would have otherwise held that benefit therefor should
go to the accused, but in this case the fact that statements were made
before the police at the earliest possible opportunity is available on record.
We have been taken through the deposition of the eye witnesses. In
particular our attention has been drawn to purported omissions of the said
witnesses. We have considered each one of them carefully. The purported
omissions related only to the details of the occurrence, but the fact that
P.Ws. 2, 3, 4 and 6 were eye witnesses to the occurrence does not stand
thereby disproved in any manner whatsoever. The occurrence took place
on 22.1.1997. They were examined in Court two and a half years later, If
there occurred some contradictions or even assuming they had omitted to
state the incident in great details, the same by itself would not lead to a
conclusion that the appellants had been falsely implicated in the case.
35. We, see no reason to differ with the findings of the courts below,
particularly in view of the fact that P.W. 6 was an injured witness. He
admittedly received serious injuries, remained unconscious for a long time
and had to remain as indoor patient till 26.1.1997. So far as the
submission of the learned counsel that the appellants did not have any
common object to cause the death of Dnyandeo is concerned, we also find
no merit therein. Eight persons came together. They assaulted the
deceased and P.W. 6 indiscriminately. Despite having been asked to stop
assaulting them, not only by P.W. 2 but also by the wife of the deceased,
they did not pay any heed thereto. They continued to assault them. They
dragged them to the west bank of the river and only left them there when a
large number of people gathered and asked them not to do so.
36. The question, as to whether in a given case common object has been
made out or not, will depend upon the facts and circumstances thereof;
Conduct of the parties and the manner in which the occurrence has taken
place, will have some bearing on the question. We, keeping in view the
facts and circumstances of this case, are of the opinion that the submission
that it is not a case where despite the fact that specific overt acts on the part
of each of the appellant herein had not been specifically stated, they cannot
be held guilty only under Section 325 of the Indian Penal Code.
37. In Bhima alias Bhimrao Sida Kamble and Others v State of
Maharashtra [(2002) 7 SCC 33], whereupon Mr. Savant placed strong
reliance, this Court noticed that some accused persons were held to be
carrying common object whereas another was held to have common
intention. There was no evidence as to the nature of weapons with which
they were armed; and in fact there was no evidence to show that the
appellants therein had any weapon with them or caused any hurt to
anybody. A large number of persons were involved. In the aforementioned
situation, this Court found that the object of the mob was to teach the
deceased a lesson who was a bully in the village and only in that situation
an inference was drawn that the common object was to commit offences
under Section 323 and 325 and not under Section 302 read with Section
149 of the Indian Penal Code.
38. The said decision have no application to the facts of the present case.
39. There is, thus, no merit in this appeal, which is accordingly dismissed.