Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 986 OF 2007
Pandurang Chandrakant Mhatre & Ors. …Appellants
Versus
State of Maharashtra …Respondent
JUDGEMENT
R.M. Lodha, J.
This criminal appeal by special leave is directed
against the judgment of the High Court of Judicature at Bombay
whereby the Division Bench of that Court upturned the
judgment of acquittal passed by the IInd Additional Sessions
Judge, Raigad in respect of the present appellants and
convicted them for the offences punishable under Section 302
read with Section 149, section 326 read with 149 and Section
148, IPC and sentenced them to suffer imprisonment for life
and different period of sentence under other counts along with
fine and default stipulation.
2. Nineteen persons were arraigned before the Trial
Court for the offences under Sections 147, 148, 302 read with
Section 149, section 302 read with section 34, section 307
read with section 149 and section 326 read with section 149,
IPC. Trial Court acquitted all of them. The prosecution
challenged the judgment of acquittal before the High Court of
Judicature at Bombay. The High Court granted leave to appeal
against fourteen accused persons only. As against remaining
five accused, leave was refused. During the pendency of
appeal, one of the accused, against whom leave was granted,
died. Of the remaining thirteen accused, the Division Bench
affirmed acquittal of five. The Division Bench convicted eight
accused as indicated above.
3. Before dealing with the points raised in the appeal,
it is appropriate to set out very briefly the prosecution case.
Phunde, a small village in Taluka Uran, District Raigad,
Maharashtra has two groups; one group is politically associated
2
with the Peasants and Workers Party (PWP) while the other
group has alliance with the Congress (I) Party. The party of the
assailants belong to PWP and the prosecution witnesses
belong to Congress-I party. The deceased was also a
Congress-I party worker. The relations between the two groups
due to party politics seem to have been strained for quite some
time. Several criminal cases have been lodged by these two
groups against each other. On the outskirts of the village
Phunde, there is a temple popularly known as Gurbadevi
Temple. The said temple celebrates every year an annual fair
with pomp and show; a Jagran is held in the night on the said
occasion. On April 2, 1988, the annual fair at Gurbadevi Temple
was being celebrated; the idol was adorned with ornaments
and the entire temple complex was illuminated with electric
lights. In the night, the villagers gathered in the temple for
Jagran. The group belonging to Congress (I) party took active
part in the management of the said fair. The celebrations
continued until midnight. Thereafter, most of the villagers left
the temple. However, 15-20 persons who were in management
of the said festival stayed back to keep watch over the
3
ornaments adorned by the idol. Few of those who stayed back
were chit-chatting in Sabhamandap, while some of them were
simply resting and others kept themselves awake by playing
cards. In the intervening night of April 2, 1988 and April 3, 1988
at about 3 - 3.15 A.M., Ramesh Mhatre (A-3) came to the
temple, had a look around and then left. A-3 did not speak to
anybody. About 15-20 minutes thereafter, A-3 returned to the
temple with a group of about 20 persons. All of them were
allegedly armed with weapons like iron bar, swords, pharashi,
sticks etc. As soon as they reached, they are said to have
started attacking the people assembled there. Pandurang
Chandrakant Mhatre (A-2) and Ramesh Mhatre (A-3) gave
iron-bar blows on the back of Nandkumar Mhatre (PW-2) but he
escaped and ran towards the village. The accused persons
started shouting ‘dhara-dhara’ ‘mara-mara’. Then, they
assaulted Suresh Atmaram Gharat (deceased), Sudin Mhatre
(PW-4), Namdeo Mhatre (PW-5), Laxman Mhatre (PW-6),
Gopal Thakur (PW-7), Mahindra Mhatre (PW-8) and Mahesh
Bhoir (PW-10). Suresh Atmaram Mhatre, ran towards Uran-
Panvel Road but the accused persons chased him. Maninath
4
Shanker (A-12) assaulted him with sword. The other accused
persons assaulted him with sticks and iron bars. As a result of
that assault, Suresh Atmaram Gharat sustained serious
injuries. PW-2 rushed towards village and shouted for help by
saying that PWP workers were assaulting their (Congress-I)
Party members. Hearing this, the villagers rushed towards
Gurabadevi Temple. PW-2 then went to Nhava Sheva Police
Station where he reached at about 4.15 A.M. (April 3, 1988).
On reaching at Nava Sheva Police Station, PW-2 found that
Namdeo Mhatre (PW-5) was already sitting in the police station
who had conveyed to the police that persons from rival party
(PWP) have assaulted the persons from their party and, that
arrangements be made in sending the Police Party. PSI Anil
Tamaichekar (PW-18) alongwith two police constables and
PW-2 immediately left for the temple in a police jeep. On his
way to village Phunde, PW-18 made enquiries from the persons
who were crying and he came to know that the injured persons
have been taken to Uran Dispensary. When he reached Uran
Dispensary, he was informed that seriously injured persons
have been sent to Sion Hospital, Bombay. PW-18 then went to
5
the place of occurrence and from there he proceeded for Nhava
Sheva Police Station. On his way, PW-18 came across one
ambulance carrying injured persons. PW-18 was informed that
one of the injured persons viz., Suresh Atmaram Gharat was
dead. PW-18 and PW-2 then immediately went to Nhava Sheva
Police Station. PW-2 lodged the complaint (Exh. 31) based on
which a criminal case (C.R. No. 17/88) was registered at 6.00
A.M. on April 3, 1988 for the offences under Sections 302, 147,
148, 149, 323, 114, 307 and 326, IPC. The investigation into
the crime was commenced by PW-18; he prepared inquest
Panchnama (Exh.67); spot Panchnama (Exh. 32); and
recorded the statements of some witnesses in the vicinity of
scene of offence. The investigation was then taken over by
Shantaram Waghmare, Assistant Commissioner of Police (PW-
17) and changed hands as PW-17 was transferred. As the
accused persons were not traceable, the Investigating Officer
searched them vigorously. Six accused persons were arrested
on May 26, 1988; nine were arrested on May 28, 1988 and the
remaining four were arrested on August 16, 1988. For the
period from May 28, 1988 to August 18, 1988, on different
6
dates at the instance of different accused persons, weapons of
assault were recovered. The investigation took long time of
about 4-5 months.
4. The postmortem of dead body of Suresh Atmaram
Gharat was conducted on April 3, 1988 by Dr. Bhujang Bawa
(PW-11), Medical Officer, Uran Dispensary. PW-11 also
medically examined injured witnesses on the same day; six of
them were sent to the Sion Hospital, Bombay for treatment as
they received serious injuries. Upon completion of all necessary
formalities in the investigation, the Challan was submitted by
the Investigating Officer before the Judicial Magistrate, First
Class, Uran against Kamlakar Shrawan Thakur (A-1),
Pandurang Chandrakant Mhatre (A-2), Ramesh @ Raman
Chandrakant Mhatre (A-3), Parshuram Chandrakant Mhatre
(A-4), Ashok Yadav Mhatre (A-5), Damodar Vasant Gharat (A-
6), Vinod Trimbak Mhatre (A-7), Prakash Pandurang Thakur (A-
8), Mahesh Pandurang Gharat (A-9), Ramchandra Raghunath
Mhatre (A-10), Mahesh Shankar Gharat (A-11), Maninath
Shankar Gharat (A-12), Mukund Moreshwar Mhatre (A-13),
Ganpat Raghunath Mhatre (A-14), Bhushan Balchandra Mhatre
7
(A-15), Dayanand Mahadeo Mhatre (A-16), Rupendra Shripat
Mhatre (A-17), Nitin Kamalakar Thakur (A-18) and Prakash
Madhukar Mhatre (A-19). As offences like 302 and 307 were
exclusively triable by the Court of Sessions, the Judicial
Magistrate, First Class, committed the aforesaid accused
persons to the Court of Sessions Judge, Raigad-Alibagh. The
case was transferred to the Court of IInd Additional Sessions
Judge, Raigad-Alibag for trial.
5. PW-11 found following injuries on the body of the
deceased :
“(1) Incised wound over the left Iliac fossa, vertical skin
deep, 8 X ½ cm.
(2) Incised wound over the head 4 cm above the
Occipital. Vertical 3 x ½ cm. Bone deep
(3) C.L.W. over the right upper arm in the middle on
lateral side (4 x 4 cm.) with fracture of the right humerus m/3.
(4) C.L.W. just below the right Tibial Tuberosity 3 x 3 cm.
Irregular with fracture of Tribia and fibula U/3.
(5) C.L.W. over the right shin over lower/3 on anterior
side 2 x 2 cm. with a fracture of tibia and fibula L/3.
(6) Fracture of left Radius and Ulna L/3.”
The aforesaid injuries on the body of deceased were
found ante-mortem by PW-11.
6. Laxman Mhatre (PW-6) was initially taken to the
Uran Dispensary and from there he was taken to Sion Hospital,
8
Bombay on April 3, 1988 itself. He was found to have sustained
following injuries (vide Exh. 87) :
“i) CLW (R) FO Region 2” x 1” BD
ii) S/7/D (L) UIna m/3 no. DWD
rd
CLW 1” x ½” SCD L/3 ulna PW m/3 Ulna clinically # m/3
Ulna Contamination +
iii) open injury (R) elbow CLW 2” x 1” BD
vertically splitting olecranon with impression # (R) trochlea
No DWD
iv) S/7/D (R) Ankle no DWD
v) tenderness (R) gluteal region.
vi) No.# spine/pelvis/ribs/clinically
x-ray # (L) Ulna m/3; # (R) Olecranon compo vertical;
soft tissue (R) ankle injury.”
7. Vithal Pandurang Mhatre (PW-3) was also taken to
Sion Hospital, Bombay on April 3, 1988. He was discharged on
May 14, 1988. At the time of admission in the hospital, the
following injuries were found on his person (Vide Exh. 88) :
“(1) Amputation (R) thumb with thumb held by skin tag.
(2) I/W (R) thigh subcutaneous deep 1” x ½“
8. Sudin Mhatre (PW-4) was admitted in Sion Hospital
on April 3, 1980. He remained there as indoor patient for three
days and was discharged on April 6, 1988. At the time of his
admission in the Sion Hospital, he was found to have sustained
the following injuries (Vide Exh. 89) :
“(1) CLW vertex 10 cm
(2) Outer table # skull ”
9
9. Mahindra Lalji Mhatre (PW-8) was admitted at Sion
Hospital on April 3, 1988 and was discharged on April 5, 1988.
At the time of his admission in Sion hospital, he was found
suffering from the following injuries (Vide Exh. 90) :
“(1) CLW sintered forehead 1 ½”
(2) CLW occipital 1 ½”
(3) CLW mucosal aspect lower lip area
(4) Multiple inj on back”
10. Namdeo Yadav Mhatre (PW-5) sustained the
following injuries :
“1. Abrasion over the back at lumbar region 2 x 2 cm with
irregular margin.
2. Abrasion over Rt.intra-axillary area 3 x 3 cm with irregular
margin.
3. Abrasion over the Left elbow jt. 1 x 1 cm irregular in
margin.”
11. Mahesh Kashinath Bhoir (PW-10) was also injured in the
incident and he suffered the following simple injuries :
“Wheelmark over the Epigastric region 6 x 2 cm vertical with
irregular margin.”
12. The prosecution sought to establish its case by
tendering nine eye-witnesses in evidence, viz., PW-2, PW-3,
PW-4, PW-5, PW-6, PW-7, PW-8, PW-9 and PW-10. Many of
them were injured. The accused persons denied that they had
10
anything to do with the offences charged. Their defence was
that a false case has been made against them by the aforesaid
prosecution witnesses. A-2 pleaded alibi in his defence.
13. The trial court rejected the evidence of eye-
witnesses holding that because of a sudden attack, all the
prosecution witnesses ran helter-skelter and everybody tried to
run away from the accused to save their life and in a situation
like this they must not have been in a position to see actually
who assaulted them. The trial court held that the evidence
regarding assault on Suresh Atmaram Gharat was not specific
and as he (deceased) ran from the temple, the attack on him
took place at some distance from the temple and being a night
time, none of the witnesses could see the attack on the
deceased from the short distance, say about 5’ to 10’. The trial
court observed that although PW-5 reached the Nhava Sheva
Police Station at about 4 to 4.15 a.m. and gave information
about the incident, but the FIR was registered at 6.00 a.m. at
the instance of PW-2. From this, the trial court drew the
inference that PW-18 and PW-2 must have pondered over the
11
matter for false implication of the accused in the offence. The
trial court, thus, acquitted all the accused persons.
14. The High Court, however, reversed the conclusion
of the trial court in respect of eight accused persons. The High
Court held that in the intervening night of April 2, 1988 and April
3, 1988 at about 3 to 3.30 a.m., there was an unlawful
assembly of which A-2, A-3, A-4, A-5, A-6, A-10, A-11 and A-12
were the members. The High Court also held that all the
accused were armed with deadly weapons like sword, iron bars,
pharshi, sticks and their common object was to make a
murderous attack on Suresh Atmaram Gharat. The High Court,
after setting aside the order of acquittal against A-2 to A-6,
A-10, A-11 and A-12, convicted them for the offence punishable
under Section 302 read with 149, I.P.C. and sentenced them to
suffer imprisonment for life. The High Court also convicted
these accused persons for other offences and punished them
for lesser sentence with fine and default stipulations.
15. Mr. R. Sundaravardan, learned Senior Counsel
addressed the principal arguments before us on behalf of
appellant nos. 1 to 3. Mr. A.K. Srivastava, learned Senior
12
Counsel made submissions for appellant nos. 4 to 6 and Mr.
Shekhar Naphade, learned Senior Counsel argued for appellant
no. 8.
16. Mr. R. Sundaravardan, learned Senior Counsel
submitted that FIR (A-31) is no FIR in law as it is hit by the
prohibition contained in Section 162 of Cr.P.C. He would submit
that FIR (A-31) is of doubtful authenticity as it lacks spontaneity
and delay in its registration. According to him, FIR ought to
have been registered in the first instance on the information of
PW-5 or in any case on the information given by PW-2 at 4.30
a.m. Instead, PW-18 (IO) takes PW-1 to the scene of
occurrence, meets the villagers and ambulance on the way,
dispatches the dead body to the hospital for the post-mortem,
goes to the village and thereafter proceeds to the police station
along with PW-2 and registers the purported FIR (A-31) with
coloured version, exaggerated accounts and concocted story
against whom the prosecution party has a grudge. Learned
Senior Counsel also submitted that there was gross violation of
Section 157, Cr.P.C. inasmuch as FIR in the Court was
received on April 12, 1988, although the occurrence took place
13
on April 3, 1988. He relied upon the decisions of this Court in
1
Meharaj Singh (L/Nk.) v. State of U.P. ; T.T. Antony v. State of
2
Kerala & Ors. and Ramesh Baburao Devaskar & Ors. v. State
3
of Maharashtra . The learned Senior Counsel, thus, submitted
that there is genuine doubt as to the time, date and manner in
which purported FIR (A-31) was recorded and police is guilty of
having not disclosed the whole correct story to the court.
17. Learned Senior Counsel would contend that the
evidence of witnesses, who professed themselves as eye-
witnesses deserved to be rejected as they belong to rival
political parties in a faction ridden village. Moreover, they are
related to each other as well as the deceased. These witnesses
have been examined at much belated stage by police; some of
them after nine days. Learned counsel would urge that one or
other of these prosecution witnesses are themselves accused
in sessions case; in some cases accused were
witness/complainant against them and some of the prosecution
witnesses’ parents were convicted for life. Their testimony is
also not corroborated by any doctor from Sion Hospital as no
1
(1994) 5 SCC 188
2
(2001) 6 SCC 181
3
(2007)13 SCC 501
14
doctor from that hospital was examined and that their evidence
suffers from vital contradictions, omissions, exaggerations and
improvements. In this regard, the learned Senior Counsel took
us through the evidence of PW-2, PW-3, PW-4, PW-5, PW-6,
PW-7, PW-8 and PW-9. He also submitted that evidence of
PW-3, PW-4 and PW-8 is hearsay evidence and, therefore, no
evidence in the eye of law.
18. Learned Senior Counsel vehemently contended that
investigation in the present case is an example of one of the
most unfair investigation inasmuch as the certificate regarding
A-2, as to his absence from scene though procured by PW-17,
yet, was kept away from the Court. He also cited late recording
of the FIR after having taken several steps of investigation as
yet another glaring example of unfair investigation. On top of it,
he would submit that FIR reached the concerned court after
nine days of incident.
19. Mr. R. Sundaravardan, learned Senior Counsel
also contended that plea of alibi set up by A-2 is established by
the evidence of DW-1 who is an officer of NAD.
Learned Senior Counsel also submitted that from the
15
prosecution evidence, the doubt about the place of occurrence
has not been cleared and that prosecution has failed to
establish the availability of adequate light at the site which
could have enabled the witnesses in fact see the incident.
20. Learned Senior Counsel strenuously urged that the
trial court has given cogent and convincing reasons for
acquitting the appellants but the High Court without justifiable
reasons and, rather, on flimsy grounds interfered with the
judgment of the acquittal.
21. Lastly, learned Senior Counsel, without prejudice to
the afore-noticed submissions, urged that there was no
evidence to show that there was common object of the unlawful
assembly to commit murder of Suresh Atmaram Gharat. He
invited our attention to the finding recorded by the High Court at
page 39 of the SLP paper book wherein the High Court
recorded that common object of the unlawful assembly was to
cause grievous hurt. Learned Senior Counsel would urge that
there was no specific evidence to show that Suresh Atmaram
Gharat died because of any particular blow. According to him,
the High Court although held that for six injuries on the person
16
of deceased, as per post-mortem report, nine accused cannot
be held guilty yet the High Court came to the conclusion that
common object of the unlawful assembly was to commit
murder. The learned Senior Counsel submitted that when there
was doubt as to who inflicted the fatal blow, as in the present
case, safe course is to convict the accused under Sections 326
or 304 Part-II, IPC. In this regard, the learned Senior Counsel
relied upon large number of decisions, viz., State of Haryana v.
4 5
Prabhu & Ors ; Sarwan Singh & Ors.etc. v. State of Punjab ;
6
Ram Anjore and Others. v. State of U.P. ; Gokul & Others v.
7
State of Rajasthan ; Md. Isak Md. & Others v. State of
8
Maharashtra ; Ninaji Raoji Baudha & Another v. State of
9 10
Maharashtra ; Nattan v. State of Tamil Nadu ; Mariadasan &
11
Others v. State of Tamil Nadu ; Bharwad Bhikha Natha &
12
Others v. State of Gujarat ; Harshadsingh Pahelvansingh
13
Thakore v. State of Gujarat ; Bhajan Singh and Others v. State
4
AIR 1979 SC 1019
5
AIR 1978 SC 1525
6
AIR 1975 SC 185
7
AIR 1972 SC 209
8
AIR 1979 SC 1434
9
AIR 1976 SC 1537
10
AIR 1976 SC 2197
11
AIR 1980 SC 573
12
AIR 1977 SC 1768
13
AIR 1977 SC 710
17
14 15
of Punjab ; Bansropan Singh and Others v. State of Bihar ;
16
Sarman & Others v. State of M.P.
22. On behalf of appellant No. 8 (A-12), separate
written submissions have been filed. While adopting the
arguments advanced by Mr. R. Sundaravardan, it is contended
on behalf of appellant No. 8 that the unexplained delay in
dispatch of FIR would create suspicion about the contents of
the FIR and the evidence of the eye-witnesses. In this regard,
17
reliance has been placed on : Ishwar Singh v. State of U.P ;
18
Radhakrishnan Nair v. State of Kerala ; Chotu v. State of
19 20
Haryana ; Palia v. State of Punjab ; Bathula Nagamalleswara
21
Rao And Ors. v. State rep. by Public Prosecutor ; Mahmood
22 23
and Anr. v. State of U.P. ; State of Punjab v. Avtar Singh ;
24
State of Punjab v. Gurdip Kaur and Ramesh Baburao
25
Devaskar And Others v. State of Maharashtra . It is also
contended that although the trial court recorded the finding to
14
AIR 1978 SC 1759
15
AIR 1983 SC 166
16
AIR 1993 SC 400.
17
AIR 1976 SC 2423
18
1995 Suppl (1) SCC 217
19
1996 SCC (Crl.) 1161
20
1997 SCC (Crl.) 383
21
(2008) 11 SCC 722
22
(2008) Crl. Law Journal 696
23
(2008) 14 SCALE 368
24
(2009) 1 SCC 120
25
2007 (13) SCC 501
18
the effect that there was violation of mandatory provisions
contained in Section 157 of Cr.P.C. which is fatal for
prosecution case, the High Court has not considered this
aspect at all which is a serious infirmity. In this regard, reliance
26
has been placed on Chandu v. State of Maharashtra ;
27
Kashiram & Ors. v. State of M.P. and Harijana Thirupala &
28
Ors. v. Public Prosecutor A.P., Hyderabad . A contention has
also been raised on behalf of the appellant No. 8 about the
inadmissibility of site plan (Exh. 29). Reliance has been placed
in this regard on the decision of this Court in the case of Ram
29
Ratan & Others v. State of Rajasthan .
23. On the other hand, Ms. Madhavi Divan, State
Counsel, supported the judgment of the High court.
24. In Meharaj Singh , this court explained the
consequences that may ensue due to delay in dispatching FIR
to the Magistrate in the following words :
“……….One of the checks is the receipt of the copy of the
FIR, called a special report in a murder case, by the local
Magistrate. If this report is received by the Magistrate late it
can give rise to an inference that the FIR was not lodged at
the time it is alleged to have been recorded, unless, of course
26
2002 (9) SCC 408
27
2002 (1) SCC 71
28
2002 (6) SCC 470
29
1962 (3) SCR 590;
19
the prosecution can offer a satisfactory explanation for the
delay in despatching or receipt of the copy of the FIR by the
local Magistrate. Prosecution has led no evidence at all in this
behalf……”
25. In the case of T.T. Antony, it has been held by this Court
that there can be no second FIR. While dealing with Section
154 and other relevant provisions, this Court said:
“18 . An information given under sub-section (1) of Section
154 Cr.P.C is commonly known as first information report
(FIR) though this term is not used in the Code. It is a very
important document. And as its nickname suggests it is the
earliest and the first information of a cognizable offence
recorded by an officer in charge of a police station. It sets
the criminal law in motion and marks the commencement of
the investigation which ends up with the formation of opinion
under Section 169 or 170 Cr.P.C, as the case may be, and
forwarding of a police report under Section 173 Cr.P.C. It is
quite possible and it happens not infrequently that more
informations than one are given to a police officer in charge
of a police station in respect of the same incident involving
one or more than one cognizable offences. In such a case
he need not enter every one of them in the station house
diary and this is implied in Section 154 Cr.P.C. Apart from a
vague information by a phone call or a cryptic telegram, the
information first entered in the station house diary, kept for
this purpose, by a police officer in charge of a police station
is the First Information Report — FIR postulated by Section
154 Cr.P.C. All other informations made orally or in writing
after the commencement of the investigation into the
cognizable offence disclosed from the facts mentioned in the
first information report and entered in the station house diary
by the police officer or such other cognizable offences as
may come to his notice during the investigation, will be
statements falling under Section 162 Cr.P.C. No such
information/statement can properly be treated as an FIR and
entered in the station house diary again, as it would in effect
be a second FIR and the same cannot be in conformity with
the scheme of Cr.P.C……………
20
19 . The scheme of Cr.P.C is that an officer in charge of a
police station has to commence investigation as provided in
Section 156 or 157 Cr.P.C on the basis of entry of the first
information report, on coming to know of the commission of
a cognizable offence. On completion of investigation and on
the basis of the evidence collected, he has to form an
opinion under Section 169 or 170 Cr.P.C, as the case may
be, and forward his report to the Magistrate concerned under
Section 173(2) Cr.P.C. However, even after filing such a
report, if he comes into possession of further information or
material, he need not register a fresh FIR; he is empowered
to make further investigation, normally with the leave of the
court, and where during further investigation he collects
further evidence, oral or documentary, he is obliged to
forward the same with one or more further reports; this is the
import of sub-section (8) of Section 173 Cr.P.C.
20 . From the above discussion it follows that under the
scheme of the provisions of Sections 154, 155, 156, 157,
162, 169, 170 and 173 Cr.P.C only the earliest or the first
information in regard to the commission of a cognizable
offence satisfies the requirements of Section 154 Cr.P.C.
Thus there can be no second FIR and consequently there
can be no fresh investigation on receipt of every subsequent
information in respect of the same cognizable offence or the
same occurrence or incident giving rise to one or more
cognizable offences. On receipt of information about a
cognizable offence or an incident giving rise to a cognizable
offence or offences and on entering the FIR in the station
house diary, the officer in charge of a police station has to
investigate not merely the cognizable offence reported in the
FIR but also other connected offences found to have been
committed in the course of the same transaction or the same
occurrence and file one or more reports as provided in
Section 173 Cr.P.C.”
26. In the case of Ramesh Baburao Devaskar , this
Court observed :
“ 18. A First Information Report cannot be lodged in a murder
case after the inquest has been held. The first information
report has been lodged on the basis of the statements made
by PW 11 to the informant himself at the spot. If the said
prosecution witness who claimed himself to be the
21
eyewitness was the person who could lodge a first
information report, there was absolutely no reason as to why
he himself did not become the first informant. The first
information report was recorded on the basis of his
information given to the first informant at the spot. All
information given by him to PW 13 was made before the
investigating officer himself. What prevented him from
lodging the First Information Report is beyond our
comprehension. PW 11, we may place on record,
categorically stated that he had disclosed the details of
information to all concerned. Therefore, it is expected that
the first informant was informed thereabout. We have
noticed hereinbefore that the information given by PW 13
had at least been recorded by the police in the crime register
and he categorically stated a few facts viz. the main accused
Accused 9 committed murder of his brother Shivaji Patil and
one Baburao Patil. Even the place where the murder took
place was known to him. If we are to believe the
investigating officer, he recorded the statement after holding
inquest. The detailed report in regard to the nature of injuries
as also the place where the injuries were inflicted was known
to him as inquest report had already been prepared. Such an
attempt on the part of the investigating officer has been
deprecated by this Court in a large number of decisions. All
other witnesses including the panch witnesses must have
been present there. If despite the same, according to panch
witnesses, at least in respect of Baburao, unknown persons
are said to be his assailants, it is evident that PW 11 did not
disclose the names of the assailants; at least all of them
before PW 9 as also the investigating officer.”
27. In Dharma Rama Bhagare v. State of
30
Maharashtra , this Court held that FIR is never treated as a
substantive piece of evidence; it can only be used for
corroborating or contradicting its maker when he appears in
Court as a witness.
30
(1973) 1 SCC 537
22
28. In the case of Vikram and Ors. v. State of
31
Maharashtra , this Court noticed :
“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. 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. 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. ”
29. It is fairly well settled that First Information Report
is not a substantive piece of evidence and it can be used only
to discredit the testimony of the maker thereof and it cannot be
utilized for contradicting or discrediting the testimony of other
witnesses. In other words, the First Information Report cannot
be used with regard to the testimony of other witnesses who
depose in respect of incident. It is equally well settled that the
earliest information in regard to commission of a cognizable
offence is to be treated as First Information Report. It sets the
criminal law in motion and the investigation commences on
that basis. Although First Information Report is not expected to
31
JT2007(7) SC 215
23
be encyclopedia of events but an information to the police to
be ‘first information report’ under Section 154(1), must contain
some essential and relevant details of the incident. A cryptic
information about commission of a cognizable offence
irrespective of the nature and details of such information may
not be treated as First Information Report. The question is:
whether the information regarding the incident (Ex.61) entered
in the General Diary of Nhava Sheva Police Station given by
PW-5 is the First Information Report within the meaning of
Section 154, Cr.P.C. If the answer is in affirmative, obviously
First Information Report (A-31) is hit by section 162 Cr.P.C.
30. It is true that PW-5 reached the police station at
about 4.00 – 4.15 a.m. He gave information that several
persons were assaulting members of their party; that the
accused were armed with deadly weapons and that police
should immediately leave for the place of occurrence. This
information (Ex.61) was entered in General Diary of the police
station. Based on this information, PW-18 left for the place of
occurrence alongwith PW-2 who had also reached the police
station by that time. The circumstances in which PW-18 had to
24
leave before recording a formal first information are obvious as
the first priority before him was to control the incident since by
that time none had died. In a situation such as the present
one, it cannot be said that the moment PW-18 left the police
station, the investigation had commenced. The object and
purpose of giving information (Ex.61) by PW-2 was to request
the officer in charge of the police station to reach the place of
occurrence. No doubt PW-18 (IO) had left for scene of
occurrence on the basis of entry in the General Diary (Ex.61)
recorded at the instance of PW-5 and he visited the scene of
occurrence and dispensary but effectively neither the inquest
was carried out before registration of FIR nor any step towards
investigation was taken before the lodging of First Information
Report (A-31). In an incident where large number of accused
are involved in assaulting rival village folk, obviously the first
task of the Police Officer (PW-18) is to ensure visit to the
scene of occurrence and provide police help, if necessary.
Rather, it would have been unnatural on the part of PW-18 to
have insisted on taking down the entire incident by way of First
Information Report when PW-5 reached the Police Station at
25
about 4.00 to 4.15 A.M. for getting help for the victims. The
immediate task for PW-18 was to focus on providing help to the
victims who, as per the version of PW-5, were still being
attacked. In the circumstances, FIR (A-31) is not affected by
any legal infirmity.
31. As regards delayed receipt of the copy of FIR by the
Court of Magistrate on April 12, 1988, in the first place Exhibit
84 - FIR register indicates that copy of FIR was sent to the
concerned Magistrate on April 3, 1988 itself.
Secondly, and more importantly, if the evidence of eye-
witnesses is found cogent, convincing and credible, the delay in
receipt of the copy of FIR by the concerned court would not be
of much significance.
32. It is, therefore, important to examine whether High
Court committed any error in accepting the evidence of PW-2,
PW-3, PW-4, PW-5, PW-6, PW-7, PW-8, PW-9 and PW-10.
The learned Senior Counsel criticised the testimony of these
eye-witnesses for various reasons viz., that they belong to rival
political parties in a faction ridden village; that they are related
to each other as well as deceased and that most of these
26
witnesses themselves have been accused in sessions case
and that their evidence suffers from vital contradictions,
omissions, exaggerations and improvements. Before we deal
with the evidence of PW-2, PW-4, PW-5, PW-7, PW-8 and
PW-9, we deem it proper to consider the evidence of PW-3
and PW-6 first.
33. Both, PW-3 and PW-6, sustained injuries. PW-6 at
the relevant time was a watchman in construction company.
His hut was at a distance of 10’ to 15’ from the temple. In the
nd rd
intervening night of 2 and 3 April, 1988, at about 3.30 A.M.
while he was on duty, he saw 20-25 people, armed with sticks
and iron bars entering the Sabhamandap. He also saw the
people who were doing Jagran running from the Sabhamandap.
Suresh Atmaram Gharat (Deceased) came running to the place
near him and he saw that the deceased was being chased by
A-1, A-2, A-3, A-4 and A-12. A-12 was armed with sword
while others were armed with iron bars and sticks. All of them
started attacking the deceased with the respective weapons in
their hands. The deceased fell on the ground. PW-6 deposed
that when he went ahead, A-3 gave iron bar blow on his head,
27
A-9 gave iron bar blow on his waist and A-12 gave sword blow
on his head but he held both his hands on his head and
received the sword blow on his left hand while resisting the
blows. PW-6 deposed that after some time, villagers came and
took injured persons including him to Uran Medical Dispensary
and from there they were taken to Sion Hospital in an
ambulance. He remained in Sion Hospital until April 11, 1988.
His statement was recorded by the Police on April 16, 1988.
The deceased was son-in-law of his eldest brother. The witness
has been cross-examined at quite some length and except
minor contradictions or omissions, his deposition has not at all
been shaken.
34. PW-3, a watchman, was on night duty in one private
company at a distance of about 15’. On April 2, 1988 he had
gone for his duty at 7.00 P.M. He saw that there was Jagran at
Gurbadevi temple. The singing and dancing in the temple
continued upto 1.00 A.M. and, thereafter, except 18-20
villagers, who stayed back at the temple, all others left. At
about 3.30 A.M., A-3 holding iron bar in his hand started giving
blows to him on his left leg. According to him, he resisted the
28
attack but at that time A-12 came there with the sword and to
resist the attack from A-12, he held his right hand on his head
but A-12 gave sword blow on his head and his thumb
got cut. A-2 and A-3 gave blows by iron bar on his back. He has
not given details of attack on others, particularly, the deceased.
35. The trial court commented on the evidence of PW-3
and PW-6 thus :
“I want to make some comment that what was the business
for P.W.6 Laxman Mhatre and P.W. 3 Vithal Mhatre to leave
their place of duty and witness the incident and get
themselves involved and injured during the course of
incident? When they were doing the job of watchman which
is a responsible job, it was not desirable for them to leave
the place of their employment. In such circumstances there
was a risk on their part to loss their job also. It is quite
obvious that during the course of the incident both of them
had left their place and had also got injured. The first
reaction of their employer would be that they would have
dismissed them from their job. The watchman would not
have risked their job at the cost of the villagers with whom
they had no concern. So one part of the matter is that these
witnesses must not have left their place and if they had left
their place, they are deposing falsely.”
36. We are afraid, the consideration of the evidence of
PW-6 and PW-3 by the trial court, particularly in the light of the
observations noticed above, was not proper.
37. We shall now examine the evidence of other eye-
witnesses. PW-2 is the person at whose instance FIR was
29
registered. In his deposition he stated that in the intervening
night of April 2 and April 3, 1988, he along with few other
persons were waiting in the temple for Jagran. A-3 came to the
temple at about 3 to 3.15 A.M. and after having a look at the
place, he left immediately. After about 10-15 minutes, A-3
returned alongwith 15-20 other persons. Those persons were
known to him as they belonged to the same village. A-3 and the
other persons accompanying him were holding weapons like
iron bars, sticks, rods, swords and they started assaulting those
who were present in the Sabhamandap. A-2 and A-3 were
holding iron bars and they assaulted him on his back. He
managed to escape from the said place and went towards
village and while going he saw that A-1, A-2, A-3, A-4, A-12,
A-13 and A-18 were armed with weapons.
38. PW-4 has also narrated the incident in a similar
way. According to him, in the intervening night of April 2 and
April 3, 1988, while he was sitting in the Sabhamandap, he was
assaulted on his head from the back side. He fell down and
immediately went away. He stated that while going, he saw
30
that A-12 was having the sword with him while A-3 was having
an iron bar. A-8 and A-9 were holding sticks.
39. PW-5 is another injured eye-witness. He stated that
he saw A-12 giving sword blow to PW-8 and A-10 giving
Pharshi blow to Gopal Thakur. He stated that A-2 gave iron bar
blow to him near his waist. He deposed that he immediately
rushed to Nhava Sheva Police Station and asked the police to
visit the place of incident. The fact that he reached Nhava
Sheva Police Station at 4.15 A.M. is corroborated by the station
diary entry (Exh. 57).
40. PW-7 deposed that A-2, A-3 and A-12 assaulted
Suresh Atmaram Gharat. He also deposed that A-12 was
having sword with him and he saw deceased Suresh Atmaram
Gharat being assaulted by these accused persons. According
to him, A-10 and A-13 gave pharashi blow from reverse side on
his right thigh and ran away from the place.
41. Yet another eye-witness is PW-8. According to him
A-2 gave iron-bar blow while A-12 gave a blow with sword on
his head. When he tried to run away, A-2 held him and A-1 and
A-3 gave blow on his back with iron bar. He deposed that A-3
31
caught hold of Suresh Atmaram Gharat and A-12 assaulted him
with sword. That he sustained multiple injuries is seen from Ex-
19. He remained indoor patient at Sion Hospital from April 3,
1988 to April 5, 1988.
42. PW-9 has deposed that A-12 was holding sword
and he saw A-2, A-3, A-11 and A-12 assaulting Suresh
Atmaram Gharat. Although his name is not mentioned in the
FIR, but his statement under Section 161, Cr.P.C. was
recorded at the first available opportunity on April 3, 1988.
43. PW-10 deposed that he saw A-1, A-2 and A-3
giving iron-bar blow to PW-2. He also deposed that A-1, A-2,
A-10, A-11, A-12, A-13 and A-17 assaulted the deceased. His
evidence is silent about the details of the incident. However, he
also seems to have suffered a couple of simple injuries as is
seen from Medical Certificate (Exh. 51).
44. As a matter of fact, the evidence of these eye-
witnesses is broadly corroborated by the medical evidence in
respect of the deceased as well as the injuries sustained by
them. PW-11, Medical Officer at Uran Dispensary examined
PW-2, PW-7 and PW-10 and the injuries sustained by these
32
witnesses is, accordingly, proved by the evidence of PW-11.
Insofar as injuries sustained by PW-6, PW-3, PW-4 and PW-8
are concerned, the injury reports, namely, Exhibit-87, Exhibit-
88, Exhibit-89 and Exhibit-90 support their version. It does not
appear from the record that the accused persons questioned
the correctness of Exhibit-87, Exhibit-88, Exhibit-89 and
Exhibit-90.
45. In Muthu Naicker and Others vs. State of Tamil
32
Nadu , this Court held that where an occurrence takes place
involving rival factions, it is but inevitable that the evidence
would be of a partisan nature and rejection of such evidence on
that ground may not be proper. This Court put a word of caution
that such evidence needs to be examined with utmost care and
caution. This is what this Court said :
“ 6. Where there is a melee and a large number of assailants
and number of witnesses claim to have witnessed the
occurrence from different places and at different stages of
the occurrence and where the evidence as in this case is
undoubtedly partisan evidence, the distinct possibility of
innocent being falsely included with guilty cannot be easily
ruled out. In a faction-ridden society where an occurrence
takes place involving rival factions it is but inevitable that the
evidence would be of a partisan nature. In such a situation to
reject the entire evidence on the sole ground that it is
partisan is to shut one’s eyes to the realities of the rural life
in our country. Large number of accused would go
unpunished if such an easy course is charted.
32
(1978) 4 SCC 385
33
Simultaneously, it is to be borne in mind that in a situation as
it unfolds in the case before us, the easy tendency to involve
as many persons of the opposite faction as possible by
merely naming them as having been seen in the melee is a
tendency which is more often discernible and is to be
eschewed and, therefore, the evidence has to be examined
with utmost care and caution. It is in such a situation that this
Court in Masalti v. State of U.P.(AIR 1965 SC 202) adopted
the course of adopting a workable test for being assured
about the role attributed to every accused. To some extent it
is inevitable that we should adopt that course.”
46. In the case of State of U.P. v. Ballabh Das and
33
Others , this Court held that evidence of interested witnesses
may be relied upon if such evidence is otherwise trustworthy.
This Court said :
“ 3 ……….. What the law requires is that where the
witnesses are interested, the court should approach their
evidence with care and caution in order to exclude the
possibility of false implication. We might also mention that
the evidence of interested witnesses is not like that of an
approver which is presumed to be tainted and requires
corroboration but the said evidence is as good as any other
evidence. It may also be mentioned that in a faction-ridden
village, as in the instant case as mentioned by us earlier, it
will really be impossible to find independent persons to come
forward and give evidence and in a large number of such
cases only partisan witnesses would be natural and probable
witnesses. This Court in Badri v. State of U.P.(AIR 1975 SC
1985) made the following observations: [AIR Headnote]
(SCC p. 616, para 6)
In case where a murder takes place in a village where
there are two factions bitterly opposed to each other, it
would be idle to expect independent persons to come
forward to give evidence and only partisan witnesses
would be natural and probable witnesses to the incident.
In such a case, it would not be right to reject their
testimony out of hand merely on the ground that they
33
(1985) 3 SCC 703
34
belonged to one faction or another. Their evidence has to
be assessed on its own merits
4. …….
5. The dominant question to be considered in the instant
case is whether the witnesses, despite being interested,
have spoken the truth and are creditworthy. Once it is found
by the court, on an analysis of the evidence of an interested
witness that there is no reason to disbelieve him then the
mere fact that the witness is interested cannot persuade the
court to reject the prosecution case on that ground alone.”
47. A similar view has been echoed by this Court in
34
State of U.P. v. Ram Swarup and Others wherein this Court
held :
“………..There is no rule of law to the effect that the
evidence of partisan witnesses cannot be accepted. The fact
that the witnesses are associated with the faction opposed to
that of the accused by itself does not render their evidence
false. Partisanship by itself is no ground for discarding sworn
testimony. Interested evidence is not necessarily false
evidence. In a small village like the one under consideration
where people are divided on caste basis, the prosecution
may not be able to get any neutral witness. Even if there is
any such neutral witness, he will be reluctant to come
forward to give testimony to support one or the other side.
Therefore, merely because the eyewitnesses are associated
with one faction or the other, their evidence should not be
discarded. It should, no doubt, be subjected to careful
scrutiny and accepted with caution.”
48. From the prosecution case, it is clear that the
incident took place between the two rival political factions and
that all eye-witnesses (except PW-3 and PW-6) belong to victim
34
1988 (Supp) SCC 262
35
party. In a way, therefore, PW-2, PW-4, PW-5, PW-7, PW-8,
PW-9 and PW-10 can be stamped as interested witnesses.
PW-6 has deposed that the deceased was son-in-law of his
eldest brother and to that extent he is also an interested
witness. In the light of legal position noticed above before
relying upon testimony of these witnesses, adequate assurance
from other circumstances or materials is required to be seen.
The evidence of such witnesses has to be examined with great
care and caution to obviate possibility of
false implication or over-implication.
49. In cases involving rival political factions or group
enmities, it is not unusual to rope in persons other than who
were actually involved. In such a case, court should guard
against the danger of convicting innocent persons and
scrutinise evidence carefully and, if doubt arises, benefit
should be given to the accused.
50. A critical examination of the evidence of PW-2,
PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-10 would
show that their presence at the time of incident cannot be
doubted. Most of them got injured in the incident. PW-2 has
36
named A-1, A-2, A-3, A-4, A-12, A-13 and A-18 being armed
with the weapons. He has not spoken of any assault by them
on the person of the deceased. PW-3 has spoken of the
presence of A-2, A-3 and A-12. According to him, A-12 gave
sword blow on his head and A-2 and A-3 gave blows by iron-
bar on his back. PW-3 has also not deposed of any actual
assault by these accused persons on the deceased. Insofar as
PW-4 is concerned, he has spoken about the presence of A-
3, A-8, A-9, A-12 and A-19. He has also not stated about the
attack by these persons on the deceased. PW-5 has stated
about the presence of A-2, A-10 and A-12. He did state about
the injury caused by A-2 on his waist. According to him, A-12
attacked PW-8 and A-10 caused pharshi blow on Gopal
Thakur. PW-6 deposed that A-1, A-2, A-3, A-4 and A-12
chased the deceased; A-12 was armed with sword while others
were armed with iron bars and all of them started attacking the
deceased with their respective weapons in their hands. He also
deposed about the injury caused to him by A-3, A-9 and A-12.
PW-7 has stated about the assault by A-2, A-3 and A-12 on the
deceased and by A-10 and A-13 on him. PW-8 has stated that
37
A-3 caught hold of the deceased and A-12 assaulted him
(deceased) with sword. He has also stated that A-1, A-2
caught hold of him (witness) and A-1 and A-3 gave blow on his
back with iron bar. PW-10 deposed that A-1, A-2, A-10, A-11,
A-12, A-13 and A-17 assaulted the deceased and A-1, A-2 and
A-3 gave blow by iron bar to PW-2. The testimony of these
witnesses is corroborated from the medical evidence.
51. Section 149 IPC creates a specific and distinct
offence. Its two essential ingredients are :
(i) commission of an offence by any member of an
unlawful assembly and;
(ii) such offence must have been committed in
prosecution of the common object of that assembly or
must be such as the members of that assembly knew it
be likely to be committed.
35
52. In Masalti vs. State of U.P. , this Court exposited:
“…….What has to be proved against a person who is alleged
to be a member of an unlawful assembly is that he was one
of the persons constituting the assembly and he entertained
along with the other members of the assembly the common
object as defined by Section 141 IPC Section 142 provides
that whoever, being aware of facts which render any
assembly an unlawful assembly, intentionally joins that
assembly, or continues in it, is said to be a member of an
35
(1964) 8 SCR 133
38
unlawful assembly. In other words, an assembly of five or
more persons actuated by, and entertaining one or more of
the common object specified by the five clauses of Section
141, is an unlawful assembly. The crucial question to
determine in such a case is whether the assembly consisted
of five or more persons and whether the said persons
entertained one or more of the common objects as specified
by Section 141. While determining this question, it becomes
relevant to consider whether the assembly consisted of
some persons who were merely passive witnesses and had
joined the assembly as a matter of idle curiosity without
intending to entertain the common object of the assembly…..
”
53. The legal position laid down in Masalti admits of no
doubt and has been followed time and again. However, where
a large number of persons are alleged to have participated in
the crime and they are sought to be brought to book with the
aid of Section 149 IPC, this Court has applied rule of caution
taking into consideration particular fact-situation and convicted
those accused whose presence was clearly established and
overt acts were proved.
36
54. In Shere And Ors . vs. State of U.P , this Court
held:
“………But when there is a general allegation against a large
number of persons the Court naturally hesitates to convict all
of them on such vague evidence. Therefore we have to find
some reasonable circumstance which lends assurance.
From that point of view it is safe only to convict the
abovementioned nine accused whose presence is not only
36
1991 Supp.(2) SCC 437
39
consistently mentioned from the stage of FIR but also to
whom overt acts are attributed…..”
37
55.
In Musa Khan & Ors. vs. State of Maharashtra , this
Court observed:
“……..Thus a court is not entitled to presume that any
and every person who is proved to have been present
near a riotous mob at any time or to have joined or left
it at any stage during its activities is in law guilty of
every act committed by it from the beginning to the
end, or that each member of such a crowd must from
the beginning have anticipated and contemplated the
nature of the illegal activities in which the assembly
would subsequently indulge. In other words, it must
be proved in each case that the person concerned
was not only a member of the unlawful assembly at
some stage, but at all the crucial stages and shared
the common object of the assembly at all these
stages……………..”
38
56. In Nagarjit Ahir vs. State of Bihar , this Court
applied rule of caution and in the facts and circumstances of the
case held that it may be safe to convict only those persons
against whom overt act is alleged with the aid of Section 149,
IPC lest some innocent spectators may get involved.
57. In Maranadu And Anr. vs. State by Inspector of
39
Police, Tamil Nadu , this Court for determination of ‘common
object’ of unlawful assembly stated the legal position thus:
37
(1977) 1 SCC 733
38
(2005) 10 SCC 369
39
(2008) 16 SCC 529
40
“……..For determination of the common object of the
unlawful assembly , the conduct of each of the
members of the unlawful assembly, before and at the
time of attack and thereafter, the motive for the
crime, are some of the relevant considerations. What
the common object of the unlawful assembly is at a
particular stage of the incident is essentially a
question of fact to be determined, keeping in view the
nature of the assembly, the arms carried by the
members, and the behaviour of the members at or
near the scene of the incident. It is not necessary
under law that in all cases of unlawful assembly, with
an unlawful common object, the same must be
translated into action or be successful. Under the
Explanation to Section 141, an assembly which was
not unlawful when it was assembled, may
subsequently become unlawful. It is not necessary
that the intention or the purpose, which is necessary
to render an assembly an unlawful one comes into
existence at the outset. The time of forming an
unlawful intent is not material. An assembly which,
at its commencement or even for some time
thereafter, is lawful, may subsequently become
unlawful. In other words it can develop during the
course of incident at the spot eo instanti.”
58. Having carefully examined the testimony of eye-
witnesses, we find that prosecution has been able to establish
that party of assailants comprised of more than five persons
and that they formed unlawful assembly. It is also seen from
the evidence that at least five persons chased the deceased
and then attacked him. These members of the unlawful
assembly who chased and attacked the deceased definitely
shared common object of causing murder of Suresh Atmaram
41
Gharat. A-1 had died during pendency of the appeal before
High Court and, therefore, nothing further needs to be said
about his role.
59. The High Court in para 36 of its judgment observed
that common object of the said unlawful assembly was to
cause grievous hurt. A little later in para 37, the High Court
held that common object of the unlawful assembly was to
make murderous attack on the deceased. At first blush, there
seems to be some inconsistency in the judgment but on a
deeper scrutiny, we find that it is not so. It is well-known that
for determination of common object of the unlawful assembly,
the conduct of each of the members of the unlawful assembly
before and at the time of attack is of relevant consideration.
At a particular stage of the incident, what is object of the
unlawful assembly is a question of fact and that has to be
determined keeping in view the nature of the assembly, the
arms carried by the members and the behaviour of the
members at or near the scene of incident. The accused
persons (nineteen in number) armed with deadly weapons
came to the scene of occurrence sharing the common object of
42
causing grievous hurt to the victim party. A closer scrutiny of
evidence shows that A-2, A-3, A-4, A-5, A-6, A-10, A-11 and
A-12 assaulted the prosecution witnesses – some of them
sustained grievous injuries – and the deceased.
However, when the deceased and prosecution witnesses ran
helter and skelter, at least five members of the unlawful
assembly chased the deceased and they attacked him with the
weapons in their hand. The purpose and design of these
members of unlawful assembly in chasing Suresh Atmaram
Gharat and a murderous assault by them on him may not have
been shared by other members of unlawful assembly. In a
case such as the present one, although having regard to
facts, the number of participants could not be less than five, it
is better to apply rule of caution and act on the side of safety
and convict only A-2, A-3, and A-12 under Section 302 read
with Section 149 I.P.C whose presence as members of party of
assailants is consistently mentioned and their overt acts in
chasing and assaulting the deceased are clearly proved. A-4,
A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to
offence under Section 302 read with Section 149 I.P.C. since
43
evidence against them in chasing and assaulting the
deceased is not consistent. However, all the eight appellants
are guilty of the offences punishable under Section 148 and
Section 326 read with Section 149, I.P.C. This is proved
beyond doubt and the High Court cannot be said to have
erred in holding so.
60. In what we have already discussed above, we see
no merit in the plea of alibi set up by A-2. The plea of alibi set
up by A-2 was not even accepted by the trial court. The
presence of A-2 in the incident is established. He has been
identified holding the iron bar. The prosecution witnesses have
given specific involvement of A-2 in the incident. On the basis
of the deposition of some of the eye-witnesses, the evidence
of DW-1 cannot be said to have been wrongly rejected by
trial court as well as by High Court. In cross-examination, DW-
1 admitted that there was no supervisor at night on that date.
Insofar as, document Article-8 is concerned, suffice it to
observe that original document was not produced and name
and designation of the officer who is said to have signed the
said certificate was not disclosed nor the person who issued the
44
certificate was produced. As a matter of fact, plea of alibi has
not at all been probabilised by A-2 much less proved.
61. Although, on behalf of the appellants it was sought
to be argued that there was lack of light on the day of
occurrence and, therefore, it was not possible for the witnesses
to see the incident. However, from the prosecution evidence it
is clearly established that the temple was illuminated due to
annual fair and there were other lights at the temple. It was full
moon night. We find it difficult to accept the submission of the
appellants that there was not enough light at the place of
incident and, therefore, the incident could not have been seen.
62. On behalf of appellant no. 8 (A-12), it was
contended that site plan of the scene of offence could not have
been accepted as PW-1 deposed that he prepared the sight
map as per the information supplied by the police. The
contention is devoid of any substance. As a matter of fact, no
objection was raised when the said document was being
exhibited. Moreover, the investigating officer has not at all
been cross-examined in this regard. The decisions namely
45
40
Ramratan and others v. State of Rajasthan , Chhotu vs. State
41
of Haryana have no application in the facts of the present
case.
63. It was contended that the High Court was not
justified in interfering with the judgment of acquittal as the view
taken by the trial court was the possible view. Reliance, in this
connection, was placed on a recent decision of this Court in
42
Mahtab Singh & Anr. v. State of U.P. . The argument is only
noted to be rejected. The view which the trial court took on the
basis of the evidence on record is neither possible nor
plausible. There could not be more perversity in the
consideration of the evidence of eye-witnesses by the trial court
when it observed :
“………All the witnesses deposed that they were lying or
chit-chatting or just resting or playing cards in the temple at
the time of the incident. It has also come on record that after
the function was over at about 1.00 a.m. the prosecution
witnesses remained in the temple for the purpose of
‘Jagran’. All this shows that the prosecution witnesses must
not be in a position to see who actually assaulted them. This
is a broad picture that is projected by the evidence of all the
eye witnesses. In such state of physical and mental
40
(1962) 3 SCR 590
41
(1996) SCC Crl. 1161
42
JT 2009 (5) SC 431
46
tiredness, no witness will be able to tell specifically who
actually assaulted him unless he sees from a very short or
negligible distance, the attacking persons. Same thin can be
said about the attack on Suresh Atmaram Gharat who is
reported dead because of the incident. The evidence
regarding assault on him is not at all specific. It is in short the
evidence of all the prosecution witnesses that Suresh
Atmaram Gharat ran from the temple with the fear of his life
and he was chased by the accused and was attacked at
some distance near Uran Panvel road from the temple. It is
an admitted position that it was night time. It is also proved
fact that Suresh was caught by the accused at a
considerable distance from the temple. None of the
witnesses saw the attack on Suresh, by the accused from a
short distance say of about 5’ to 10’. This is natural because
every prosecution witness was engaged and worried about
his own life. So it is but natural that every witness should be
running to safeguard his own life first and when he is in such
state of mind, it is not at all possible to specify which
accused gave blows to Suresh Atmaram Gharat on what
part of his body and with what weapons.”
64. With regard to evidence of PW-3 and PW-6, we
have already noticed the reasoning of trial court in the earlier
part of our judgment and, in our judgment, consideration of
their evidence by the trial court was not proper.
65. The least that can be said is that the whole
approach of the trial court in consideration of the evidence of
eye-witnesses was faulty and flawed. We have independently
examined the evidence for our satisfaction and we find that the
judgment of the trial court acquitting all the accused persons
47
suffered from factual and legal errors justifying interference by
the High Court in appeal within permissible limits.
66. In the result and for the reasons stated, the appeal
is allowed in part. The conviction of Pandurang Chandrakant
Mhatre (A-2), Ramesh alias Raman Chandrakant Mhatre (A-3)
and Maninath Shankar Gharat (A-12) for the offence punishable
under Section 302 read with Section 149, IPC and the sentence
awarded to them by the High Court to suffer imprisonment for
life is maintained. The conviction of Parshuram Chandrakant
Mhatre (A-4), Ashok Yadav Mhatre (A-5), Damodar Vasant
Gharat (A-6), Ramchandra Raghunath Mhatre (A-10) and
Mahesh Shankar Mhatre (A-11) for the offence punishable
under Section 302 read with 149, IPC is set aside. The
conviction of the appellants under Section 148 and Section 326
read with Section 149 IPC is upheld. The sentence awarded to
them under Section 148 IPC is maintained. However,
substantive sentence for the offence punishable under
Section 326 read with Section 149 IPC is modified and each
one of them is sentenced to suffer RI for three years. The
substantive sentences shall run concurrently. The bail bonds
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of A-4, A-5, A-6, A-10 and A-11 are cancelled. They will now
surrender within one month and undergo remaining part of the
sentence, if any.
……………………J
(D.K. Jain)
…….……………..J
(R. M. Lodha)
New Delhi
October 8, 2009.
49