Full Judgment Text
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CASE NO.:
Appeal (crl.) 844-846 of 2005
PETITIONER:
Ramesh Baburao Devaskar & Ors
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 12/10/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
WITH
CRIMINAL APPEAL NOS. 837, 843 and 847 OF 2005
S.B. SINHA, J :
1. Shivaji Patil, brother of the complainant \026 Sarjerao Patil (PW-13) and
one Baburao Patil were residents of Phulewadi situate in the District
Kolhapur, State of Maharashtra.
There were two groups in the village; one belonging to Sarjerao Patil
and the other known as Mahipati Shankarrao Bondre (Accused No. 4) group.
Brother of the Accused No. 4 was an M.L.A. He was also a former
Minister. In a municipal election which took place between the first
informant and one Nagoji Patil, Sarjerao Patil was elected. Bitterness
between the two groups came to such a pass that the brother of one Bindu
More (Accused No. 9) was murdered. Accused No. 4 Mahipati Shankarrao
Bondre was the first informant in that case. There was bad blood between
the two groups. In the murder case of the brother of Accused No. 9, the
deceased Shivaji was granted bail. The accused allegedly intended to take
revenge thereof.
2. On the fateful day, viz., at about 10 O\022clock on 21.10.1993, PW-11
Subhash Pandurang Kalke was taking his cart to bring grass from the land of
one Rajaram Patil. On his way, he met his friend PW-12 Sanjay Laxman
Belgaonkar. PW-11 asked PW-12 to accompany him. He promised to
come later as he was to deliver medicine at his house.
3. While PW-11 was coming back after loading the grass in his cart, at
or near the place of occurrence, Shivaji Patil and Baburao Patil who were
coming on a motorcycle overtook him. Accused persons, who were 11 in
number, had allegedly been waiting for them. They were accosted by the
accused persons. The accused persons formed a threatening semi-circle
around them. Accused No. 9 Bindu More exhorted others to assault but he
himself inflicted vital injuries upon Shivaji Patil. Baburao Patil intervened.
He was also threatened. He started running away from the scene of
occurrence. He was chased. PWs 11 and 12 seeing them chasing Baburao
hid themselves nearby in a sugarcane field. Baburao Patil was found
murdered in front of the house of Sou Padma (PW-14). Babasaheb, brother
of the deceased (PW-9) Shivaji Patil who was also coming back from his
village along with others found his brother murdered. PW-11 informed him
about the details of the incident. He came to his house and informed his
sister-in-law. She in turn asked PW-10 Sadashiva to go to the Corporation
Office and inform about the incident to the first informant PW-13. PW-13
reached the police station at about 12.30 p.m. He allegedly did not furnish
the details of the incident. He only named Accused No. 9. He disclosed that
PW-16 Vijay that murders of Shivaji Patil and Baburao Patil have been
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committed. He was asked to furnish details of the incident. He did not do
so. He asked PW-16 (I.O.) to come to the place of occurrence. An entry of
the said information was made in the station diary. PW-16 came to the place
of occurrence with PW-13. The details of incident were narrated to PW-9
by one of the alleged eye-witness, viz., PW-11, on the basis whereof the
First Information Report was lodged at the spot.
4. The First Information Report was lodged at about 2.15 p.m. In the
First Information Report, nine persons were named as accused. It, however,
reached the Court of the Magistrate only on 25.10.1993. Before the learned
Sessions Judge, a large number of witnesses were examined. PWs 11 and 12
were eye-witnesses. Relying on or on the basis of their testimonies before
the Court as also the testimonies of other witnesses, the learned Sessions
Judge passed a judgment of conviction against Accused Nos. 1, 2, 3, 5, 6, 7,
9 and 11 and acquitted Accused Nos. 4, 8 and 10. Appeals were preferred
thereagainst by the appellants. A revision application was also filed by
Sarjerao Patil against the judgment and order questioning acquittal of
Accused Nos. 4, 8 and 10.
5. Six criminal appeals were filed before the High Court. By reason of
the impugned judgment and order, the High Court dismissed the appeals of
the appellants before us.
6. Before us, four criminal appeals have been filed. Criminal Appeal
No. 844-846 of 2005 has been filed by Ramesh Baburao Devaskar (A-5),
Bajirao Govind Mane (A-6) and Bapu Shripati Yadav (A-7). Criminal
Appeal No. 837 of 2005 has been filed by Sunil Krishnat More (A-3).
Criminal Appeal No. 843 of 2005 has been filed by Hindurao Pandurang
Chougule (A-1), Ainuddin Abdul Gavandi (A-2) and Criminal Appeal No.
847 of 2005 has been filed by Bindu Ramchandra More (A-9) and Sunil
Bhimrao Bodke (A-11).
7. Mr. R. Sundravardhan, learned senior counsel appearing on behalf of
the appellants in Criminal Appeal No. 844-846 of 2005 has raised the
following contentions:
(i) The First Information Report was lodged by way of an after-
thought. It was ante-timed and ante-dated. In any event it was hit
by Section 161 of the Indian Penal Code as despite knowledge of
all the details of the incident were known to the first informant
PW-9, he did not furnish the same and lodged another report at the
spot.
(ii) The delay of more than three days to send the First Information
Report to the Court of Magistrate clearly proves that the First
Information Report was ante-dated.
(iii) PWs 11 and 12 were chance witnesses. There was absolutely no
reason as to why they should be there.
(iv) The investigating officer examined them at the police station and
not at the place of occurrence.
(v) They are not reliable witnesses as although, they had not seen the
murder committed of Baburao, as they had hidden themselves in
the sugarcane field, they projected themselves as a witness to the
murder of Baburao also and as such they are not trustworthy.
(vi) In any event, apart from PW-9, there is nothing to show that any
overt act was committed by any of the other appellants.
(vii) PW-14 having been declared hostile, there is no eye-witness so far
as the murder of Baburao is concerned.
8. Mr. Sundravardhan\022s submission was adopted by Mr. Anil K. Jha and
Dr. Rajeev B. Masodkar, learned counsel.
9. Mr. Sushil Karanjkar, learned counsel appearing on behalf of the
State, however, on the other hand, would submit:
(i) The motive of commission of the crime has been proved beyond
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any shadow of doubt. The brother of the Accused No. 9 had been
killed and the deceased Shivaji had been released on bail and it is,
thus, evident that the accused persons intended to commit the
crime for the purpose of taking revenge.
(ii) Sarjerao Patil (PW-13) being not an eye-witness and he had been
informed about the incident by PW-10 who was also not an eye-
witness, it was not possible for him to give details of the incident.
He, being concerned with the murder of his brother Shivaji and
Baburao, thought it fit to ask the investigating officer to come to
the place of occurrence. The First Information Report was
recorded upon obtaining the details of incident from PW-11. The
statement given by him before the officer incharge of Karvir Police
Station cannot be said to be a First Information Report and the one
recorded at the place of occurrence had rightly been accepted as
the First Information Report.
(iii) The sequence of events which took place in quick succession
clearly goes to show that the accused persons who had common
intention to commit the said offence not only committed the
murder of Shivaji but also chased Baburao when he started fleeing
away and also committed his murder.
(iv) Although there are inconsistencies, omissions and improvements,
the same, being minor in nature, have rightly been ignored by the
Courts below.
10. The principal question which arises for our consideration is as to
whether the second First Information Report can be treated to be the First
Information Report in relation to the incident and in any event any reliance
can be placed thereupon.
An information received by the officer-incharge of a police station for
commission of a cognizable offence must be reduced in writing so as to
enable him to start investigation. PW-13 met the investigating officer at the
police station. He informed him about the incident. However, he did not
disclose the details for whatever reason. A First Information Report
although need not be encyclopedic, but in this case PW-9 did not say that he
was not aware of the details. He named Accused No. 9. He disclosed about
the murder of his brother. The alleged eye witnesses had disclosed all the
details about the incident to all whom they had met including another
brother of the deceased viz. Baba Saheb. Why he did not lodge the first
information report has not been disclosed.
Strangely enough, the First Information Report was recorded at the
spot. Panchnamas were also held immediately thereafter. Inquest
Panchnamas were taken. In the inquest report, only again Accused No. 9
was named. In the inquest Panchnama, it was stated that the Panchas felt
that \021the deceased was attacked by some unknown assailants with sharp
edged weapons and have stabbed and seriously injured him due to which he
might have died\022. Why it was recorded like that is a mystery.
In the First Information Report, PW-11 was named as the only eye-
witness to the occurrence. So far as PW-12 is concerned, he evidently was a
Chance Witness. His name was not disclosed in the First Information
Report.
11. Lodging of a First Information Report is necessary for setting the
criminal law in motion. It can be lodged by anybody. It, however, should
not be too sketchy so as to make initiation of investigation on the basis
thereof impossible. Only information in regard to commission of an offence
may not for all intent and purport satisfy the requirement of the First
Information Report. When, however, the First Information Report is lodged
by a person who claims himself to be aware of not only the commission of
the offence, the name of the deceased and at least one of the accused who
had committed the same, the could have been recorded on the basis thereof.
It may, however, be another thing to say that any information in regard to
the commission of an offence is given by way of a telephone or by a person
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who does not disclose his identity and such message is so cryptic that it may
not satisfy the requirement of Section 154 of the Code of Criminal
Procedure. [See Om Prakash alias Raja v. State of Uttaranchal (2003) 1
SCC 648]
12. We may in this connection refer to Mundrika Mahto and Others v.
State of Bihar [(2002) 9 SCC 183] wherein it has been held:
\0239. We have carefully and minutely examined the
record including, as earlier stated, the evidence of
Suresh Kumar (PW-5) read with Santosh Kumar
(PW-1) and Ram Briksha Mahto (PW-2). Their
evidence inspires confidence. It was natural for
Ram Briksha Mahto not to name the persons who
were dragging the headless body because he did
not know them. On all material aspects, the
testimony of these witnesses is trustworthy and
reliable. It is not the law that the conviction cannot
be based on the testimony of relations. That alone
cannot be the ground to over win the conviction.
The scratch injury, according to the testimony of
the Doctor is possible as a result of dragging. The
non-mention of it by the Investigating Officer in
the inquest report is of no consequence, in the light
of other evidence on record. The High Court seems
to be right in its conclusion that when a large
number of persons were dragging the trunk after
catching hold of the same, only a small portion
may be touching the ground as a result whereof,
there may not be a large number of injuries on
account of dragging. Another factor which
deserves to be noticed is that the Sessions Court,
on perusal of the case diary, has recorded that the
Investigating Officer was deliberately trying to
held the defence. The contention that was urged in
this regard before the Sessions Court and also
before us was that the inquest report having been
held at 11.15 p.m. and the statement/furdbeyan
recorded at 11.30 p.m., inquest report should be
treated as the FIR and not the FIR registered on the
basis of the Furdbeyan and, therefore, the mention
of the name of the appellants therein deserves to be
ignored. The Court of Sessions noticed, on perusal
of the case diary, that it appears that Investigating
Officer first recorded the Furdbeyan and thereafter
held the inquest on the dead body of the deceased,
but recorded in the case diary, the time of
recording of the Furdbeyan as 11.30 p.m. and that
of holding of inquest as 11.15 p.m. in the reverse
order to help the accused. In fact, the case diary
shows that the Fardbeyan was recorded earlier and
inquest later and, thus, inquest could not be treated
as the FIR. Similarly, the telephonic conversation
also could not be treated as FIR, as contended, as it
was a cryptic information that was received and
recorded in the daily diary regarding the
commission of offence.\024
13. In this case, PW-13 was asked by the investigating officer to give
details thereof. We also cannot accept the submission of Mr. Karanjkar that
PW-13 did not inform about the incident to others. He said that he had done
so. If he had given his version to other prosecution witnesses, as a result
whereof all the details were known to them, the same should have been the
basis for lodging a First Information Report. We may also notice that in
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response to the query by the investigating officer, PW-10 did not say that he
was not aware thereof. For one reason or the other, he did not do it. He
asked him to go to the place of occurrence. Although anxiety on his part to
take the police officer to the place of occurrence with a view to apprise him
about the incident is appreciable, what is not is his refusal to disclose the
details thereof. He did not say that he was not aware thereof.
14. 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 eye-witness
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 No. 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.
15. In a case of this nature, enmity between two groups is accepted. In a
situation of this nature, where the First Information Report was ante-timed
or not also requires serious consideration. First Information Report, in a
case of this nature, provides for a valuable piece of evidence although it may
not be a substantial evidence. The reason for insisting of lodging of First
Information Report without undue delay is to obtain the earlier information
in regard to the circumstances in which the crime had been committed, the
name of the accused, the parts played by them, the weapons which had been
used as also the names of eye-witnesses. Where the parties are at
loggerheads and there had been instances which resulted in death of one or
the other, lodging of a First Information Report is always considered to be
vital.
16. The Code of Criminal procedure provides for certain internal and
external checks; one of them being the receipt of a copy of the First
Information Report by the Magistrate concerned. It is not in dispute that in a
grave case of this nature, the copy of the First Information Report was
received by the Magistrate four days later. No explanation has been offered
therefor. Section 157 of the Code of Criminal Procedure mandates that the
First Information Report should be sent to the nearest Magistrate within a
period of 24 hours. It has not been disputed that the occurrence took place
near the District Headquarters. There cannot be any reason whatsoever as to
why the First Information Report was sent after four days. [See Jagdish
Murav v. State of U.P. & Ors. 2006 (8) SCALE 433].
17. In State of Rajasthan v. Teja Singh and Others [(2001) 3 SCC 147],
this Court observed:
\023We have examined the evidence of the three eye-
witnesses as also that of Iqbal Singh (PW-10), the
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Investigating Officer. We have also perused the
evidence of Ram Pratap Sarpanch (DW-1) and we
do not find any reason to differ with the finding of
the High Court which sitting as the first court of
appeal on facts, had every right to re-appreciate the
evidence. In our opinion, the High Court, in that
process, has not committed any error. As a matter
of fact, the explanation put forth by the learned
counsel in regard to the delay in the FIR reaching
the court is not tenable because assuming that there
were some court holidays that cannot be a ground
for the delay in the FIR reaching the Magistrate,
because requirement of law is that the FIR should
reach the concerned Magistrate without any undue
delay. We are of the opinion that the explanation
given by the prosecution regarding the delay in the
FIR reaching the Magistrate is neither convincing
nor acceptable.\024
18. We will assume that the presence of PWs 11 and 12 at or near the
place of occurrence was possible. We have been taken through the evidence
of PWs 11 and 12. The deceased Shivaji Patil and Baburao Patil allegedly
were coming in a motor cycle. They crossed him but then, according to
them, the incident which took place was at a distance of 100 ft. However,
when the actual assault by Accused No. 9 took place by infliction of blow of
an axe, the distance was reduced to 50 feet. No overt act was attributed to
anybody else.
19. According to him, Baburao Patil then started running. All the
assailants followed. He jumped out of the bullock-cart and ran towards the
sugarcane only after the assailants crossed his bullock-cart. He did not and
could not see the actual assault on Baburao.
20. Another facet must also be noticed. The investigating officer
recorded his statement partly upto 6.30 p.m. He was asked to come to the
police station on the next day and his remaining statement was recorded in
the Karvir Police Station. According to him, his statement was recorded
only after the bodies were sent for post mortem. He went to the police
station at 9 p.m. and was there about half an hour. It is borne out from the
record that he got his statement under Section 164 of the Code of Criminal
Procedure but he could not remember thereabout. When, however, accosted
therewith, he said that he had made statement before the Sub-Judicial
Magistrate on 11.11.1983. He made a lot of improvements in his statement.
21. So far as Baburao is concerned, in the inquest panchnama, statements
of panch witnesses had been recorded to the effect that
unknown assailants had killed him. It may be true that the prosecution
would be bound thereby. But, the impression we gathered therefrom is that
at least at that point of time there was a general belief that Baburao had been
killed by unknown assailants. The dead body of Baburao was found near the
house of PW-14. PW-14 turned hostile.
22. Proof of motive by itself may not be a ground to hold the accused
guilty. Enmity, as is well-known, is a double edged weapon. Whereas
existence of a motive on the part of an accused may be held to be the reason
for committing crime, the same may also lead to false implication.
Suspicion against the accused on the basis of their motive to commit the
crime cannot by itself lead to a judgment of conviction.
23. The learned counsel appearing on behalf of the appellants addressed
us at a great length that the other accused persons did not share the common
object with Accused No. 9. We find some substance in his submission.
Their names did not appear in the First Information Report. Even PWs 11
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and 12 did not attribute any overt act on their part.
24. As it is difficult for us to rely upon the testimonies of PWs 11 and 12
and for other reasons enumerated hereinbefore, we are of the view that it
would be hazardous to record a judgment of conviction in this case.
25. These appeals are allowed. Appellants are set at liberty unless wanted
in connection with any other case.