Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
CASE NO.:
Appeal (crl.) 194 of 2000
PETITIONER:
PANDURANG KALU PATIL AND ANR.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 17/01/2002
BENCH:
K.T. THOMAS & S.N. PHUKAN
JUDGMENT:
JUDGMENT
2002 (1) SCR 338
The Judgment of the Court was delivered by
THOMAS, J. A Division Bench of the High Court of Bombay has ventured to
disagree with a ratio which has become locus classicus and well stood the
long period of half-a-century. That ratio is the one laid down in the
celebrated decision in Pulikuri Kottaya and Ors. v. Emperor, AIR (1947)
Privy Council 67. In that exercise the Division Bench of the Bombay High
Court had unwittingly overlooked another legal guideline delineated by a
Full Bench of the Bombay High Court itself in State of Bombay v. Chhaganlal
Gangaram Lavar, AIR (1955) Bombay - 1 wherein Chief Justice Chagla speaking
for the Full Bench had said thus :-
"so long as the Supreme Court does not take a different view from the view
taken by the Privy Council, the decisions of the Privy Council are still
binding upon us, and when we say that the decisions of the Privy Council
are binding upon us, what is binding is not merely the point actually
decided but an opinion expressed by the Privy Council, which opinion is
expressed after careful consideration of all the arguments and which is
deliberately and advisedly given."
Quite possibly the attention of the learned judges of the Division Bench of
the High Court would not have been drawn to the observations made by
Chagla, C.J. of the Full Bench of the Bombay High Court in the aforecited
decision, for, otherwise we are sure that learned judges of the Division
Bench would not have erred into the matter of judicial discipline.
While delivering judgment in two connected criminal appeals relating to the
murder of one Ramdas, the Division Bench of the Bombay High Court (D.K.
Trivedi and DG Deshpande, JJ) proceeded to consider the legal proposition
propounded in Pulikuri Kottaya and held thus :-
"with respect we are unable to agree with the interpretation of the Privy
Council of Section 27 not because it does not lay down correct Law but
because it has failed to take into consideration some material aspect of
Section 27 of the Evidence Act.......The observation of the
Privy Council that it is fallacious to treat the "fact discovered within
the section as equivalent to the "object produced", in our humble and
respectful opinion is not based on proper construction of the word ’fact
deposed to’ used in Section 27. Because the definition of the fact given in
Section 3 of the Evidence Act is not considered at all. The object
discovered is a fact, and therefore, when a witness is deposing in the
Court and deposes to a fact, it means he could and he should depose about
the object discovered". The legal proposition adumbrated in Pulikuri
Kottaya has been considered and tested by this Court, time and again, and
on all such occasions this Court has only reiterated the said principle
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
with approval (vide Jaffar Hussain Dastagir v. State of Maharashtra, [1969]
2 SCC 872; AIR (1970) SC 1788, [1983] 2 SCC 330, [1995] 4 SCC 392; Shamshul
Kanwar v. State of U.P., [1995] 4 SCC 430 and State of Rajasthan v. Bhup
Singh, [1997] 10 SCC 675 Para 15 and in the last cited decision this Court,
while again re-affirming the ratio in Pulikuri Kottaya has said thus :-
"The ratio therein (Kottaya) has become locus classicus and even the lapse
of half-a-century after its pronouncement has not eroded its forensic
worth."
Even the recent decision in State of Maharashtra v. Damn, [2000] 6 SCC 269
this Court followed Pulikuri Kottaya with approval. The fallacy committed
by the Division Bench as per the impugned judgment is possibly on account
of truncating the word "fact" in Section 27 of the Evidence Act from the
adjoining word "discovered". The essence of Section 27 is that it was
enacted as a proviso to the two preceding Sections (see Sec. 25 and 26)
which imposed a complete ban on the admissibility of any confession made by
an accused either to the police or to any one while the accused is in
police custody. The object of making a provision in Section 27 was to
permit a certain portion of the statement made by an accused to a police
officer admissible in evidence whether or not such statement is
confessional or non-confessional. Nonetheless he ban against admissibility
would stand lifted if the statement distinctly related to a discovery of
fact. A fact can be discovered by the police (investigating) officer)
pursuant to an information elicited from the accused if such disclosure was
followed by one or more of a variety of causes. Recovery of an object is
only one such cause. Recovery, or even production of object by itself need
not necessarily result in discovery of a fact. That is why way Sir John
Beaumont said in Pulikuri Kottaya that "it is fallacious to treat the fact
discovered in the section as equivalent to the object produced". The
following sentence of the learned law lord in the said decision, though
terse, is eloquent in conveying the message highlighting the pith of the
ratio.
"Information supplied by the person in custody that ’I will produce a knife
concealed in the roof of my house’ does not lead to the discovery of a
knife; knives were discovered many years ago. It leads to the discovery of
the fact that a knife is concealed in the house of the informant to his
knowledge and if the knife is proved to have been used in the commission of
the offence, the fact discovered is very relevant."
(emphasis supplied)
Learned Judges in the impugned judgment laboured to show that the word
"fact" can envelop an object also, and tried to project that the said
aspect has not been taken into account by their Lordships of the Privy
Council. Here again we may repeat that the Division Bench had erred by not
taking the import of the collocation of the words "discovery of a fact" as
envisaged in Section 17. No doubt in a given case an object could also be a
fact, but discovery of a fact cannot be equated with recovery of the object
though the latter may help in the final shape of what exactly was the fact
discovered pursuant to the information elicited from the accused. Thus the
labour made in the impugned judgment by giving emphasis to the word "fact"
disjuncted from the word "discovery" rendered the exercise in vain. Ratio
in Pulikuri Kottaya thus remains unscathed.
It is unfortunate that learned judges of the Division Bench of the Bombay
High Court, in the impugned judgment, have chosen to set a locus classicus
at nought without reference to any of the catena of judicial pronouncements
rendered by High Court as well as the Apex Court pertaining to the ratio in
that decision. Nonetheless the guidelines laid down by the Division Bench
of the impugned judgment did not call for any interference as they related
to the manner of recording the evidence in the trial court. However, we
feel that guideline number ’F’ (mentioned in the impugned judgment) seems
to be unnecessary and would only cause additional workload for the trial
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
courts.
While dealing with the facts of this case we may point out that the trial
court convicted Al-Shankar Gopal Patil and A3-Balaram Waman Patil under
Section 302 of the 1PC while A2-Nazir Babu Sheikh was convicted only under
Section 307 of the IPC. Trial Court acquitted A4-Pandurang Kalu Patil and
A6-Janardhan Shaligram Patil. But the High Court in the impugned judgment
reversed the acquittal of A4 and A6 and convicted them under Section 326
read with Section 149 of the IPC and sentenced them to rigorous
imprisonment for ten years. The High Court confirmed the conviction and
sentence passed on A l and A3 but in the matter of A2 - Nazir Babu Sheikh,
the High Court raised up the conviction from Section 307 to Section 302
read with Section 149 of the IPC and sentenced him to imprisonment for
life. The convicted A l and A3 have filed special leave petitions in this
Court but they were dismissed by this Court.
The present appeals are by A2 - Nazir Babu Sheikh and A4 - Pandurang Kalu
Patil and A6 - Janardhan Shaligram Patil (Criminal appeal Nos. 1897 2000 is
by A2 while the other two appeals are by remaining two appellants).
The gist of the prosecution case is the following :-
There was a dispute between Al and the father of the deceased over some
landed property. The said dispute made them enemies. This is the background
of the occurrence. While deceased Ramdas, and his brother PW2 Narayan were
proceeding to their village for taking lunch around 1.30 P.M. on 29.6.92
the assailants went in a jeep and stopped just near the place of
occurrence. All the assailants alighted from the jeep. Al, A2 and A3 had a
gun each with them. A4 and A6 had either a knife or a sword with them. It
is unnecessary to mention about the weapons possessed by other persons. The
assailants who were armed with guns opened fire at the deceased as well as
PW2. The deceased was then a few feet ahead of PW2 and both were running up
presumably to escape from the chasing assailants. Both of them sustained
serious gun shot injuries, though PW2 did not succumb to them. But the
deceased fell down at the spot and died. Seeing this the assailants took to
their heals leaving the jeep remaining at the spot as a mute remnant of the
acts done by them.
The prosecution examined four persons as eye witnesses, they are PW2 to
PW5. The trial court and the High Court placed reliance on the testimony of
PW2 Narayan and PW3 Janu Bhoir.
We have absolutely no doubt that PW2 Narayan who was injured and seen the
occurrence and hence he was competent to say who were all the assailants.
He also vouchsafed the presence of PW3 Janu Bhoir. We are not disposed to
disbelieve the testimony of those two witnesses as they were relied upon by
the two Courts.
Mr. SR Chitnis, learned senior counsel for the appellants contended that
the version of the eye witnesses is inconsistent with the injuries noted by
the doctors. According to the version of the eye witnesses the deceased was
running forward while the assailants shot him from behind but the fire arm
injuries sustained by the deceased could well have been shot face-to-face.
This aspect is not enough to doubt the correctness of the testimony of the
eye witnesses, for, it is quite possible as per the reflex action the
running deceased would have turned back either to see whether he has gone
out of the range of penil or to know the nearness of it. The mere fact that
PW2 eye witness said that the deceased was running forward and the
assailants shot them from behind cannot rule but the possibility of such
twirling of the deceased when the guns were fired.
Learned counsel then contended that the High Court had gone wrong in
relying on the evidence of PW18-Dy. S.P. who said that when A2 was arrested
and interrogated a gun was disintered pursuant to the information supplied
by him. It is on the said aspect that the Division Bench of the High Court
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
considered the ratio in Pulikuri Kottaya. What PW 18 said in the Court is
that the statement made by A2 had been recorded in Exh. 91 memorandum. We
have noticed from the said memorandum the following statement of A2 as
recorded therein :-
"I have kept the fire arm concealed behind the old house in a heap of
wood".
The fact discovered by PW 18 is certainly not the gun. The fact discovered
is that A2 had concealed the gun (article no. 5/2) behind the old house
under a heap of wood. It was the same gun with which A2 had fired at PW2
and that aspect has been proved with the help of other evidence.
Mr. SR Chitnis, made an alternative endeavour to show that the act
committed by A2 can at the worst amount only to the offence under Section
307 of the IPC because PW2 had not succumbed to the injuries. When A2 along
with other assailants alighted from the jeep together and chased the
deceased and PW2 together and fired their lethal weapons together, the
common intention shared by A2 with other assailants (Al and A3) looms
large, albeit the fact that the bullet of his fire arm could reach only
upto the body of PW2 who was not destined to die. What A1 and A3 had done
was certainly with the common intention shared by A2-Nazir Babu also. Of
course, the High Court has convicted him under Section 302 with the help of
Section 149 of the IPC. That error has to be corrected by us. We,
therefore, confirm the conviction and sentence passed on A2-Nazir Babu
Sheikh under Section 302 with the aid of 34 of the IPC and dismiss Cr.
Appeal No. 189/2000.
But the position of A4 and A6 is different. Though they had knives with
them they had not chosen to do anything. Even after the deceased fell down
they did not move forward to inflict even a scratch on him. They did not do
any harm to PW2. There is nothing to indicate that they knew about the
design of the other assailants. They were acquitted by the trial court. The
view taken by the trial court on the facts of the case is reasonable and
hence it was impermissible for the appellate court to interfere with the
acquittal.
We, therefore, allow Crl. Appeal No. 194/2000 and set aside the conviction
and sentence passed on A4-Pandurang and A6-Janardhan Shaligram Patil. They
are acquitted. Their bail bond will stand discharged. (A copy of this
judgment will be forwarded to the Registrar of the Bombay High Court as
copies of the impugned judgment were directed to be circulated to all the
sessions judges under Bombay High Court. Now it is necessary to bring this
also to the notice of all those sessions judges).