& Ors Vs. State of Maharashtra
 Insc 539 (9 May 2007)
S.B. Sinha & Markandey Katju
S.B. Sinha, J.
1. Appellants who are five in number are before us being aggrieved by and
dissatisfied with the impugned Judgment of the High Court of Bombay, Aurangabad
Bench at Aurangabad dated 5.9.2005 passed in Criminal Appeal No. 398 of 1999
affirming a judgment of conviction and sentence dated 30.9.1999 passed by the
Sessions Judge, Beed in Sessions Case No. 18 of 1998 convicting the appellants
herein inter alia for commission of an offence under Section 302 read with
Section 149, Section 147 read with Section 149 of the Indian Penal Code.
2. Appellants herein were proceeded against for committing an offence of
culpable homicide amounting to murder of one Dnyandeo and for causing hurt to
one Bapu (P.W. 6) on 22.1.1997 at about 10.30 p.m. in the night in Village
Pangulgavhan within the Police Station Ashti in the District of Beed. First
Information Report in respect thereof was lodged at 7.30 a.m. on 23.1.1997 by
PW-2 Rohidas Gite alleging that while he had been sleeping in his house after
taking meal, his uncle Ajinath Gite (P.W. 3) came to his house to inform him
that thieves had come and some 'tumult' is going on, whereupon both of them
went towards the place of occurrence and found that both the 'deceased' and the
'injured' were being assaulted by accused No. 1 Vikram, accused No. 2 Mokinda,
accused No. 3 Tatyaba, accused No.
4 Bhagan, accused No. 5 Rambhau, alongwith some others (who being juvenile,
had been separately tried). They, although, tried to intervene, but were
threatened not to do so. He thereafter went to the House of the deceased and
informed his wife as well as Raosaheb Namdeo Gite who came to the place of
occurrence. Other persons including Ashruba Pandharinath, Mahadeo Pandharinath,
Shyamrao Gajaba, Ashok Baba, Mahadeo Lahanu also came to the spot. The injured
were, by that time dragged upto the river by the assailants. They were asked to
stop assaulting and were furthermore requested in the event they had any
dispute with him in regard to their land should take recourse to the law
whereupon the assailants left them in the river and fled. Both the deceased and
Bapu Kisan Gite (PW-6) were found to be unconscious.
3. P.W. 2 Rohidas was advised by others to inform the Police Station on
telephone whereupon he went to Village Bhalavani alongwith Ajinath, Gangaram
and Bayaji Bhiva at about 1:00 a.m. and informed the Officer in charge of
Police Station on telephone. On receipt of the said information, a police
officer visited the place of occurrence at Village Pangulgavhan. In the
meanwhile, the injured were shifted in front of the house of Laxmibai Ashruba
Gite. They were later on shifted by the police personnel to the Government Hospital
at Ashti. Whereas Dnyandeo Vithoba Gite was declared dead, PW-6 was admitted in
the hospital. Mr. Suresh Gange , P.W. 8 registered a case under Section 147,
148, 149 and 302. He seized three articles including a bamboo stick measuring
about 2 ft. and 5 inches with a diameter of about 2 inches. Other articles were
Appellants were arrested on 24.1.1997. The prosecution case was proved
primarily by PW-2 the informant, PW-3 Aginath, PW-4 Janardhan and the injured
witness P.W. 6 Bapu.
4. The learned Trial Judge by reason of a judgment of conviction and
sentence dated 30.9.1999 on arriving at a finding of guilt, awarded life
imprisonment and a fine of Rs. 1,000/- each under Section 302 read with Section
149 of the Indian Penal Code, simple imprisonment of 6 months for commission of
the offence under Section 149, fine of Rs. 500/- each under Section 147 read
with Section 149 and fine of Rs. 500/- under Section 149 of the Indian Penal
Code. The appeal preferred by the appellants thereagainst has been dismissed by
the High Court by reason of the impugned judgment.
5. Mr. Arvind V. Savant, learned senior counsel appearing on behalf of the
appellants in support of this appeal inter alia would submit;
(i) P.W. 2 having informed the officer-in-charge of Police Station Ashti on
telephone which having been recorded in writing, the First Information Report
lodged at 7.30 a.m. on 23.1.1997 is barred under Section 162 of the Code of
(ii) Some of the witnesses having been examined by the Investigating Officer
on 8.8.1997, their statements could not have been relied upon.
(iii) The fact that First Information Report reached the Magistrate only on
24.1.1997 would go to show that the same was an anti-timed one.
(iv) The witnesses having failed to disclose vital information in their
statements under Section 161 of the Code of Criminal Procedure, the learned
Sessions Judge as also the High Court committed a serious illegality in passing
the impugned judgment.
(iv) In any view of the matter, no specific overt act having been attributed
to any of the appellants herein, conviction under Section 302/149 of the Indian
Penal Code cannot be sustained and they should be convicted only under Section
6. Mr. Sushil Karanjkar, the learned counsel appearing on behalf of the
State would, however, support the impugned judgment.
7. Homicidal nature of death of the said Dnyandeo is not in dispute.
Sufferance of injuries by Bapu Kisan Gite, P.W. 6 is also not in dispute.
8. Dr. Subhash Mahadeo Patharkar P.W. 7 conducted the post mortem
examination. He found the following ante-mortem injuries.
"1. C.L.W. on the right parietal region placed vertically 1=" x
1" x bone deep. No evidence of fracture felt on palpation, object used was
hard and blunt.
2. C.L.W. on right front to parietal region, oblique, placed 2" x
1" x bone deep, no evidence of fracture, felt on palpation, object used
hard and blunt.
3. C.L.Ws. two in number of right index finger, =" x <" x
1/8", each, object was hard and blunt.
4. An abrasion on right Ileac region, curved 2" x 1/8".
5. C.L.W. on right leg 1" x = x <".
6. Abrasion on right medical malleouls, =" x <".
7. Multiple contusions over the back of variable size and shape placed in
variable directions caused by Lathi.
8. Multiple imprint abrasion over back of variable size, caused by chain of
9. Six contusions on right buttock and right thigh, horizontally placed, one
above the other 7" x 1 ="
object hard and blunt (Lathi)"
9. Amongst others, on the left lungs, two internal injuries were found;
"1. Contusion on left lower lobe 3" x 2=" cut section
2. Contusion on left upper lobe, 4" x 3" cut section contains
10. The said two injuries were referable to external injury No. 7.
11. PW-9 , Dr. Dattu Zambre examined Babu Kisan Gite and found the following
injuries on his person;
1. Contused lacerated wound on left parietal region, 8 cm. x 0.5 cm. x bone
deep, margins irregular anteroposterior in direction.
2. Contusion over left thigh, ant, side in middle 1/3, 8"
x 1 =" vertical direction margins irregular.
3. Multiple contusions over right anteromedial aspect of thigh, 5" x
1=", 4" 1=", 6" x 1 =", 4" x 1 =", 5"
x =" , intermixed with each other.
4. Contusion, on abdomen above unblicious 3" x 1"
horizontal, irregular margins.
5. Contused abrasion on left shin of tibia Lower 1/3rd, <" x
<" margins irregular.
6. Contused Abrasion, on right shin of tibia Lower 1/3, <" x
<", margins irregular."
12. All the injuries were caused by hard and blunt objects like lathi.
13. It is also not in dispute that the parties were having disputes over
14. It has also not been suggested before us that PW-2 was enemically
disposed of towards the appellants. Both the parties are from the said Village.
15. P.W. 2 in the First Information Report as also in his deposition before
the Court categorically stated that eight persons i.e. the appellants herein
and three juveniles were assaulting the deceased and PW-6. On his asking them
not to assault the deceased and P.W. 6, he was told that he had no business to
interfere as he was not concerned with the matter. He immediately informed
Tulsabai and Raosaheb. Tulsabai and Raosaheb also asked the appellants to leave
the deceased, but not only assault upon them did not stop, they were dragged
towards the river on the western side.
Some other persons in the meantime came to the spot and they also asked the
accused to leave the victims. There was no police post in the village.
As he was advised to make a phone call, keeping in view the fact that the
deceased and injured were to be brought back to the village, P.W. 2 had to go
to the house of Moinoddin Pathan to wake him up as the Gram Panchayat Office,
where the phone was available, was adjoining to his house. His information to
the police officers could not have been in great details. As he was assured
that the police would be coming, he waited for the police party by the side of
Ashti Bhalwani to Pangulgavan Road. The police party came at about 1 a.m. They
came in a police jeep to the house of Laxmibai and then only the deceased and
the injured could be sent to the hospital. It appears from the evidence of Dr.
Dutta, that the deceased was brought to the hospital under a requisition
letter. It was evidently issued by the Investigating Officer.
16. The said requisition letter was proved and marked as Exh. 49.
17. PW-6 was found to be semi-conscious and he was not in a position to
reply to the questions put to him.
18. He was admitted as an indoor patient in the hospital on 23.1.1997 and
was discharged only on 26.1.1997. In a situation of this nature, explanation of
PW-2 and others that they gave priority to the treatment of the deceased and
the accused which occasioned the delay in lodging the First Information Report
and the same having been accepted by two courts below, we do not find any
reason to disagree. We find no reason to discard the testimony of P.W. 2 who is
an independent witness.
19. Strong reliance has been placed by Mr. Savant on a decision of this
Court in State of M.P. v Kriparam [ (2003) 12 SCC 675]. In that case, the High
Court had reversed a judgment of acquittal. This Court found the evidence of
the eye-witnesses to be artificial. At one stage they had said that they were
at the same place but later on changed their story alleging that they had been
sleeping separately. The Court found so much contradictions in regard to the
direction and place the witnesses said to have run away from the alleged place
of occurrence and their hiding at other place till next morning, was found to
20. It is on the aforementioned backdrop of events, this Court opined that
the delay in lodging the First Information Report was attempted to be explained
only by inventing the story that they fled away from the scene of occurrence
and were hiding till 8 o'clock in the morning. This Court furthermore found
contradictions even in relation thereto.
21. The said decision cannot be said to have any application in the instant
22. Reliance has also been placed by Mr. Savant on Shankarlal v State of
Rajasthan [(2004) 10 SCC 632]. In that case also, the testimonies of the
alleged eye-witnesses were not believed. Therein also, the explanation for
lodging the First Information Report after some delay viz.
that the informant upon seeing the occurrence got scared and took different
road, reached the village at about 4 or 4.15 pm, whereas the occurrence had
taken place at about 1.30 a.m., the delay in lodging the First Information
Report at 3.15 a.m. on the next date was not believed stating;
"In such circumstances this unexplained long delay also creates a doubt
in our mind as to the genuineness of the prosecution case. Once we are not
convinced with the evidence of PW 6 then there is no other material to base a
conviction on the appellant, hence we are of the opinion that the appellant is
entitled to the benefit of doubt, therefore, this appeal succeeds and is
23. The said decision also has no application to the fact of the present
24. It may be true that P.W. 2 had informed the officer in charge of the
Police Station on telephone, but the circumstances in which the said call had
to be made has been noticed by us heretobefore.
25. The Head Constable states that he had written down the same but then it
must have been a cryptic report and only for the purpose of visiting the scene
of occurrence. He as well as the Investigating Officer did not say that it was
a detailed report.
26. If, in the aforementioned premise, another First Information Report
which was a detailed one came to be recorded, no exception can be taken to the
same being treated as a First Information Report.
27. Reliance has been placed by Mr. Savant on Tapinder Singh v State of
Punjab and Another[(1970) 2 SCC 113]. Therein this Court held that cryptic and
anonymous oral message which did not in terms clearly specify commission of a
cognizable offence cannot be treated as first information report.
28. See also State of U.P. v P.A. Madhu [AIR 1984 SC 1523], Ramsinh Bavaji
Jadeja v State of Gujarat [(1994) 2 SCC 685] Binay Kumar Singh v State of Bihar
[AIR 1997 SC 322] and Soma Bhai v State of Gujarat [AIR 1975 SC 1453].
29. We must notice that the appellants have not questioned the factum of
coming of the police personnel to the village, taking the deceased and the
injured to the hospital, seizure of the articles, preparation of panchnamas
etc.. As major part of the actions taken by the Investigating Officer pursuant
to the First Information Report in this case is not disbelieved, We fail to see
any reason as to why the statement of P.W. 2 made before the Officer in-charge
on 23.1.1997 at 7.30 a.m. should be discarded.
30. Before embarking upon the other contentions raised by Mr. Savant, we may
notice a disturbing feature of this case. Statements of the witnesses and in
particular, the injured witness, P.W. 6 had been recorded. The said statement
was available on the records of the learned trial judge while considering of
the application for bail filed by the appellants.
31. The learned trial judge in his judgment in the proceeding sheet dated
27.2.1997 noticed as under:- "7. Perused the case papers. It reveals from
the case papers that not only the complainant is an eye witness but Ajnath,
Rohidas, Tulsabai and Inured Bapu also stated about the occurrence
The post mortem report support the fact of occurrence as narrated by the eye
witnesses. On perusal of the F.I.R. and other witnesses at least at this stage
it cannot be said that F.I.R. is belated.
Thus from the aforesaid material there is a prima facie case against all
these applicants for the offence punishable u/secs. 147, 148, 149 and 302 of
I.P.C. The investigation is in progress. Some of the accused are yet to be
arrested. Admittedly there is a long standing enmity between the accused
persons and the family of the deceased and others. It is seen from the case
papers that these applicant and co-accused armed with deadly weapons attacked
on deceased and his nephew Bapu and though eye witness attempted to rescue them
the accused did not allow them to came and make any intervention. On perusal of
the case papers it is seen that the injured Bapu made a repot that some of the
relatives of the accused gave threats to him for not disclosing the names of
the accused before the police. Thus if the circumstances in which the alleged
incident taken place, the conduct of the accused persons at the relevant time
of the alleged incident and the above referred facts considered together I find
much substance in the contention of the learned A.P.P......"
32. Learned Trial Judge in his judgment categorically held that only an
additional statement of P.W. 6 Bapu was recorded on 8.8.1997 although initially
his statement was recorded immediately after the alleged incident.
P.W. 6 had also informed the authorities that he was being threatened by the
relatives of the appellants not to disclose their names.
33. Despite the fact that the statement of P.W. 6 and other witnesses were
on record and P.W. 6 had been threatened by the relatives of the appellants,
the same did not form part of the case diary. The learned Trial Judge in the
aforementioned situation opined that the Investigating Officer was helping the
appellants in the following words.
"57. For above stated reasons, so far as the attack of the defence on
record of the belated statement of P.W. 6 Bapu is concerned, looses it much
force be cause from the previous Court record itself it is evident that there
was statement of P.W. 6 Bapu which was produced for the scrutiny and perusal of
the court in the month of February 1997 itself while entertaining the bail
application and like magic vand the said statement vanished from the police
record for which P.W. 12 P.S.I. Ovhal could not give any satisfactory
explanation. Leave apart the question of vanishing of the statement from the,
police record there is not a single word about it in the entire police diary
which itself, I am painful to point out reflects on dishonest, perfunctory
manner of investigation by the concerned police officer. I am really surprised
as to how the defence could at this juncture venture to submit that the
investigation is tainted favoring the accused while from the above fact the
fact is otherwise."
34. The reason for the Investigating Officer in interpolating the case diary
and not producing the purported recording of the information received by him on
phone is not difficult to comprehend. We have grave doubt even in regard to the
statement of the Head Constable that he had recorded in writing any information
received from P.W. 2 on phone.
Police Officers might not have recorded the said statements only to help the
appellants. We would have otherwise held that benefit therefor should go to the
accused, but in this case the fact that statements were made before the police
at the earliest possible opportunity is available on record.
We have been taken through the deposition of the eye witnesses. In
particular our attention has been drawn to purported omissions of the said
witnesses. We have considered each one of them carefully. The purported
omissions related only to the details of the occurrence, but the fact that
P.Ws. 2, 3, 4 and 6 were eye witnesses to the occurrence does not stand thereby
disproved in any manner whatsoever. The occurrence took place on 22.1.1997.
They were examined in Court two and a half years later, If there occurred some
contradictions or even assuming they had omitted to state the incident in great
details, the same by itself would not lead to a conclusion that the appellants
had been falsely implicated in the case.
35. We, see no reason to differ with the findings of the courts below,
particularly in view of the fact that P.W. 6 was an injured witness. He
admittedly received serious injuries, remained unconscious for a long time and
had to remain as indoor patient till 26.1.1997. So far as the submission of the
learned counsel that the appellants did not have any common object to cause the
death of Dnyandeo is concerned, we also find no merit therein. Eight persons
came together. They assaulted the deceased and P.W. 6 indiscriminately. Despite
having been asked to stop assaulting them, not only by P.W. 2 but also by the
wife of the deceased, they did not pay any heed thereto. They continued to
assault them. They dragged them to the west bank of the river and only left
them there when a large number of people gathered and asked them not to do so.
36. The question, as to whether in a given case common object has been made
out or not, will depend upon the facts and circumstances thereof;
Conduct of the parties and the manner in which the occurrence has taken
place, will have some bearing on the question. We, keeping in view the facts
and circumstances of this case, are of the opinion that the submission that it
is not a case where despite the fact that specific overt acts on the part of
each of the appellant herein had not been specifically stated, they cannot be
held guilty only under Section 325 of the Indian Penal Code.
37. In Bhima alias Bhimrao Sida Kamble and Others v State of Maharashtra
[(2002) 7 SCC 33], whereupon Mr. Savant placed strong reliance, this Court
noticed that some accused persons were held to be carrying common object
whereas another was held to have common intention. There was no evidence as to
the nature of weapons with which they were armed; and in fact there was no
evidence to show that the appellants therein had any weapon with them or caused
any hurt to anybody. A large number of persons were involved. In the
aforementioned situation, this Court found that the object of the mob was to
teach the deceased a lesson who was a bully in the village and only in that
situation an inference was drawn that the common object was to commit offences
under Section 323 and 325 and not under Section 302 read with Section 149 of
the Indian Penal Code.
38. The said decision have no application to the facts of the present case.
39. There is, thus, no merit in this appeal, which is accordingly dismissed.