Pandurang Chandrakant Mhatre & Ors vs State Of Maharashtra

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 = cm.

(2) Incised wound over the head 4 cm above the Occipital. Vertical 3 x = 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

CLW 1" x =" SCD L/3rd 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 ="

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 =" (2) CLW occipital 1 =" (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

Meharaj Singh (L/Nk.) v. State of U.P.1; T.T. Antony v. State of

Kerala & Ors.2 and Ramesh Baburao Devaskar & Ors. v. State

of Maharashtra3. 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.

Prabhu & Ors4; Sarwan Singh & Ors.etc. v. State of Punjab5;

Ram Anjore and Others. v. State of U.P.6; Gokul & Others v.

State of Rajasthan7; Md. Isak Md. & Others v. State of

Maharashtra8; Ninaji Raoji Baudha & Another v. State of

Maharashtra9; Nattan v. State of Tamil Nadu10; Mariadasan &

Others v. State of Tamil Nadu11; Bharwad Bhikha Natha &

Others v. State of Gujarat12; Harshadsingh Pahelvansingh

Thakore v. State of Gujarat13; 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 of Punjab14; Bansropan Singh and Others v. State of Bihar15;

Sarman & Others v. State of M.P.16

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,

reliance has been placed on : Ishwar Singh v. State of U.P17;

Radhakrishnan Nair v. State of Kerala18; Chotu v. State of

Haryana19; Palia v. State of Punjab20; Bathula Nagamalleswara

Rao And Ors. v. State rep. by Public Prosecutor21; Mahmood

and Anr. v. State of U.P.22; State of Punjab v. Avtar Singh23;

State of Punjab v. Gurdip Kaur24 and Ramesh Baburao

Devaskar And Others v. State of Maharashtra25. 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

has been placed on Chandu v. State of Maharashtra26;

Kashiram & Ors. v. State of M.P.27 and Harijana Thirupala &

Ors. v. Public Prosecutor A.P., Hyderabad28. 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

Ratan & Others v. State of Rajasthan29.

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

Maharashtra30, 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

Maharashtra31, 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

intervening night of 2nd and 3rd 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

Nadu 32, 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

Others33 , 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

State of U.P. v. Ram Swarup and Others34 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.

52. In Masalti vs. State of U.P.35, 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.

54. In Shere And Ors. vs. State of U.P36, 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....."

55. In Musa Khan & Ors. vs. State of Maharashtra37, 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................."

56. In Nagarjit Ahir vs. State of Bihar38, 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

Police, Tamil Nadu39, 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 Ramratan and others v. State of Rajasthan40, Chhotu vs. State

of Haryana41 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

Mahtab Singh & Anr. v. State of U.P.42. 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

48 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