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CASE NO.: Appeal (crl.)  844-846 of 2005

PETITIONER: Ramesh Baburao Devaskar & Ors

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NOS. 837, 843 and 847 OF 2005

S.B. SINHA,  J :

1.      Shivaji Patil, brother of the complainant \026 Sarjerao Patil (PW-13) and  one Baburao Patil were residents of Phulewadi situate in the District  Kolhapur, State of Maharashtra.   

       There were two groups in the village; one belonging to Sarjerao Patil  and the other known as Mahipati Shankarrao Bondre (Accused No. 4) group.   Brother of the Accused No. 4 was an M.L.A.  He was also a former  Minister.  In a municipal election which took place between the first  informant and one Nagoji Patil, Sarjerao Patil was elected.  Bitterness  between the two groups came to such a pass that the brother of one Bindu  More (Accused No. 9) was murdered.  Accused No. 4 Mahipati Shankarrao  Bondre was the first informant in that case.  There was bad blood between  the two groups.  In the murder case of the brother of Accused No. 9, the  deceased Shivaji was granted bail.  The accused allegedly intended to take  revenge thereof.

2.      On the fateful day, viz., at about 10 O\022clock on 21.10.1993, PW-11  Subhash Pandurang Kalke was taking his cart to bring grass from the land of  one Rajaram Patil.  On his way, he met his friend PW-12 Sanjay Laxman  Belgaonkar.  PW-11  asked PW-12 to accompany him.  He promised to  come later as he was to deliver medicine at his house.  

3.      While PW-11 was coming back after loading the grass in his cart, at  or near the place of occurrence, Shivaji Patil and Baburao Patil who were  coming on a motorcycle overtook him.  Accused persons, who were 11 in  number, had allegedly been waiting for them.  They were accosted by the  accused persons.  The accused persons formed a threatening semi-circle  around them.  Accused No. 9 Bindu More exhorted others to assault but he  himself inflicted vital injuries upon Shivaji Patil.  Baburao Patil intervened.   He was also threatened.  He started running away from the scene of  occurrence.  He was chased.  PWs 11 and 12 seeing them chasing Baburao  hid themselves nearby in a sugarcane field.  Baburao Patil was found  murdered in front of the house of Sou Padma (PW-14).  Babasaheb, brother  of the deceased (PW-9) Shivaji Patil who was also coming back from his  village along with others found his brother murdered.  PW-11 informed him  about the details of the incident.  He came to his house and informed his  sister-in-law.  She in turn asked PW-10 Sadashiva to go to the Corporation  Office and inform about the incident to the first informant PW-13.  PW-13  reached the police station at about 12.30 p.m.  He allegedly did not furnish  the details of the incident.  He only named Accused No. 9.  He disclosed that  PW-16 Vijay that murders of Shivaji Patil and Baburao Patil have been

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committed.  He was asked to furnish details of the incident.  He did not do  so.  He asked PW-16 (I.O.) to come to the place of occurrence.  An entry of  the said information was made in the station diary.  PW-16 came to the place  of occurrence with PW-13.  The details of incident were narrated to PW-9  by one of the alleged eye-witness, viz., PW-11, on the basis whereof the  First Information Report was lodged at the spot.

4.      The First Information Report was lodged at about 2.15 p.m.  In the  First Information Report, nine persons were named as accused.  It, however,  reached the Court of the Magistrate only on 25.10.1993.  Before the learned  Sessions Judge, a large number of witnesses were examined.  PWs 11 and 12  were eye-witnesses.  Relying on or on the basis of their testimonies before  the Court as also the testimonies of other witnesses, the learned Sessions  Judge passed a judgment of conviction against Accused Nos. 1, 2, 3, 5, 6, 7,  9 and 11 and acquitted Accused Nos. 4, 8 and 10.  Appeals were preferred  thereagainst by the appellants. A revision application was also filed by  Sarjerao Patil against the judgment and order questioning acquittal of  Accused Nos. 4, 8 and 10.  

5.      Six criminal appeals were filed before the High Court.  By reason of  the impugned judgment and order, the High Court dismissed the appeals of  the appellants before us.   

6.      Before us, four criminal appeals have been filed.  Criminal Appeal  No. 844-846 of 2005 has been filed by Ramesh Baburao Devaskar (A-5),  Bajirao Govind Mane (A-6) and Bapu Shripati Yadav (A-7).  Criminal  Appeal No. 837 of 2005 has been filed by Sunil Krishnat More (A-3).   Criminal Appeal No. 843 of 2005 has been filed by Hindurao Pandurang  Chougule (A-1), Ainuddin Abdul Gavandi (A-2) and Criminal Appeal No.  847 of 2005 has been filed by Bindu Ramchandra More (A-9) and Sunil  Bhimrao Bodke (A-11).   

7.      Mr. R. Sundravardhan, learned senior counsel appearing on behalf of  the appellants in Criminal Appeal No. 844-846 of 2005 has raised the  following contentions:

(i)     The First Information Report was lodged by way of an after- thought.  It was ante-timed and ante-dated.  In any event it was hit  by Section 161 of the Indian Penal Code as despite knowledge of  all the details of the incident were known to the first informant  PW-9, he did not furnish the same and lodged another report at the  spot. (ii)    The delay of more than three days to send the First Information  Report to the Court of Magistrate clearly proves that the First  Information Report was ante-dated.   (iii)   PWs 11 and 12 were chance witnesses.  There was absolutely no  reason as to why they should be there.  (iv)     The investigating officer examined them at the police station and  not at the place of occurrence.   (v)     They are not reliable witnesses as although, they had not seen the  murder committed of Baburao, as they had hidden themselves in  the sugarcane field, they projected themselves as a witness to the  murder of Baburao also and as such they are not trustworthy. (vi)    In any event, apart from PW-9, there is nothing to show that any  overt act was committed by any of the other appellants. (vii)   PW-14 having been declared hostile, there is no eye-witness so far  as the murder of Baburao is concerned.

8.      Mr. Sundravardhan\022s submission was adopted by Mr. Anil K. Jha and  Dr. Rajeev B. Masodkar, learned counsel.

9.      Mr. Sushil Karanjkar, learned counsel appearing on behalf of the  State, however, on the other hand, would submit:

(i)     The motive of commission of the crime has been proved beyond

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any shadow of doubt.  The brother of the Accused No. 9 had been  killed and the deceased Shivaji had been released on bail and it is,  thus, evident that the accused persons intended to commit the  crime for the purpose of taking revenge. (ii)    Sarjerao Patil (PW-13) being not an eye-witness and he had been  informed about the incident by PW-10 who was also not an eye- witness, it was not possible for him to give details of the incident.   He, being concerned with the murder of his brother Shivaji and  Baburao, thought it fit to ask the investigating officer to come to  the place of occurrence.  The First Information Report was  recorded upon obtaining the details of incident from PW-11.  The  statement given by him before the officer incharge of Karvir Police  Station cannot be said to be a First Information Report and the one  recorded at the place of occurrence had rightly been accepted as  the First Information Report. (iii)   The sequence of events which took place in quick succession  clearly goes to show that the accused persons who had common  intention to commit the said offence not only committed the  murder of Shivaji but also chased Baburao when he started fleeing  away and also committed his murder. (iv)    Although there are inconsistencies, omissions and improvements,  the same, being minor in nature, have rightly been ignored by the  Courts below.   

10.     The principal question which arises for our consideration is as to  whether the second First Information Report can be treated to be the First  Information Report in relation to the incident and in any event any reliance  can be placed thereupon.

       An information received by the officer-incharge of a police station for  commission of a cognizable offence must be reduced in writing so as to  enable him to start investigation.  PW-13 met the investigating officer at the  police station.  He informed him about the incident.  However, he did not  disclose the details for whatever reason.  A First Information Report  although  need not be encyclopedic, but in this case PW-9 did not say that he  was not aware of the details.  He named Accused No. 9.  He disclosed about  the murder of his brother.  The alleged eye witnesses  had disclosed all the  details about the incident to all whom they had met including another  brother of the deceased viz. Baba Saheb.  Why he did not lodge the first  information report has not been disclosed.

       Strangely enough, the First Information Report was recorded at the  spot.  Panchnamas were also held immediately thereafter.  Inquest  Panchnamas were taken.  In the inquest report, only again Accused No. 9  was named.  In the inquest Panchnama, it was stated that the Panchas felt  that \021the deceased was attacked by some unknown assailants with sharp  edged weapons and have stabbed and seriously injured him due to which he  might have died\022.   Why it was recorded like that is a mystery.  

       In the First Information Report, PW-11 was named as the only eye- witness to the occurrence.  So far as PW-12 is concerned, he evidently was a  Chance Witness.  His name was not disclosed in the First Information  Report.

11.     Lodging of a First Information Report is necessary for setting the  criminal law in motion.  It can be lodged by anybody.  It, however, should  not be too sketchy so as to make initiation of investigation on the basis  thereof impossible.  Only information in regard to commission of an offence  may not for all intent and purport satisfy the requirement of the First  Information Report.  When, however, the First Information Report is lodged  by a person who claims himself to be aware of not only the commission of  the offence, the name of the deceased and at least one of the accused who  had committed the same, the could have been recorded on the basis thereof.   It may, however, be another thing to say that any information in regard to  the commission of an offence is given by way of a telephone or by a person

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who does not disclose his identity and such message is so cryptic that it may  not satisfy the requirement of Section 154 of the Code of Criminal  Procedure.  [See Om Prakash alias Raja v. State of Uttaranchal (2003) 1  SCC 648]

12.     We may in this connection refer to Mundrika Mahto and Others v.  State of Bihar [(2002) 9 SCC 183] wherein it has been held:

\0239. We have carefully and minutely examined the  record including, as earlier stated, the evidence of  Suresh Kumar (PW-5) read with Santosh Kumar  (PW-1) and Ram Briksha Mahto (PW-2). Their  evidence inspires confidence. It was natural for  Ram Briksha Mahto not to name the persons who  were dragging the headless body because he did  not know them. On all material aspects, the  testimony of these witnesses is trustworthy and  reliable. It is not the law that the conviction cannot  be based on the testimony of relations. That alone  cannot be the ground to over win the conviction.  The scratch injury, according to the testimony of  the Doctor is possible as a result of dragging. The  non-mention of it by the Investigating Officer in  the inquest report is of no consequence, in the light  of other evidence on record. The High Court seems  to be right in its conclusion that when a large  number of persons were dragging the trunk after  catching hold of the same, only a small portion  may be touching the ground as a result whereof,  there may not be a large number of injuries on  account of dragging. Another factor which  deserves to be noticed is that the Sessions Court,  on perusal of the case diary, has recorded that the  Investigating Officer was deliberately trying to  held the defence. The contention that was urged in  this regard before the Sessions Court and also  before us was that the inquest report having been  held at 11.15 p.m. and the statement/furdbeyan  recorded at 11.30 p.m., inquest report should be  treated as the FIR and not the FIR registered on the  basis of the Furdbeyan and, therefore, the mention  of the name of the appellants therein deserves to be  ignored. The Court of Sessions noticed, on perusal  of the case diary, that it appears that Investigating  Officer first recorded the Furdbeyan and thereafter  held the inquest on the dead body of the deceased,  but recorded in the case diary, the time of  recording of the Furdbeyan as 11.30 p.m. and that  of holding of inquest as 11.15 p.m. in the reverse  order to help the accused. In fact, the case diary  shows that the Fardbeyan was recorded earlier and  inquest later and, thus, inquest could not be treated  as the FIR. Similarly, the telephonic conversation  also could not be treated as FIR, as contended, as it  was a cryptic information that was received and  recorded in the daily diary regarding the  commission of offence.\024

13.     In this case, PW-13 was asked by the investigating officer to give  details thereof.  We also cannot accept the submission of Mr. Karanjkar that  PW-13 did not inform about the incident to others.  He said that he had done  so.  If he had given his version to other prosecution witnesses, as a result  whereof all the details were known to them, the same should have been the  basis for lodging a First Information Report.  We may also notice that in

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response to the query by the investigating officer, PW-10 did not say that he  was not aware thereof.  For one reason or the other, he did not do it.  He  asked him to go to the place of occurrence.  Although anxiety on his part to  take the police officer to the place of occurrence with a view to apprise him  about the incident is appreciable, what is not is his refusal to disclose the  details thereof.  He did not say that he was not aware thereof.

14.     A First Information Report cannot be lodged in a murder case after the  inquest has been held.  The First Information Report has been lodged on the  basis of the statements made by PW-11 to the informant himself at the spot.   If the said prosecution witness who claimed himself to be the eye-witness  was the person who could lodge a First Information Report, there was  absolutely no reason as to why he himself did not become the first  informant.  The First Information Report was recorded on the basis of his  information given to the first informant at the spot.  All information given by  him to PW-13 was made before the Investigating Officer himself.  What  prevented him from lodging the First Information Report is beyond our  comprehension.  PW-11, we may place on record, categorically stated that  he had disclosed the details of information to all concerned.  Therefore, it is  expected that the first informant was informed thereabout.  We have noticed  hereinbefore that the information given by PW-13 had at least been recorded  by the police in the Crime Register and he categorically stated a few facts,  viz., the main accused Accused No. 9 committed murder of his brother  Shivaji Patil and one Baburao Patil.  Even the place where the murder took  place was known to him.  If we are to believe the investigating officer, he  recorded the statement after holding inquest.  The detailed report in regard to  the nature of injuries as also the place where the injuries were inflicted was  known to him as inquest report had already been prepared.  Such an attempt  on the part of the investigating officer has been deprecated by this Court in a  large number of decisions.  All other witnesses including the Panch  witnesses must have been present there.  If despite the same, according to  Panch Witnesses, at least in respect of Baburao, unknown persons are said to  be his assailants, it is evident that PW-11 did not disclose the names of the  assailants; at least all of them before PW-9 as also the Investigating Officer.

15.     In a case of this nature, enmity between two groups is accepted.  In a  situation of this nature, where the First Information Report was ante-timed  or not also requires serious consideration.  First Information Report, in a  case of this nature, provides for a valuable piece of evidence although it may  not be a substantial evidence.  The reason for insisting of lodging of First  Information Report without undue delay is to obtain the earlier information  in regard to the circumstances in which the crime had been committed, the  name of the accused, the parts played by them, the weapons which had been  used as also the names of eye-witnesses.  Where the parties are at  loggerheads and there had been instances which resulted in death of one or  the other, lodging of a First Information Report is always considered to be  vital.   

16.     The Code of Criminal procedure provides for certain internal and  external checks; one of them being the receipt of a copy of the First  Information Report by the Magistrate concerned.  It is not in dispute that in a  grave case of this nature, the copy of the First Information Report was  received by the Magistrate four days later.  No explanation has been offered  therefor.  Section 157 of the Code of Criminal Procedure mandates that the  First Information Report should be sent to the nearest Magistrate within a  period of 24 hours.  It has not been disputed that the occurrence took place  near the District Headquarters.  There cannot be any reason whatsoever as to  why the First Information Report was sent after four days.  [See Jagdish  Murav v. State of U.P. & Ors. 2006 (8) SCALE 433].   

17.     In State of Rajasthan v. Teja Singh and Others [(2001) 3 SCC 147],  this Court observed:

\023We have examined the evidence of the three eye- witnesses as also that of Iqbal Singh (PW-10), the

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Investigating Officer. We have also perused the  evidence of Ram Pratap Sarpanch (DW-1) and we  do not find any reason to differ with the finding of  the High Court which sitting as the first court of  appeal on facts, had every right to re-appreciate the  evidence. In our opinion, the High Court, in that  process, has not committed any error. As a matter  of fact, the explanation put forth by the learned  counsel in regard to the delay in the FIR reaching  the court is not tenable because assuming that there  were some court holidays that cannot be a ground  for the delay in the FIR reaching the Magistrate,  because requirement of law is that the FIR should  reach the concerned Magistrate without any undue  delay. We are of the opinion that the explanation  given by the prosecution regarding the delay in the  FIR reaching the Magistrate is neither convincing  nor acceptable.\024      

18.     We will assume that the presence of PWs 11 and 12 at or near the  place of occurrence was possible.  We have been taken through the evidence  of PWs 11 and 12.  The deceased Shivaji Patil and Baburao Patil allegedly  were coming in a motor cycle.  They crossed him but then, according to  them, the incident which took place was at a distance of 100 ft.  However,  when the actual assault by Accused No. 9 took place by infliction of blow of  an axe, the distance was reduced to 50 feet.  No overt act was attributed to  anybody else.

19.     According to him, Baburao Patil then started running.  All the  assailants followed.  He jumped out of the bullock-cart and ran towards the  sugarcane only after the assailants crossed his bullock-cart.  He did not and  could not see the actual assault on Baburao.

20.     Another facet must also be noticed.  The investigating officer  recorded his statement partly upto 6.30 p.m.  He was asked to come to the  police station on the next day and his remaining statement was recorded in  the Karvir Police Station.  According to him, his statement was recorded  only after the bodies were sent for post mortem.  He went to the police  station at 9 p.m. and was there about half an hour.  It is borne out from the  record that he got his statement under Section 164 of the Code of Criminal  Procedure but he could not remember thereabout.  When, however, accosted  therewith, he said that he had made statement before the Sub-Judicial  Magistrate on 11.11.1983.  He made a lot of improvements in his statement.   

21.     So far as Baburao is concerned, in the inquest panchnama, statements  of panch witnesses had been recorded to the effect that                                                                                                                                   unknown assailants had killed him.  It may be true that the prosecution  would be bound thereby.  But, the impression we gathered therefrom is that  at least at that point of time there was a general belief that Baburao had been  killed by unknown assailants.  The dead body of Baburao was found near the  house of PW-14.  PW-14 turned hostile.

22.     Proof of motive by itself may not be a ground to hold the accused  guilty.  Enmity, as is well-known, is a double edged weapon.  Whereas  existence of a motive on the part of an accused may be held to be the reason  for committing crime, the same may also lead to false implication.   Suspicion against the accused on the basis of their motive to commit the  crime cannot by itself lead to a judgment of conviction.

23.     The learned counsel appearing on behalf of the appellants addressed  us at a great length that the other accused persons did not share the common  object with Accused No. 9.  We find some substance in his submission.   Their names did not appear in the First Information Report.  Even PWs 11

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and 12 did not attribute any overt act on their part.   

24.     As it is difficult for us to rely upon the testimonies of PWs 11 and 12  and for other reasons enumerated hereinbefore, we are of the view that it  would be hazardous to record a judgment of conviction in this case.

25.     These appeals are allowed.  Appellants are set at liberty unless wanted  in connection with any other case.