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PETITIONER: MANOJ @ BHAU & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       08/04/1999

BENCH: G.B.PATTANAIK & M.B.  SHAH.,

JUDGMENT:

--------

PATTANAIK, J. ------------

       The three appellants, who are accused nos.  1, 2 and 3  respectively,  along with 3 others who have not preferred any appeal were  tried  by  the  learned  Additional  Judge, Nagpur in  Sessions  Case  No.   70 of 1990 for the offences punishable under 147, 148 and  302  read  with  Section  149 Indian  Penal  Code  on  the  allegation that they formed an unlawful assembly and mercilessly assaulted deceased Raju by means of gupti, knife, hockey sticks and  motor-cycle  chain on  account of which Raju succumbed to injuries sustained by him.  The  learned  Sessions  Judge  on  the  basis  of  the prosecution  evidence  convicted  all  of the under Sections 147, 148 and 302 read with Section 149 Indian Penal Code and sentenced them to suffer R.I for one year and to pay a  fine of Rs.  100/- and, in default of suffer R.I for one week and imprisonment  for  life for the conviction under Section 302 read with Section 149 IPC with the  further  direction  that the sentences   would   run   concurrently.     Against  the conviction  and  sentences   two   Criminal   Appeals   were preferred;   one   by   the  present  appellants  which  was registered as Criminal Appeal No.  237 of 1991 and the other by the rest  3  accused  persons  which  was  registered  as Criminal  Appeal  No.227  of  1991 and both the appeals were heard and were disposed of by the common  impugned  judgment and  the  learned Judges of Bombay High Court, Nagpur Bench, dismissed both the appeals and maintained the conviction and sentences imposed upon the accused persons.    As  has  been stated  earlier, only 3 of the appellants have preferred the appeals whereas other 3 accused persons have  not  preferred any appeal.

       The  prosecution  case  in  nutshell  in  that the 3 appellants are all brothers and the other 3 accused  persons who have  not  preferred  any appeal are their friends.  The appellants have their  houses  in  front  of  the  house  of deceased Raju.    The  appellants  belong  to  one political organisation called ’Chhatrapati  Sena’  and  deceased  Raju also was  a member of the said organisation.  But during the election of Legislative Assembly in the year  1989  deceased Raju  carried  the propaganda for the candidate belonging to Congress  (I)  and  on  account   of   this   incident   the relationship  between  the accused persons and deceased Raju was strained.  On  18.4.1990  at  about  9.00  p.m.    while

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deceased  and  his parents PWs 1 and 8 and one Pitamber were sitting on the terrace of their house accused nos.  1  to  6 come out  of  the  house  of  accused no.  4 and went to the house of one Shrikhande which is infact right  in  front  of the house  of  deceased Raju.  All of them then entered into the courtyard and abused Raju and  challenged  him  to  come down to  the  courtyard.   When Raju came down, Accused no.4 caught hold of the right hand of deceased  and  dragged  him outside  the  courtyard whereafter all of them together took him to the front house of  Shrikhande.    Accused  no.1  was holding  a  Gupti,  accused  no  2  was  holding a stick and accused no.3 was holding a motorcycle  chain  while  accused no.4 was  having  a  hockey  stick and accused nos.  5 and 6 were having knife with them.  As per  the  prosecution  case the  accused  persons surrounded deceased Raju and assaulted him by giving blows with  the  weapons  in  their  hands  on account   of   which  Raju  fell  down  on  the  ground  but notwithstanding  the  same  the  accused  persons  continued inflicting  blows on him as a result of which he died on the spot.  It is also the prosecution case  that  PWs  1  and  8 followed  Raju  and  when PW 8 requested the accused persons not to assault Raju she was pushed aside.  After the accused persons left the scene of  occurrence  the  parents  of  the deceased  cried  for  help  when  people  from  the  village gathered and then father of the deceased, PW1  went  to  the Policy  Station  and  lodged  a  report which was treated as First Information Report - Exhibit  21.    The  police  then registered  the  case  and  started  investigation and after completion of investigation submitted the chargesheet.   The case  was  then  committed  to the Court of Sessions and the accused persons  were  tried,  as  already  stated.      The postmortem  report  Exhibit  -  27  and  the evidence of the doctor who conducted the autopsy over  the  dead  body  PW-2 indicate  that  the  deceased  had  as  many  as 17 external injuries and injuries nos.  1,2 and 3 were sufficient in the ordinary course of nature to  cause  death  individually  or collectively.   The  injuries  were  ante-mortem  in nature. This conclusion of the learned Sessions Judge,  as  affirmed by  the  High  Court has not been assailed before us in this appeal.  Out of the three eye witnesses  PWs  1,  8  and  12 learned   Additional   Sessions   Judge  relied  upon  their testimony and came to the conclusion  that  the  prosecution case  as against the accused persons have been proved beyond reasonable doubt.    On  appeal  the  High  Court,  however, disbelieved  the  evidence  of  PW12  on  a finding that his presence at the scene of occurrence itself was doubtful  but the  conviction and sentences passed by the learned Sessions Judge was affirmed relying upon the  testimony  of  the  two other eye witnesses namely, PWs 1 and 8.

       Mr.  U.R.      Lalit,  the  learned  Senior  counsel appearing for the appellants vehemently argued that the  two eye   witnesses   have   made  so  much  of  embellishments, exaggeration and padding to their statements recorded  under Section 161 Cr.P.C.  that it is difficult for a Court of law to  rely  on  such  testimony and the Sessions Judge and the High Court committed serious  error  in  relying  upon  such untrustworthy testimony to  base the conviction.  Mr.  Lalit further contended that very foundation  of  the  prosecution case  as  unfolded  in the First Information Report given by PW1 having failed the superstructure, as unfolded by the two eye witnesses also must fail and it is highly unsafe to rely on the testimony of these two eye witnesses only, so far  as the  alleged  assault by the accused persons on the deceased Raju is concerned in as much as the entire evidence is  only

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chaff and no  grain therein.  Mr.  Lalit also submitted that on reading of the evidence of PWs 1 and 8  it  would  appear that  both  of  them  were  not  present  at  the  scene  of occurrence and therefore, they could not  have  been  relied upon as eye witnesses.

       The    learned    counsel    appearing    for    the respondent-State on the other hand urged  that  the  alleged embellishment and  exaggeration  pointed  out by Mr.  Lalit, learned senior counsel appearing for the appellants  do  not relate  to  the  substratum  of  the  prosecution  case, and therefore, the Courts below were justified in  relying  upon the  testimony  of  the aforesaid two witnesses in coming to the conclusion that it is the accused persons who  assaulted the  deceased with the respective weapons on their hands and this fact is corroborated by the medical evidence indicating the presence of injuries on  the  deceased  which  could  be caused by the weapons which were found to be in the hands of the accused  persons.   According to the learned counsel for the respondent there is no justification in the  comment  of Mr.   Lalit  that  the  presence of these two witnesses have become doubtful.  In view of the respective  contentions  of the  learned  counsel  appearing for the parties we think it appropriate to examine the evidence of the two eye witnesses on whose evidence the conviction of the appellants is  based Ordinarily  this  Court  does  not reappreciate the evidence when two courts have already scanned and believed the  same. But  on  going  through the omissions and exaggerations from their earlier version we thought it fit  to  scrutinise  the evidence  of the aforesaid two witnesses to find out whether the  so-called  exaggerations  and   embellishments   really pertain  to  the  basic  prosecution case so that the entire evidence has to be discarded as being untrustworthy  or  the court  would  be  justified in embarking upon an enquiry for the purpose of separating chaff from the  grain  and  accept the grain  to base the conviction.  PW1 lodged the report at the Police Station at 9.30 p.m.  on 18.4.90 intimating about the occurrence that  took  place  at  9.00  p.m.    and  the distance  between  the  Police  Station  and  the  place  of occurrence is 3 Kms.  Thus the information to the Police has been given  with  utmost  promptitude.      In   the   First Information  itself  the  names of the 3 appellants had been given as the members of the unlawful assembly who  assaulted the deceased  Raju with different weapons in their hands.  A graphic picture has been indicated as  to  how  the  accused persons called Raju and after Raju came down dragged him and surrounded him  and  thereafter assaulted him.  In course of the argument Mr.  Lalit, learned senior  counsel  had  urged that  the  FIR  is  rather  sketchy and vivid account of the incident has not been stated therein.  But it  is  too  well settled  that  the  First  Information Report need not be an encyclopedia of the evidence and  what  is  required  to  be stated is  the  basic  prosecution  case.   Judged from that stand point no grievance can be made in respect of the First Information Report that was given by PW1.

       According to PW1, who is the father of the deceased, the 3 appellants accused nos.  1,2 and 3  were  residing  in front of  his  house and he knew them fully well.  While the deceased Raju, PW1 and PW8 were  sitting  on  their  terrace accused  persons  entered  the  courtyard of their house and then called Raju to come down.  When Raju came down from the terrace to  the  courtyard  then  all  the  accused  persons surrounded  him,  dragged  him  to the place in front of the house of Shrikhande and accused no.  1 was holding gupti  in

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his hand  while  accused nos.  2 and 3 were holding a hockey stick and motorcycle chain respectively.  According  to  the witness all the accused persons including the 3 who have not preferred any appeal started giving blows on Raju with their respective  weapons and even after Raju fell down some blows were further given.  It is his further  evidence  that  when mother  of  the  deceased PW8 intervened accused no.1 caught hold of her and pushed her aside.  Though this  witness  has indicated  that  accused no.1 dealt 4 or 5 blows of gupti on the person of Raju but had not stated any specific overt act to have been committed by accused nos.2 and 3 apart from the general statement that all accused  persons  surrounded  and assaulted.   In other words that accused nos.2 and had given blows on the deceased by means of cycle chain and stick  has not   been   stated   by  the  witness  even  in  the  chief examination.  In the cross examination it has been  elicited that  he  had  gone on foot to lodge the report after he had visited the scene of occurrence and on  this  statement  Mr. Lalit wanted to urge that he was not present at the scene of occurrence and  reached  there later.  But this is belied by the very next sentence stated by the witness.    It  is  not true  that  I  have not witnessed the incident." The defence had  elicited  from  this  witness  certain   omissions   as indicated  in  paragraph  13 of his evidence which is to the effect that he had not stated before the police that accused nos.  1 to 6 had come out of the house of accused  no.4  and that  they  had  come out and then entered his courtyard and the explanation offered was that he  was  not  in  a  proper frame of  mind.    The further omission brought out from the witness is that he had not stated  before  the  police  that accused nos.  1, 4, 5 and 6 abused Raju by mother and sister and also  that  accused  no.  4 caught hold of right hand of Raju and dragged  him  and  all  the  accused  persons  then surrounded him  as  I  was then frightened.  He had also not stated before the police that accused no.4 had dealt a  blow of hockey  stick  on  Raju’s  head.   He had also not stated before the police that Lakhmibai PW8 had placed herself over the body of Raju and told the accused not to  assault  Raju. It  has  been  elicited in his cross-examination that he had not stated before the police that accused no.4 had  given  a threat  that  if  an  evidence is given in the Court then he will be murdered.  It was also brought out that  he  omitted to  say  that  the  tube  light  was burning in front of his house.   Considering  these  omissions  from   the   earlier statement  as  confronted  to  the  witness  we are not in a position to appreciate the contention of Mr.  Lalit that his entire evidence should  be  disbelieved,  particularly  when there  has  been  no  material  omission  so far as the role played by accused no,1 is concerned, that he had a gupti  in his  hand and assaulted Raju by means of gupti by given 4 or 5 blows.  The nature of injuries found on deceased Raju  and the  medical  evidence  of the doctor fully corroborates the oral evidence of PW1 so far as the role ascribed to  accused no.1.  As has been stated earlier so far as role ascribed to accused  2 and 3 are concerned the witness has not given any definite overt acts excepting  making  the  general  version that all  accused surrounded and assaulted.  In this view of the matter though the evidence  of  this  witness  does  not assist  the  prosecution in bringing home the charge against accused nos.2 and 3 but so far as accused no.1 is  concerned the  prosecution case can be said to have been proved beyond reasonable doubt on the basis of the evidence of PW1.

       Coming now to the evidence of PW8,  she  also  apart from  stating in her evidence in chief that accused no.3 had

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an iron chain, accused no.2 had a stick in his  hand,  while indicating  the  blows  given by each of the accused persons she stated that accused nos.  2 and 3 had dealt stick  blows on the  person  of  Raju.    This  actually  contradicts her evidence that accused no.3 had an iron chain  in  his  hand. So far as accused no.1 is concerned, she corroborates PW1 by stating  that accused no.1 started giving gupti blows on the deceased Raju.  The omissions from her earlier statement  to the police which had been confronted to her that she had not stated  before  the  police that she herself and her husband and Raju were sitting on the  terrace  and  she  had  stated before  the  police that her husband had reached there after accused had ran away, on the basis of the aforesaid material Mr.  Lalit had urged that PW1 cannot be said to  be  an  eye witness to the occurrence.  We are unable to appreciate this argument  in  as  much as reading the evidence as a whole it cannot be said that PW1 reached the scene of occurrence only after the entire occurrence was over.   So  far  as  accused no.1  giving  gupti  blows on the deceased there has been no embellishment and no exaggeration made by  this  witness  in her earliest  statement  to  the  police.  But though in the Court she had stated that accused no.3 had an iron chain she had not stated so in her statement to the  police  and  that was duly  confronted  to  her.  Even she had not stated that accused no.2 had a stick in  his  hand  and  that  was  also confronted to  her.  Having examined the aforesaid omissions we have no hesitation to come to  the  conclusion  that  the role  ascribed  by  this  witness  to the accused no.1 fully corroborates the evidence of PW1 and there is no reason  why the  statement  of  the aforesaid two witnesses shall not be relied upon.  Which have been relied upon by two  courts  of fact.   On  the aforesaid basis we agree with the conclusion of the two courts below that accused no.1 holding a gupti in his hand, dealt several blows on  the  deceased  Raju  as  a result of  which  Raju  ultimately  died.  But so far as two other accused, namely, accused nos.  2 and 3 are  concerned, we  are  of  the  considered  opinion  on  going through the evidence of aforesaid two eye witnesses PWs 1  and  8,  that prosecution  case  as against the said two appellants cannot be  said  to  have  been  proved  beyond  reasonable  doubt. Excepting  bald,  vague  and  general statement that all the accused surrounded and assaulted, while  ascribing  positive role  to  different  accused persons and how many blows have been given, but so  far  as  accused  nos.    2  and  3  are concerned,  there  has been no whisper by either PW1 and PW8 and even PW8 in her earliest statement to the police had not stated that accused nos.  2 and 3 were having  a  stick  and cycle chain  in  their  hands.   In this state of affairs it would be unsafe to convict appellants  nos.    2  and  3  by taking  recourse to Section 149 IPC as necessary ingredients to attract the said Section as against accused nos.  2 and 3 are totally absent.  We have not discussed the  role  played by  those accused persons who have not preferred any appeal, but suffice it  to  say  the  eye  witnesses  have  ascribed positive  role to those non-appealing persons as to how they have given blows on deceased Raju.

       In the aforesaid premises, we acquit accused nos.  2 and  3  of the charges levelled against them and direct that they shall be set with liberty forthwith unless required  in any other case. But so far as accused no. 1 is concerned, he is  convicted  alongwith non-appealing accused persons under Section 302/34 IPC and their sentence  of  imprisonment  for life is affirmed. The appeal is thus partly allowed.

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