CRIMINAL APPEAL NOS. 837, 843 and 847 OF 2005
S.B. Sinha, J.
Shivaji Patil, brother of the
complainant 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 clock 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 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
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 s 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 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
(iv) Although there are inconsistencies, omissions and improvements, the
same, being minor in nature, have rightly been ignored by the Courts
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
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 the 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 . 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 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:
9. 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
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.
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 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
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
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:
We have examined the evidence of the three eye-witnesses as also that of
Iqbal Singh (PW-10), the 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.
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
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 11and 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
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