The two appellants
herein are aggrieved by the judgment of the High Court
pronounced on July 27, 2011, whereby their conviction under
Section 302JUDGMENTread with Section 34 of the Indian Penal Code, 1860
(for short, ‘IPC’), as recorded by the Magistrate, has been upheld
and their sentence to undergo life imprisonment with fine is also
confirmed thereby.
2)The prosecution case, on the basis of which the appellants along with
eleven other persons were charged for committing offences of different
nature, is stated by the High Court in para 5 of the impugned judgment.
There is no dispute that the prosecution version, as recorded therein,
suffers from any inaccuracies. Therefore, in order to have a glimpse of
the prosecution case, we would take the facts as narrated in para 5 of
the impugned judgment:
3)The complainant, appellants and other accused persons are
residents of Chandrapur. Complainant – Manoj Bhaskar Ugade knew
both the appellants. The incident had occurred on November 17, 2002.
The complainant had bought new motorcycle and with a view to
celebrate the occasion, he had arranged a party at Junona in
Ballarshah Tehsil. Junona is a forest place and it appears that there is
some Holiday Resort also. It is a picnic place which is normally
crowded to some extent on holidays. The said party arranged by
Manoj was attended by his friends, including the two deceased, Vinod
Channewar and Chandu Prakash Dongre. In addition to the above deceased, the said party was attended by Golu Ramteke, Jivan
Mahadole, Anil Tajne, Sahilesh Gujarkar, Dilip Pradhan, Shankar
Thakre, Vinod Shende, Santosh Kashti and Bahadur Hajare. The food
was to be prepared on the spot. Therefore, raw material was taken to
the spot of party in a Maruti van. The complainant and his friends
reached the spot at about 12.00 noon and they started preparing
meals. Since meals were not ready, the deceased had gone little away
from the place of party to buy Gutka. They returned to the spot at
about 12.30 p.m. The meals were still not ready. They, therefore,
started playing cards at some distance from the place where the
complainant was preparing roties. While the complainant was busy in
his work, suddenly 8 to 10 persons reached the spot. The deceased,
Vinod and Chandu, started running after witnessing them. However,
the said 8 to 10 persons followed the deceased. The two appellants
before us were holding swords. It is alleged that both of them started
assaulting deceased Vinod with the swords in their hands, while rest of
the persons followed Chandu. The complainant could not see as to
what happened to Chandu. However, after the culprits fled away, it was
seen by the complainant that there were severe injuries on the head of
deceased Vinod. His brain material had come out. Obviously he was
dead. Deceased Chandu was found at some distance in the same condition. The JUDGMENTcomplainant, therefore, threw away all the eating material and immediately rushed to the brother of Bahadur Hajare. It
may be stated that Bahadur Hajare was one of the persons who had
attended the party. Thereafter, the complainant along with his friends
had gone to the house of Advocate Rangari at Chandrapur to take his
advice as to what they should do further in the matter. Advocate
Rangari advised him to report the matter to the police. The matter was
reported to City Police Station, Chandrapur. They had registered an
offence vide Crime No. 00/02 under Section 302 read with Section 34
of IPC and Section 4 read with Section 25 of the Arms Act against the
appellants and others. Since the place of incident was not within the
jurisdiction of City Police Station, intimation was given to Ballarshah
Police Station regarding the incident. Upon receiving the intimation,
Ballarshah Police Station registered FIR No. 220 of 2002 and
investigation was taken up by P.I. Mr. Kshirsagar, who visited the spot.
Two of the witnesses were called, who had indentified the bodies lying
on the spot. Inquest was done on the spot. Both the bodies were
referred to General Hospital, Chandrapur for post-mortem examination.
Rest of the panchnama was drawn on the next day as it was dark.
During the course of investigation, it was revealed that one motorcycle
was used by the appellants, which belonged to one Amarpur. The said
motorcycle was also seized. Other accused were arrested from time to time during the course of investigation. Weapons and clothes were also seized and after completion of investigation chargesheet was filed
in the court of Magistrate. It appears that during the course of
investigation, provisions of the Maharashtra Control of Organised
Crime Act, 1999 (hereinafter referred to as 'MCOC Act') were also
applied and further investigation was carried out by the Deputy
Superintendent of Police, Mr. Sardeshpande. However, since Inspector
General of Police rejected the proposal for prosecuting the appellants
and others in MCOC Act, the accused were tried by the ad-hoc
Additional Sessions Judge at Chandrapur.
4)The appellants herein were the main accused persons and described
as Accused No.1 and Accused No.2 (A-1 and A-2). In fact, A-1 to A-8
were charged under Section 302 as well as Sections 147 and 148 read
with Section 149 of the IPC. A-9 to A-11 were charged under Section
212 of the IPC, whereas A-12 and A-13 were charged only under
Section 120-B of the IPC. Prosecution examined 22 witnesses in
support of its case. There was no dispute about the cause of death of
the two persons, namely, Vinod Channewar and Chandu Prakash
Dongre. As per the post-mortem report, the two had suffered multiple
head injuries and these injuries led to their death.
5)The trial court, on the basis of the testimonies of the prosecution witnesses as well JUDGMENTas documents produced before it, found A-1 and A-2 (the appellants herein) guilty of the offence punishable under Section
302 read with Section 34 of IPC. They were acquitted of charges under
Sections 147, 148 and 149 of IPC. A-3 to A-8 were held not guilty.
Likewise, it was held that no case under Section 212 of the IPC was
made out against A-9 to A-11. The trial court also discarded the theory
of conspiracy allegedly hatched by the accused persons to murder the
deceased persons, thereby acquitting A-12 and A-13 of the charge
under Section 120-B of IPC (strangely even it was alleged that all the
accused persons had conspired together to kill the deceased persons,
the charge under this Section was framed only qua A-12 and A-13).
Since only the appellants were held guilty of murdering the deceased
with common intention and given life imprisonment by the trial court,
these two appellants challenged the said verdict by approaching the
High Court of Judicature at Bombay (Nagpur Bench).
6)The High Court, on re-appreciation of evidence, held that it could not
be proved as to who killed Chandu Prakash Dongre. However, the
finding of the Sessions Judge holding the appellants guilty of murdering
Vinod Channewar is affirmed. Thus, even when these appellants are
acquitted of the charge of murdering Chandu Prakash Dongre, the final
result remains the same, i.e. Dismissal of their appeal on finding them
guilty of committing the murder of Vinod Channewar.
This is how the two appellants are before this Court.
7)Mr. Sushil Kumar, learned senior counsel appearing for the
appellants, submitted that the trial court, or for that matter the High
Court, could not see through and appreciate the glaring infirmities and
loopholes in the prosecution case. He submitted that the foundational
facts injected by the prosecution provide unhelpful ambiguity which
manifest hollowness of the prosecution case and a vivid look thereof
was sufficient to discard the prosecution story implicating the appellants
in the entire episode. He pointed out those aspects which we shall
refer hereinafter. He also pointed out that a reading of the judgment of
the High Court would demonstrate that the High Court has indulged into
the guesswork and became too presumptuous in drawing certain
inferences, without any material on record. He also submitted that
most of the arguments raised by the appellants before the High Court
are either glossed over or dealt with casually and/or in a perfunctory
manner, which is against all cannons of criminal jurisprudence that
mandates guilt to be proved beyond reasonable doubt.
8)Neat submission of Mr. Sushil Kumar, in this behalf, was that the FIR
itself was ante-timed with sole intention to rope in the appellants. He
also argued that the conduct of the complainant to go to the house of
Advocate Rangari at Chandrapur after the incident, instead of heading to the Police Station to report the incident, depicted an abnormal
behaviour which was enough to ring alarm on the genuineness of
prosecution story. However, it has been brushed aside by the High
Court. Mr. Kumar had also pointed out that on the purported advice of
the said Advocate, FIR was lodged with Police Station Chandrapur,
which was not the concerned Police Station within whose jurisdiction
the incident had occurred. The concerned Police Station was
Ballarshah Police Station. He submitted that no doubt, the Police
Officer who registered the FIR at Chandrapur called the concerned
officer from Ballarshah Police Station, who took over the matter and
conducted the inquest proceedings, the entire sequence was shrouded
in mystery and the FIR was ante-timed, which could be inferred from
other various circumstances.
9)We find sufficient merit in the aforesaid submissions of Mr. Sushil
Kumar and are convinced about the unnatural behaviour of the
complainant in approaching Advocate Rangari and lodging the FIR at
Chandrapur and also convinced that FIR appears to be ante-timed. As
discussed in detail hereinafter, according to us, these facts are
sufficient to hold that the appellants may have been roped in falsely at
a later point of time, which entitles them to be given the benefit of
doubt. 10)We now proceed to discuss these circumstances and our reasons
hereinafter.
11)As noticed, while stating the case of the prosecution, the
complainant, along with his friends, had gone to Junona in Ballarshah
Tehsil, where a party was arranged by him to celebrate his new
acquisition in the form of a motorcycle. There were many friends of his
along with him. They had decided to prepare the food on the spot, for
which they took raw material with them in a Maruti van. Though the
complainant and his friends had reached that place at about 12.00
noon and had started preparing meals, as far as the two deceased
persons are concerned, they had reached later. Awaiting the
preparation of meals, they had started playing cards at some distance.
It is at that time, 8 to 10 persons reached the spot. As per the
prosecution, the two appellants were holding swords and chased Vinod
Channewar and started assaulting him, while the other accused had
followed Chandu Prakash Dongre. After the incident, as per the
prosecution, the complainant threw away all the eating materials and
immediately rushed to the brother of Bahadur Hajare, who had also
attended the party. Thereafter, the complainant and his friends went to
the house of Advocate Rangari at Chandrapur. 12)During the arguments,JUDGMENTwe were informed that Chandrapur, where
Rangari lived and these persons went, is about 15 kms. It appears to
be a very strange behaviour on the part of the complainant and so
many of his friends who were with him to go to an Advocate, that too 15
kms. away, rather than approaching the Police Station to report the
matter. The High Court has downplayed this unusual and abnormal
conducts in a cavaliar manner by observing that the complainant and
his friends were so scared that they had no sense of stopping at the
Police Station and, therefore, they had straightaway gone to the house
of the said Advocate. This aspect is dealt with by the High Court in the
following manner:
“21…However, it may be stated here that it is possible
that some other persons could have behaved in a
different manner than P.W. Nos. 1 and 3 have behaved.
Reaction of witnesses to a particular incident is not
necessarily similar. It depends upon the nature of the
incident, place of incident and the nature of the witness
himself. In the present case it appears that, in all
probabilities, P.W. 1 and his friends had carried some
liquor also with them. Though there is no evidence to
that effect, the possibility of their carrying liquor could
not be ruled out, considering the fact that on most of
such occasions, liquor has become an integral part of
the celebrations. This view is taken by us because P.W.
1 had thrown away all the material before going to the
Police. He had not given description of the material
thrown away by him. Therefore, possibility of they
carrying liquor also could not be ruled out. The learned
counsel for the appellants wanted to capitalize this
situation also. We, however, are not inclined to accept
the argument that P.W. 1 and others had taken drinks to
a large extent and there was a quarrel between
members of the same group. Possibility of P.W. 1 and
others drinking liquor is not ruled out. At the same time, JUDGMENT it can be said that since they might have consumed
liquor they were afraid of approaching the police
immediately. This does not make any plus point in
favour of the appellants.”
13)No doubt, different persons may react differently to the same
situation. However, at the same time, as mentioned above, it appears
very improbable that when there were as many as 15 to 20 persons,
namely, the complainant and his friends, none of them even thought of
going to the Police Station to report the matter, which is odd and out of
ordinary behaviour in such cases. Instead, they chose to go to an
Advocate, who was staying at a distance of 15 kms. The persons who
were allegedly very scared would not take the risk of going a distance
of 15 kms. rather than approaching the nearby Police Station within the
jurisdiction of the area where the incident had taken place.
14)Strangely, in the process of defending the said conduct of the
complainant and his friends, the High Court became presumptuous as
it itself gave an imaginary story that there was a possibility that these
persons had consumed liquor and the material thrown by them included
liquor as well. It was not even the case of the prosecution, probable or
otherwise.
15)We may have agreed with the High Court that not reporting to the
Police and going straightaway to an Advocate could have been because of the reason that all these persons were very scared, had it been a standalone fact. However, when this fact is examined in
conjunction with other circumstances, which we narrate hereinafter, we
find that approaching an Advocate instead of going to the Police Station
to report the matter, was not that innocent a step as the prosecution
has made us to believe.
16)Even after meeting their Advocate and his advise that the matter be
reported to the police, these persons didn't come back to Ballarshah
Police Station, which was the proper Police Station for this purpose.
Instead, the FIR was lodged in Chandrapur Police Station. Things do
not end here. Mr. Umesh, Sub-Inspector, was at Chandrapur Police
Station, who had recorded the FIR. He has appeared as PW-12 during
trial. The FIR which was lodged with him is proved as Exhibit-213.
Column 15 of the FIR pertains to ‘date and time of dispatch to the
Court’. This column is left blank, which means that no date and time of
the dispatch/delivery of this FIR to the concerned Court is mentioned.
In the cross-examination, PW-12 was specifically asked about the
requirement of submitting a copy of the FIR to the concerned
Magistrate within 24 hours. He replied in the affirmative insofar as this
need is concerned. However, at the same time, he was candid in admitting that he was unable to say as to by whom and when the copy of Exhibit-213 was sent to the Magistrate. A specific suggestion was
put to him that the copy of the FIR was not sent to the concerned
Magistrate. Though he denied, but thereafter no attempt was made to
prove as to when and how the copy was sent. The necessity of
sending the copy of the FIR to the concerned Magistrate hardly needs
to be emphasized. The primary purpose is to ensure that truthful
version is recorded in the FIR and there is no manipulation or
interpolation therein afterwards. For this reason, this statutory
requirement is provided under Section 157 of the Code of Criminal
Procedure, 1973.
17)We, thus, feel that it was a glaring omission on the part of the
prosecution which lends credence to the plea of the defence about
ante-timing the FIR. It gets strengthened on finding more glaring and
intriguing events taking place thereafter, which are described
hereinafter.
18)Mr. Dilip, who was attached to the Chandrapur Police Station, sitting
as PSO on that day, was produced as PW-21. He stated in his
deposition that he was informed by PSI Sayyad about the incident and,
accordingly, he recorded the report as per the say of the complainant,
which he proved as Exhibit-114. After recording the statement, he reached the spot JUDGMENTof incident and by that time PSO of the Ballarshah Police Station had also reached the spot. Curiously, this witness did
not even disclose the names of the accused persons to P.I. Kshirsagar,
who had come from Ballarshah Police Station. This is what he said in
the cross-examination:
“2)…I had not disclosed names of accused persons to
P.I. Kshirsagar on the spot. I can not assign any reason
as to why I had not disclosed the names of accused to
P.I. Kshirsagar though I was knowning the names of
accused. It is not true to say that at that time I was not
knowing the names of the assailants and therefore I
have not given that information to P.I. Kshirsagar. It is
not true to say that the portion in front of entry No. 38
and 39 of the station diary was kept blank as per the
direction of Superintendent of Police. It is not true to
say that thereafter on the next day I have filled these
entries. It is not true to say that thereafter I have
prepared forged report. It is not true to say that I have
not sent the report and printed F.I.R. to P.S. Ballarpur on
the day of incident at about 4.45 p.m. on the day of
incident…”
19)This is even accepted by the Investigating Officer Mr. Jiwan from
Police Station Ballarshah, who had reached the spot, in the following
words:
“19…P.I. Tidke had been to the spot of incident when I
was drawing inquest panchanama. Jiwan Mahadole
and Bahadur Hazare had been to the spot before arrival
of P.I. Tidke. I can not say as to whether Manoj Ughade
had also reached the spot or not. It did not happen that
Manoj Ughade had identified one dead body. It is true
to say that P.I. Tidke had not disclosed me the names of
the assailants. It is true to say that the witnesses Jiwan
Mahadole and Bahadur Hazare had not disclosed me
the names of assailants on the spot. It is not true to say
tha Manoj Ughade was also present on the spot but he
had not disclosed me the names of the assailants.
Article C and D about the report to be forwarded to the
Civil Surgeon with dead bodies sent for post-mortem JUDGMENT examination now shown to me are bear my signature.
Their contents are correct. They are Exhs. 278 and
279. I did not received the case diary on that day up to
8.00 p.m. I was on the spot up to about 9.30 p.m.
Thereafter I visited Chandrapur City P.S. It is true to say
that on the day of incident I was not knowing the names
of assailants till 8.00 p.m. and therefore in the document
prepared by the time I have mentioned the names of
assailants as unknown persons.”
20)It, thus, becomes apparent from the aforesaid that though as per the
FIR, names of the assailants, i.e. the appellants herein, were stated to
PW-12 or PW-21, but PW-21 did not disclose these names to PW-22,
who is the Investigating Officer. In the inquest report prepared by PW-
22, no names are mentioned even when the complainant and two or
three friends of his were present on the spot. All these factors throw
suspicion about the recording of the FIR at the time stipulated in the
FIR. There are circumstances galore which indicate that the FIR was
ante-timed and the names of these two appellants were incorporated
later but showing them to be at the time when the statement was made
by the complainant on the basis of which the FIR was registered.
21)At this juncture, we would like to point out that there were a number
of persons, almost 100. The Police did not make any effort to join
independent persons in the investigation. The entry to Junona, which
is a jungle area, is by tickets. However, no efforts were made to take
the connecting evidence of this nature. 22)In the aforesaid scenario, we find that the present case is fully
covered by the judgment of this Court in Meharaj Singh v. State of
Uttar Pradesh, (1994) 5 SCC 188, where the importance of recording
of FIR and the requirement of dispatching the copy thereof to the
Magistrate within 24 hours with the consequences frought with danger
was highlighted in the following manner:
“12. FIR in a criminal case and particularly in a murder
case is a vital and valuable piece of evidence for the
purpose of appreciating the evidence led at the trial. The
object of insisting upon prompt lodging of the FIR is to
obtain the earliest information regarding the
circumstance in which the crime was committed,
including the names of the actual culprits and the parts
played by them, the weapons, if any, used, as also the
names of the eyewitnesses, if any. Delay in lodging the
FIR often results in embellishment, which is a creature
of an afterthought. On account of delay, the FIR not only
gets bereft of the advantage of spontaneity, danger also
creeps in of the introduction of a coloured version or
exaggerated story. With a view to determine whether the
FIR was lodged at the time it is alleged to have been
recorded, the courts generally look for certain external
checks. 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 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. The
second external check equally important is the sending
of the copy of the FIR along with the dead body and its
reference in the inquest report. Even though the inquest
report, prepared under Section 174 CrPC, is aimed at
serving a statutory function, to lend credence to the
prosecution case, the details of the FIR and the gist of
statements recorded during inquest proceedings get
reflected in the report. The absence of those details is
indicative of the fact that the prosecution story was still JUDGMENT
in an embryo state and had not been given any shape
and that the FIR came to be recorded later on after due
deliberations and consultations and was then ante-timed
to give it the colour of a promptly lodged FIR. In our
opinion, on account of the infirmities as noticed above,
the FIR has lost its value and authenticity and it appears
to us that the same has been ante-timed and had not
been recorded till the inquest proceedings were over at
the spot by PW 8.”
Neither the
trial court nor the High Court has appreciated the aforesaid
circumstances which go to the root of the matter and raise
sufficient doubt about the involvements of the appellants in the
present case.
23)We are, therefore, of the opinion that the appellants are entitled to
the benefit of doubt and the case against them is not proved beyond
reasonable doubt so as to uphold their conviction into a serious charge
of murder under Section 302 read with Section 34 of IPC.
24)The appeal is, accordingly, allowed and the conviction of the
appellants under the aforesaid provisions is set aside. The appellants,
who are in custody, shall be released forthwith, if not required in any
other case.
JUDGMENT (Dr. B.S. Chauhan)
(A.K. Sikri)
New Delhi; May 23, 2014.