Bombay High Court
Dhondiram Balu Dhotre vs The State Of Maharashtra on 28 January, 2013
Author: A. R. Joshi
Bench: Naresh H. Patil, A. R. Joshi
PPD
1
APEAL.524-03.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.524 OF 2003
1. Dhondiram Balu Dhotre,
Age : 42 years, Occ.Service,
2. Satish Vithal Dhotre,
Age : 19 years, Occ. Labour,
3. Ashok Balu Dhotre,
Age : 31 years, Occ. Labour,
4. Vitthal Balu Dhotre,
[Died during pendency of
Appeal]
All R/o. Pandharpur, Dist.Solapur.
(At present lodged in Yerwada
Central Prison, Pune). ..APPELLANTS
[Orig.Accused Nos.1,2, 4 & 5]
Versus
The State of Maharashtra ..RESPONDENT
....
Mr. S.R. Chitnis, Senior Counsel a/w. Mr. Ujwal Agandsurve,
Advocate for the Appellants.
Mrs. V.R. Bhosale, APP, for the Respondent - State.
Mr. Jaydeep Mane, Advocate for orig.complainant(appearance of
dated 28.1.2013).
....
CORAM : NARESH H. PATIL, &
A. R. JOSHI, JJ.
DATE OF RESERVING
JUDGMENT :10TH JANUARY, 2013 DATE OF PRONOUNCING OF JUDGMENT : 28TH JANUARY, 2013 1 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 2 APEAL.524-03.doc JUDGMENT: [PER A. R. JOSHI, J.]
1. Heard rival arguments on this Criminal Appeal preferred by the appellants/orig.accused Nos.1, 2, 4 & 5 challenging the judgment and order of conviction dated 17.2.2003 passed by the II Additional Sessions Judge, Pandharpur in Sessions Case No.64 of 2000. By the impugned judgment and order, the appellants/orig.accused Nos.1, 2, 4 & 5 were convicted for the offence punishable under Sections 147, 148, 302 read with 149 and 324 read with 149 of IPC. The major punishment inflicted on the said appellants/accused is punishable under Section 302 read with 149 of IPC whereby they were sentenced to suffer imprisonment for life and to pay fine of Rs.500/- each, in default to suffer further imprisonment for a period of two months each. They were sentenced to suffer other minor sentences for other offences. Each of the substantive sentences were directed to run concurrently. By the said impugned judgment and order, all the appellants/accused were 2 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 3 APEAL.524-03.doc acquitted of the offence punishable under Section 396 of IPC and also of the offence punishable under Section 135 read with Section 37(1) of the Bombay Police Act.
2. Being aggrieved by the said judgment and order, appellants/accused Nos.1, 2, 4 & 5 preferred the present appeal.
During pendency of the appeal, appellant Nos.1 & 4 were on bail. However, during pendency of the appeal appellant No.4/original accused No.5 died leaving present three appellants i.e. original accused Nos.1, 2 & 4 in the matter.
3. The case of the prosecution, in nutshell, is as under :-
In the incident of assault which took place on 9:30 p.m. on 10.3.2000 at Bhadule Square, Pandharpur Town, one Dilip Pawar was murdered. He was ex-member of the Pandharpur Municipal Council and husband of the then President of the said Council. Allegedly there was business and political rivalry between him and appellants/accused. During the incident, the appellants along with a juvenile appellant / original accused No.3, took part in the said assault. The appellants/ orig.accused 3 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 4 APEAL.524-03.doc Nos.1, 4 & 5 are brothers and they are related to the wife of deceased i.e. PW-3 Surekha Pawar. They are sons of the paternal aunt of PW-3 Surekha Pawar. Accused No.2 is son of accused No.5, and the juvenile offender i.e. accused No.3 is the nephew of accused Nos.1 & 5. They all are residents of the same area near Bhadule Square, Pandharpur where the victim and his family members were also residing.
4. On the night of the incident, the victim had left his house for shaving his beard. He met PW-1 Talat Shaikh and both were chit-chatting. They arrived at Bhadule square and met other persons. That time, appellant/accused No.1 was sitting outside one closed shop. He called upon and caught hold of the shirt collar of the victim by his neck and started abusing him.
Talat Shaikh (PW-1) and one Shahaji intervened. However, appellant/accused No.1 gave a blow to Shahaji. Thereafter appellant/accused No.1 took out a chopper. There was hue and cry and hearing shouts of accused No.1, his brothers (orig.accused Nos.4 & 5) and nephew (orig.accused No.2) and the juvenile offender Atish, gathered there.
4 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 5APEAL.524-03.doc Appellant/orig.accused No.4 was armed with sword. Accused No.2 and juvenile offender were armed with choppers. Accused No.5 was armed with stick. All the appellants/accused and the juvenile offender assaulted the victim Dilip Pawar by means of weapons. By that time, PW-3 Surekha Pawar - wife of the victim, rushed to the spot and intervened the assault.
Appellant/accused No.1 pushed her aside. As PW-1 Talat Shaikh had intervened, he was assaulted by appellant/accused No.2 by means of chopper causing bleeding injury on his head. Due to the severe assault on various parts of the body, the victim Dilip fell unconscious on the road. That time, appellant No.4/orig.accused No.5 took up a tile lying on the road and hit the victim on his head. Thereafter all the appellants ran away.
One auto-rickshaw was stopped and the injured Dilip was taken to Municipal Council Hospital by PW-1 & PW-3. History was narrated to the Medical Officer (PW-8) Dr. Sudhir Deshpande.
He examined the injured and noted the injuries and made entries in the medical papers. He referred the victim to Civil Hospital, Solapur and send a letter to the Pandharpur Town Police Station.
5 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 6APEAL.524-03.doc On medical advice victim Dilip was taken to Civil Hospital, Solapur where on duty Medical Officer declared him dead on admission.
5. Meanwhile PW-10 PSI Rohidas Kamble who has received anonymous telephone call about the incident of assault, had rushed to the Municipal Council Hospital at Pandharpur and thereafter reached the Civil Hospital, Solapur by 12:00 midnight. He contacted PW-3 Surekha Pawar and recorded her statement and forwarded it along with his report through police constable Kadam to Pandharpur Town Police Station for registration of offence.
6. During the investigation, inquest panchnama was conducted. Then the dead body of Dilip Pawar was sent for postmortem. The cause of death was multiple injuries on head, face and both upper limbs with fracture of skull and subdural hematoma with contusion on brain and fracture of radiud-ulna left.
7. In the meantime the news regarding death of ex-
6 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 7APEAL.524-03.doc municipal Councilor and husband of sitting President of Municipal Council, spread in Pandharpur city and atmosphere became tense. Hence PW-12 Netaji Dange called PW-10 PSI Rohidas Kamble to Pandharpur. On receiving the statement of PW-3 Surekha Pawar, an offence was registered at C.R. No.42 of 2000 at Pandharpur police station against the appellants/accused and also against the juvenile offender for the offence of murder and rioting armed with deadly weapons. The offence was so registered at 2:30 a.m. on 11th March, 2000 and further investigation was carried out by PW-12 Netaji Dange who had in the meantime visited the place of assault at Bhadule square and deployed police force for law and order maintenance.
8. It is also case of the prosecution that while PW-10 PSI Rohidas Kamble had left Pandharpur police station for attending the hospital, accused No.2 and one juvenile offender-Atish attended the Pandharpur town police station with blood stained chopper in the hand of appellant/accused No.2. Police Head Constable PW-11 Gurling Kamble seized the said chopper under panchnama in presence of two witnesses and sent both the 7 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 8 APEAL.524-03.doc accused No.2 and juvenile offender-Atish for medical examination to Municipal Council Hospital, Pandharpur and they were examined and treated by PW-8 Dr. Sudhir Deshpande.
9. On 11.3.2000 spot panchnama was conducted at about 6:00 a.m. at Bhadule square and from that place one chopper and two pieces of tiles stained with blood along with pair of slippers and clothes, were seized. On the same day, appellants/accused Nos.1, 2, 4 and juvenile offender-Atish were arrested. The clothes of the victim Dilip Pawar were taken charge of under the panchnama. On 12.3.2000 the statements of the witnesses were recorded and on that day appellant No.4/orig.accused No.5 was put under arrest. The said appellant No.4/orig.accused No.5 is since deceased as he died during pendency of the appeal.
10. It is also case of the prosecution that on 14.3.2000 appellant/accused No.1 made a statement in presence of two panch witnesses including PW-7 Pandurang Jadhav and subsequently at his instance one gold chain was recovered from 8 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 9 APEAL.524-03.doc his house. On 16.3.2000 appellant/orig.accused No.4 made a voluntary statement in presence of two panch witnesses including PW-4 Mahesh Tendulkar, and at his instance blood stained sword and chopper were recovered which were concealed under the bushes of cactus situate by the side of Pandharpur-Sangola road. During investigation, blood samples of the accused persons were collected. The seized articles were sent for the chemical analysis and on completion of investigation charge-sheet was filed against the appellants/accused and the case was committed to the Court of Sessions.
11. All the appellants/accused pleaded not guilty to the said charge. Their defence is that of total denial and false implication. According to them, the victim was a bootlegger and was a known goonda of the said locality and had political connections. It is also defence that due to activities of victim, he had number of enemies and as such on the relevant night, he was assaulted by some unknown persons and they could not be traced out by the police. Police have falsely implicated the 9 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 10 APEAL.524-03.doc appellants and other co-accused. No defence evidence is produced during the trial.
12. During the trial, all the present appellants/accused and juvenile offender were before the trial Court and at the time of framing of the charge, juvenile offender - Atish preferred an application for treating him differently as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Said application was heard and directions were given by the trial Court that the original accused No.3 Atish be treated as a juvenile and be dealt with according to law. Hence the case against him was sent to the appropriate Court i.e. Juvenile Justice Board, Solapur. Consequently the present appellants/orig.accused Nos.1, 2, 4 & 5 were tried and convicted by the impugned judgment and order.
13. In order to substantiate the charges leveled against the appellants/accused, the prosecution examined 12 witnesses. Out of them, PW-1 Taulat Shaikh, PW-2 Salim Shaikh and PW-3 Surekha Pawar are the eye witnesses. PW-4 Panch Mahesh 10 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 11 APEAL.524-03.doc Tendulkar is on the aspect of memorandum statement of appellant/accused No.4 and recovery of sword and chopper at his instance. PW-5 is panch Prakash Musale and he is on the aspect of recovery of clothes of all the five accused under the panchnama (Exh.43). PW-6 one Sunil Patil is the jeweler who identified the gold chain which was sold to PW-3 and which the victim was wearing on the night of the incident and which was misplaced / stolen during the incident. PW-7 is panch witness Pandurang Jadhav on the aspect of memorandum statement of appellant/accused No.1 and subsequent recovery of gold chain from his house under the panchnama. PW-8 is Dr. Sudhir Deshpande who examined PW-1 and victim and also examined the appellants/accused Nos.1, 2 & juvenile offender (accused No.3) at Hospital at Pandharpur. He examined eye witness PW-1 Talat Shaikh and made entry to that effect and issued certificate.
However, he did not give any treatment to this witness as said witness had left the hospital without informing the duty staff.
PW-9 is another doctor by name Dr.Yogesh Kokadwar from Civil Hospital, Solapur. He examined eye witness Taulat Shaikh (PW-
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1) on the night between 10th & 11th March, 2000 at about 12:15 hours. PW-10 is PSI Rohidas Kamble from Pandharpur Town Police Station. PW-11 is police head constable Gurling Kamble again attached to Pandharpur Town Police Station and PW-12 is Police Inspector Netaji Dange attached to Pandharpur Town Police Station and who took over the investigation in the matter.
14. During the arguments, following points were raised on behalf of the appellants/accused challenging the judgment and order. The main thrust of the argument was on the alleged deficiencies in the investigation by the police and partisan act on the part of the Pandharpur police in order to help then Mayor of Pandharpur Municipal Council PW-3 Surekha Pawar. Much is argued mentioning the conduct of the police officers in not recording the information received on telephone regarding commission of cognizable offence at the earliest point of time and subsequently recording the statement of PW-3 and treating as First Information Report (Exh.36). The points which were raised challenging the judgment and order, are narrated hereunder :
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(i) firstly, the Doctor who performed the postmortem on the dead body has not been examined and as such the evidence of prosecution is lacking on the aspect as to how the death had occurred and whether the injuries sustained by the victim were sufficient to cause the death in the ordinary course;
(ii) secondly, there was no occasion for PW-8 Dr. Sudhir Deshpande to opine as to whether the injuries sustained by the victim as observed by him when the victim was alive were sufficient to cause death in the ordinary course.
In other words such substantive evidence of PW-8 as appearing in his evidence cannot be taken as furthering the case of prosecution regarding the immediate cause of death was the injuries sustained by the victim.
(iii) thirdly, Exh.36 which is allegedly treated as First Information Report being the statement of Surekha Pawar cannot be treated as First Information Report and as such it has only the value at par with the statement under 13 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 14 APEAL.524-03.doc Section 161 of Cr.P.C.. This is so because of the starting of the investigation as to visiting the spot and conducting the scene of offence panchnama etc. prior to registering the offence against the appellants and other co-accused;
(iv) fourthly, the substantive evidence of the alleged eye witness Taulat Shaikh (PW-1) on the aspect as to availability of the electric poll and availability of the light during the incident is entirely an omission. This being the vital aspect so far as the identity of the appellants/accused is concerned, the said alleged eye witness cannot be treated as a witness seeing the appellants/accused assaulting the victim on that relevant night;
(v) fifthly all the injuries sustained by the victim were of superficial nature and there is nothing brought on record by way of examining the doctor who had performed the postmortem that they were sufficient to cause death in the natural course of events.
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15. Now coming to the point Nos.(i), (ii) & (v) raised on behalf of the appellants, it must be mentioned that the postmortem report regarding the deceased was admitted by the defence during the trial. Moreover PW-8 Dr. Sudhir Deshpande was the medical officer at Pandharpur who at the first opportunity examined the victim and noted down the injuries sustained by the victim. Said injuries noted-down by PW-8 are mentioned hereunder for the sake of ready reference. Moreover the observations of the said PW-8 and his opinion regarding the said injuries is also detailed below.
"5. On examination of Dilip Pawar, I noticed the following injuries.
1. Incised wound, size 22 cm x ½ cm at right side of face, oblique, bowing from right fronto parital region, downwards extending right laterally to right eye over right maxila bone deep.
2. Incised wound, 10 cm x ½ cm oblique, 1 cm right lateral and parallel to injury no.1.
3. Incised wound, size 9 cm x ½ cm, over right fore-arm, lower 1/3rd posterior aspect, bone deep;
4. Incised wound, size 8 cm x ½ cm oblique, crossing vertically at injury no.3.
5. Deep incised wound, size 10 cm x ½ cm oblique, left wrist joint, posterior aspect, bone deep with deformity of left wrist joint.15 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 16
APEAL.524-03.doc
6. Incised wound, size 8 cm x 1 cm oblique, left ipital region, bone deep.
7. Incised wound, size 9 cm x 1 cm oblique, right occipital region, bone deep.
8. Incised wound, size 8 cm x 1 cm oblique right lateral at injury no.7, bone deep.6. The above described injury No.1, 2, 6, 7 and 8
were on vital parts. These injuries were sufficient in ordinary course of nature to cause death. .........."
Much is argued on the said expert opinion given by PW-8 Dr. Sudhir Deshpande as referred above on the aspect of sufficiency of the injuries in ordinary course of nature to cause death. It is argued by learned Senior Counsel on behalf of the appellants that there was no occasion for PW-8 Dr. Sudhir Deshpande to opine as to whether the injuries observed by him on the victim were sufficient in the ordinary course of nature to cause death. This was more so, further argued, when the victim was then still alive when he was examined by PW-8 Dr. Sudhir Deshpande. On this aspect, it is evident that the substantive evidence of PW-8 Dr. Sudhir Deshpande was recorded when the matter was put to trial and in fact the victim was dead immediately on the same day of the incident as he was declared dead on admission at Civil Hospital, Solapur. It must not be lost 16 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 17 APEAL.524-03.doc sight of the fact that said PW-8 Dr. Sudhir Deshpande is a medical practitioner and had occasion to observe the injuries sustained by the victim as detailed above. It was his expert opinion appearing in his substantive evidence in para No.6 as mentioned above on the sufficiency or otherwise of the injuries causing death of the victim. Though it is a factual position that the medical officer who performed the postmortem has not been examined in the matter, still it cannot be lost sight of that the said postmortem report was admitted on behalf of the defence and that PW-8 Dr. Sudhir Deshpande is the medical officer who observed the injuries on the victim at the first opportunity and then he opined on the effect of said injuries when said victim had died even prior to admitting him in the Civil Hospital, Solapur. In our considered view, there is nothing to doubt the case of the prosecution in view of the evidence of PW-8 Dr. Deshpande that the injuries sustained by the victim were vital and in fact he died immediately within few hours of the assault.
Consequently the aforesaid point Nos.(i), (ii) & (v), cannot be taken as a mitigating circumstance against the prosecution.
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16. Now coming to the point No.(iii) raised as to Exh.36, statement of PW-3 Surekha Pawar, not to be treated as a first information report in the strict sense of the meaning of the FIR, it is seen that the trial Court had accepted this objection and still considered the effect of said Exh.36, being statement under Section 161 of Cr.P.C.. Otherwise also in our considered view a cryptic telephonic information cannot get the character of the FIR and in that event even if it is accepted that the Pandharpur police station received intimation over telephone regarding the incident of assault, such intimation to the police cannot be treated as First Information Report in the strict sense. On this aspect, much is argued by the learned Senior Counsel for the appellants that no station diary entry has been produced by Pandharpur police regarding receipt of actual information. Much emphasis was placed on such non-production of station diary and it is argued that only because there was no names of assailants given over the telephone by the informant, such entry is not forthcoming. It is apparent that in the present matter prior to recording the statement of PW-3 Surekha Pawar and sending 18 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 19 APEAL.524-03.doc it to Pandharpur police station for registration of offence, at least part of the investigation has already started inasmuch as appellant No.2 and juvenile offender (accused No.3) were taken in custody by the police at Pandharpur Town police station when apparently they appeared at the police station when appellant/accused No.2 was holding a blood stained knife in his hand. Though certain part of the investigation/enquiry procedure was started by the police prior to treating Exh.36 as First Information Report, this fact in itself cannot be treated as such an illegality as to doubt the case of prosecution and to throw away the substantive evidence of PW-3 Surekha Pawar.
Otherwise also the instances of belated formal recording of the First Information Report after starting of the investigation, are not uncommon. Considering the substantive evidence of prosecution witnesses, mainly of PWs-1, 3, 10, 11 & 12, it cannot be said that there is any material defect in the case of prosecution so far as initiation of the proceedings against the appellants/accused. In the result, this third objection raised on behalf of the appellants shall not sustain.
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17. The fourth point canvassed regarding omission in the substantive evidence of PW-1 Talat Shaikh on the aspect of availability of sufficient electric light on the spot during the incident, we have gone through the reasoning given by the trial Court. It is specifically mentioned and rightly so that said PW-1 Talat Shaikh was knowing the appellants/accused and they were not stranger to him. It has appeared in his substantive evidence in the notes of evidence in para-2 that he know all the four accused and Atish (juvenile offender) since they and said PW-1 are the residents of the same lane at Pandharpur. He had further stated that all the three accused and Atish were residing opposite the house of Dilip Pawar (the victim) at the time of incident. He had also deposed that there was enmity between Dilip Pawar and "Dhotre's" from 10 years. The word "Dhotre's" signify the accused persons who are having surname "Dhotre". Considering this substantive evidence of PW-1 Talat Shaikh as to his well acquaintance with the appellants/accused, it is now insignificant whether his substantive evidence is affected by omission on the aspect as to presence of electric light. According to this witness 20 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 21 APEAL.524-03.doc he was immediately present with the victim Dilip Pawar and had witnessed the assault in the close proximity. Not only that but he had also sustained severe injuries. At the cost of repetition, it must be mentioned that though initially he attended the hospital at Pandharpur and, he left without informing the staff on duty later on the same midnight, he attended the Civil Hospital, Solapur and was examined and treated by PW-9 Dr. Yogesh Kokadwar. Following injury was observed on his person by the attending doctor. Said injuries are "Incised wound over mid-
frontal region size 2 inch x ½ inch.". According to the doctor's opinion the injury was caused by sharp edged weapon and the age of injury was within 24 hours. Considering this factual position and accepting that said PW-1 had also sustained injury during the incident of assault on the victim, no doubt can be entertained as to said PW-1 identifying the appellants/accused.
In the result, this fourth objection also shall not sustain.
18. In summing up, we have observed that the substantive evidence of PW-1 & PW-3 coupled with the expert evidence of Doctors PW-8 & PW-9 is of such a overwhelming character so as 21 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 22 APEAL.524-03.doc to prove the guilt of the appellants/accused for the offence of murder, beyond reasonable doubt.
19. Prior to parting with this judgment, the last submission advanced on behalf of the appellants/accused is required to be mentioned. It is alternatively argued that if the appellants/accused are held guilty for the assault on the victim, the injuries were of such a superficial nature not to cause death in the ordinary course of nature. On this aspect, reference is required to be made to the injuries observed by the attending doctor PW-8 Dr. Sudhir Deshpande, as detailed above, so also the injuries mentioned in the postmortem report Exh.30 which is an admitted document. There is a fracture of right maxillary bone vertical - as mentioned in injury No.2 in column No.17 of the postmortem report. So also there is fracture of left radius ulna. In fact there are almost 20 injuries detailed in the column No.17 of the postmortem report (Exh.30). It is significant to note the observations as to the probable cause of death appearing in the postmortem report. It is mentioned as multiple chop wounds on the head, face and both upper limbs with 22 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 23 APEAL.524-03.doc fracture of skull with subdural haematoma with contusion on brain with fracture radius/ulna left. We have also observed that on the said Exh.30, on the last page there is an endorsement showing the order passed by the trial Court to the effect "exhibited as per Section 294 of Cr.P.C."
20. Considering in totality the effect of said evidence of prosecution as to the injuries caused to the victim and probable cause of death and mainly considering the substantive evidence of PW-8 Dr. Sudhir Deshpande in our considered view even the last submission is not acceptable.
21. During the arguments, various authorities are cited before us on behalf of the appellants/accused. On the aspect of appreciation of the evidence of an eye witness, an unreported judgment is cited in the matter of Criminal Appeal No.114 of 2008 (Lahu Kamlakar Patil & Anr. Vs. State of Maharashtra) decided by the Hon'ble Apex Court . In our view, whether or not a particular witness is to be accepted as trustworthy or not, is dependent on the facts and circumstances of the particular case.
23 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 24APEAL.524-03.doc In our considered view, the substantive evidence of PW-1 & PW-3 cannot be doubted though it is strongly argued that they are interested witnesses and further that PW-3 was then Mayor of Pandharpur Town and was an influential person capable of dictating the terms with local police station.
22. Another authority is cited in the matter of Bheru Singh s/o. Kalyan Singh Vs. State of Rajasthan, reported in (1994) 2 SCC 467. The contents in paragraph Nos.15, 16 & 17 of the said authority were emphasized by the learned Senior Counsel for the appellants mentioning that the confessional FIR lodged by the accused is not admissible in the evidence as hit by Section 25 of the Evidence Act and it is acceptable only to the extent permissible under Section 27 of the said Act. This authority was placed before us in order to argue that though the appellant/accused No.2 and juvenile offender (accused No.3) themselves approached the Pandharpur police station immediately after the incident of assault and after certain statements were made by them incriminating them with the offence of assault, such statements are hit by Section 25 of the 24 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 25 APEAL.524-03.doc Evidence Act. On this aspect, in our considered view even non-
confessional part of the FIR can be used against the accused as per the provisions of Section 8 of the Evidence Act so far as the conduct of the person is concerned. In any event, even the presence of appellant/accused No.2 and juvenile offender immediately after the assault is definitely a circumstance showing the involvement of the said accused in the incident of assault.
23. The third authority cited before us is in the matter of Niranjan Panja Vs. State of West Bengal reported in (2010) 6 SCC 525. By taking shelter of this authority, it is argued that the major discrepancies in the prosecution evidence are fatal to the prosecution. In our considered view, there is nothing in the substantive evidence of the main eye witnesses PW-1 & PW-3 so as to accept the submission on behalf of the appellants that there are no material discrepancies going to the root of the matter.
Even when PW-2 another eye witness had turned hostile to the case of prosecution on the actual assault on the victim at the hands of the appellants, still the presence of the appellants and 25 / 26 ::: Downloaded on - 09/06/2013 19:36:05 ::: 26 APEAL.524-03.doc assault on the victim are the facts established through his evidence. In other words, it must be said that there are no any material discrepancies in the case of the prosecution so as to negate its case and to come to the different conclusion than that arrived at by the trial Court.
24. In view of the above, it must be said that the prosecution has proved the charges against the appellants/accused for which they have been convicted vide the impugned judgment and order. Consequently there is no merit in the appeal and the same is accordingly disposed of with following order :
:: O R D E R ::
[i] Criminal Appeal No.524 of 2003 stands dismissed.
(A. R. JOSHI, J.) (NARESH H. PATIL, J.)
P.P. Deshmane, (PS)
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