Bombay High Court
Sham Alias Raju R. Anpur And Others vs State Of Maharashtra on 31 July, 1996
Equivalent citations: 1997CRILJ581, 1997(1)MHLJ337
Author: Ranjana Desai
Bench: Ranjana Desai
JUDGMENT N.D. Vyas, J.
1. The present Appeal is directed against the judgment and order dated 15th February 1994 passed by the Additional Sessions Judge, Pune convicting all the three Appellants (Original Accused) of having committed offence under Section 302 read with Section 34 of IPC and also under Section 308 read with Section 34 of IPC and sentencing them to suffer life imprisonment for the offence punishable under Section 302 of IPC and three years R.I. for the offence punishable under Section 308 of IPC. The sentences are further directed to run concurrently. Being aggrieved, the present Appeal is preferred.
2. The prosecution case is as follows :-
All the Accused were at the relevant time residents of Bhimnagar locality of Pune. Accused Nos. 2 and 3 are friends of accused No. 1. The complainant Pandit Waman Landge (i.e. PW-6) and his brother Vasant (i.e. the deceased) were also living in the said locality. Pandit had married Accused No. 1's sister by name Parvatibai. Till the date of the incident, complainant Pandit, his brother Vasant and complainant's wife Parvatibai were residing together in the same locality. Further undisputed facts are, after marriage with Parvatibai, there arose matrimonial disputes between Pandit and Parvatibai and for a short time, she resided at the house of Accused No. 1 and also filed some matrimonial proceedings before a year and half of the incident. However, there was reconciliation between them and as on the date of the incident, she was residing with Pandit. The incident in question took place on 30th May 1992 at about 11.00 p.m. It is the case of the prosecution that on that day, complainant was returning home at about 11.00 p.m. and he noticed that a quarrel was going on between Accused No. 1 Sham and Vasant in front of the shop of one Sudam Kavde. Accused No. 2 Shahaji and Accused No. 3 Dagadu were also present there. That time, Accused No. 1 was armed with a knife. Accused No. 2 Shahaji was armed with a sword and Accused No. 3 Dagadu was also armed with a knife. Pandit intervened in the quarrel which was going on and at that time, Accused No. 1 stabbed Pandit on his chest, stomach and arm. Accused Nos. 2 and 3 also assaulted Pandit with knife and sword. Due to blows, Pandit fell down and due to fear, Vasant started running but was chased by the Accused and finally assaulted at the rear side of Shiv Sena Office which was not far away. Parvatibai, wife of Pandit who had arrived there hired an autorickshaw and took Pandit and Vasant in that autorickshaw to Mundhava Police Chowky. At the said Police Chowky, Pandit alone went inside and returned within two minutes after having informed the police personnel of the said Police Chowky about the incident. They were directed to go to the hospital for having the injuries of Pandit and Vasant attended to immediately. Thus, all three of them went to Sassoon Hospital, Pune in the same autorickshaw whereat on examination, Vasant was declared dead while Pandit was admitted in the Hospital as indoor patient and remained there for 10 days. At about 1.00 a.m. on 31st May 1992 API Popat Kadus (PW-9) recorded Pandit's FIR. Thereafter, investigation was carried on by P.I. Bholbar (PW-12). During investigation, Police recorded inquest panchanama of the dead body of Vasant and the same was sent for post mortem. Vasant was found to have received 23 incised and stab injuries on the body and six internal injuries and Dr. Wable (PW-5) who performed post mortem on him opined that death was due to traumatic and haemorrhagic shock as a result of multiple stab injuries. Pandit was examined by Dr. Bhoir (PW-10) and was found to have received two stab injuries on his chest, one stab injury on left sub-costal margin (below the rib) and two contused lacerated wounds. He opined that the said injuries were caused by a sharp weapon. It was the prosecution case that the injuries found on the person of Pandit were sufficient to cause death in an ordinary course. During investigation, blood stained clothes of deceased Vasant as well as clothes of Pandit were seized, spot panchanama was also recorded and the Police also got prepared a map of the scene of offence from a surveyor. PW-12 P.I. Bhosbar carried out further investigation and arrested Accused No. 2 and 3 on 1st June 1992 and seized their clothes which were stained with blood. Accused No. 1 on the same day surrendered to the Police and his clothes were also taken possession of as they were also found stained with blood. As Accused had received some injuries, on 2nd June 1992 they were sent for medical examination. Dr. Deshpande examined all the Accused and noticed that Accused Nos. 1 and 2 must have received injuries while inflicting the blows on the complainant and/or the deceased. On 11th June 1992, Accused No. 1 gave discovery statement regarding knife and sword, and thus, two weapons were recovered. The prosecution examined 13 witnesses in all, out of which Pandit (PW-6) and Nathu Rambhau Kadus (PW-8) were the only eye-witnesses. However, PW-8 did not support the prosecution. The second category of witnesses on which the prosecution based its case was of the panch witnesses, in respect of panchanamas of seizure of clothes of Accused Nos. 2 and 3 and also of Accused No. 1, the panchas were examined. The third category of witnesses was made up of doctors who had performed post mortem, attended to Pandit and attended to the injuries on Accused Nos. 1 and 2. The Investigating Officers belonging to fourth category consisted of API Kadus (PW-9) who had recorded FIR of Pandit. PW-12 PI Bhoibar who conducted investigation till 6th June 1992 and later on PW-13 PI Limaye who further investigated and ultimately filed the charge-sheet. Thus, from the above, it is obvious that PW-6 Pandit was the only eye-witness to the entire incident. As far as the defence is concerned, the defence taken was of total denial, however, they examined Parvatibai as the only defence witness.
3. The learned Trial Judge, while finding the Accused guilty of the offences mentioned hereinabove, gave finding inter alia to the effect that the deceased Vasant met with homicidal death and that Exh. 26 was in fact the FIR as a result whereof, investigation was set into motion. He further held that in view of the absence of proof of definite blood group of the deceased Vasant, the evidence regarding clothes of Accused which were found blood stained was not found satisfactory. The learned trial Judge came to the conclusion that the evidence regarding recovery of weapon also could not be relied upon. Thus, the learned trial Judge came to the conclusion that the only circumstances which could be relied upon were the ocular testimony of the complainant Pandit with the corroborative circumstance of immediate lodging of FIR and immediate conducting of investigation with corroborative circumstances of medical evidence. Before us, Shri Chitnis, learned counsel appearing for the Appellants, submitted that as far as medical evidence was concerned, he had no quarrel with the same. However, he submitted that his grievance was in respect of only two or three aspects of the judgment. Thus, except the said grievances, he did not assail the rest of the judgment.
4. His first submission was that the statement of Pandit i.e. Exh. 26 could not have been and should not have been treated as a First Information Report (FIR for short) under Section 154 of the Cr.P.C. It was his submission that the entry (Exh. 47) in the police station diary of Vanwadi Police Station, Pune was not only first in point of time but satisfied all the ingredients of an FIR and should have been therefore treated as FIR. Thus, it was his submission that the learned trial Judge had erred in considering Exh. 26 as the FIR. He relied on the decision of a Division Bench of this Court reported in 1972 Cri LJ 1229 wherein it was inter alia held that in a given case station diary entry would constitute FIR. This decision, however, does not help Mr. Chitnis inasmuch as it was also held that the investigation does not start when the Police Officer leaves the police station for the scene of offence to make inquiries, but it starts only when he reaches the scene. It was also held that when the FIR is not admissible in evidence for certain reasons, the entry in the station diary will constitute FIR and lend the corroboration. The other decision cited by Mr. Chitnis viz. 1989 Cri LJ 1350 (Raj) and (1985) 2 Crimes 624 : (1985 Cri LJ 1933) (Bombay) do not help him. In 1989 Cri LJ 1350, no doubt it is held that a telephone message can be treated as FIR but the same should not be cryptic and should contain necessary particulars. As far as the decision reported in (1985) 2 Crimes 624 : (1985 Cri LJ 1933) (Bombay) we agree with the ratio of the said judgment that the whole report need not be in the FIR form and that only a substance thereof need be so entered.
In order to appreciate his submission, it would be advantageous as to first understand what FIR is. The 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 testimony led at the trial. The object of noting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstances in which the crime was committed including the names of the actual culprits and the part played by them, the weapons if any used as also the names of the eye-witnesses if any. The delayed FIR might be suspected as it is likely to contain embellishments. The Supreme Court had the occasion to consider what amounts to FIR and in its decision in the matter of Tapinder Singh v. State of Punjab, , the Supreme Court inter alia hold that a cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report and the mere fact that this information was the first in point of time does not by itself clothe it with the character of first information report. It further held : "The question whether or not a particular document constitute a first information report has, broadly speaking to be determined on the relevant facts and circumstances of each case." In that case, the Supreme Court was dealing with information which was received by the Police Station which was taken down in the daily diary of the Police Station. However, it was a cryptic and anonymous oral message which did not in terms specify any cognizable offence. The Supreme Court again in its decision in the matter of Soma Bhai v. State of Gujarat, held : "It is true that under Section 154 of the Cr.P.C. the first information is the earliest report made to the Police Officer with a view to his taking action in the matter .............. The message given to the Surat Police Station was too cryptic to constitute a first information report within the meaning of Section 154 of the Code and was meant to be only for the purpose of getting further instructions." It was further observed : "The FIR is required to state all the necessary facts and a cryptic message by itself could not satisfy such requirement." Lastly, the Supreme Court had again the occasion to consider what an FIR is in the case of Ramsinh B. Jadeja v. State of Gujarat, . The Supreme Court while dealing with the question whether a telephonic message amounted to FIR or not inter alia observed : "If the telephonic message is cryptic in nature and the officer in-charge proceeds to the place of occurrence on the basis of that information to find out the details of the nature of the offence itself, then it cannot be said that the information which had been received by him on telephone shall be deemed to be first information report." It further observed : "The object and purpose of giving such telephonic message is not to lodge the first information report, but to request the officer in-charge of the police station to reach the place of occurrence. On the other hand, if the information given on telephone is not cryptic and on the basis of that information, the officer in-charge is prima facie satisfied about the commission of a cognizable offence and he proceeds from the police station after recording such information, to investigate such offence then any statement made by any person in respect of the said offence including about the participants, shall be deemed to be a statement made by a person to the police officer "in the course of investigation" covered by Section 162 of the Cr.P.C. In the light of the above decision let us examine the facts of the present case. Exh. 47 is the entry in the police station diary of Vanwadi Police Station. It appears that after the complainant along with the deceased and Parvatibai reached Mundava Police Chowky, the telephonic message was sent to Vanwadi Police Station by the said Chowky. This, according to Mr. Chitnis, should have been treated as an FIR. The entry, which is in Marathi, states as follows :-
"That from Mundava, P.C. No. 4428 had telephoned informing that at Bhimnagar, a fight had taken place in which two persons were injured by knife or sword and they were coming to Vanwadi Police Station in an autorickshaw; that they should be immediately taken to Sassoon Hospital for treatment and on receiving this information, API Kadus immediately left for Sassoon Hospital."
On the other hand, Exh. 26 which is treated by the learned trial Judge as the FIR was recorded at 1.00 p.m. i.e. immediately after Pandit who was seriously injured, received the necessary treatment and the same is a detailed information about the incident which includes time, place and names of the assailants and in what manner the complainant as well as the deceased Vasant were attacked.
5. If Exh. 26 is compared with Exh. 47, it leaves no doubt in our mind that Exh. 47 is a cryptic message which is recorded at Vanwadi Police Station, more so because the same is for the purpose of showing the movements of API Kadus who was required to immediately take two injured persons to Sassoon Hospital for treatment. The said entry neither gives names of the injured nor the assailants. It does not give any particulars in respect of the incident which had taken place except mentioning that a fight had taken place at Bhimnagar. In our opinion, this police station entry cannot be treated as FIR as sought to be argued by Shri Chitnis. It is true that the entry is made first in point of time but the test which is laid down by the Supreme Court as is evident from the above discussion, is not satisfied inasmuch as it is apparent from the said entry that the purpose of making the said entry was to show the movements of API Kadus as a result of receiving telephonic message from Mundava Police Chowky and asking him to attend immediately to the injured. The main purpose, it appears, was not to put investigation in motion, but to first have the injured medically attended to. On reaching the Hospital, the deceased was declared dead, therefore, there was no question of giving him any medical treatment, however, Pandit who was injured was immediately given medical treatment. Only thereafter, the statement of Pandit was recorded by API Kadus. It may be noted that API Kadus did not forthwith rush to the scene of offence viz. Bhimnagar locality to find out what had happened. The information which was recorded in the said entry in the police station diary of Vanwadi Police Station was lacking in particulars and it was necessary therefore to first attend to the injured and then to verify the information and proceed with the investigation. Only after Exh. 26 was recorded, API Kadus later on went to the scene of offence and started investigation. In our opinion, Exh. 47 cannot be treated as FIR and it was rightly not treated so by the learned trial Judge. Thus, we do not find any substance in this submission of Shri Chitnis.
6. Shri Chitnis next submitted that the evidence of Pandit (PW-6) should not have been accepted by the learned trial Judge.
(a) It was his submission that this evidence was not safe to rely upon as in his evidence, he stated that when they reached Mundava Police Chowky, he went inside the Police Chowky leaving Vasant as well as Parvatibai behind in the autorickshaw; that he informed the Officers who were found in the said Chowky about the incident and also gave names of the assailants. It was submitted by Shri Chitnis that when Pandit had mentioned the names as he has deposed in evidence, any Police Officer would have mentioned the names and other necessary details. Thus, according to him, in fact Pandit had not given names of the Accused. It was therefore submitted by Shri Chitnis that since necessary details regarding names of the Accused are not found in Exh. 47, the inference would be that Pandit was not in a position to know his assailants. We may point out that in fact Pandit has also deposed that Police had not reduce into writing whatever was stated by him. He has also deposed that they were at the Mundava Police Chowky for about two minutes or so. In our view, the need of the hour was to have the injured attended to immediately and that was what was precisely done by the Police.
(b) It was further submitted by Shri Chitnis that Pandit in his examination-in-chief stated that he had fallen down as a result of attack on him and that Vasant was chased by the assailants and was attacked by the three Accused behind the Shiv Sena Office. It was his submission that factually this was untrue as even on taking the spot inspection, the learned Trial Judge himself came to the conclusion that it was not possible to see the attack on Vasant. Moreover, Pandit himself in his cross-examination admitted that it was not possible to see how Vasant was attacked. Thus, it was Shri Chitnis's submission that Pandit should not be believed. We are not impressed by any of these submissions. The Supreme Court has in its recent decision in the matter of Rajinder v. State of Haryana inter alia reiterated that maxim "Falsus in uno, falsus in omnibus" does not apply to criminal trials and it is the duty of the Court to disengage the truth from falsehood. We have considered the evidence of Pandit as a whole. Little discrepancies like this cannot make the evidence of Pandit, who was injured, unacceptable when his evidence as a whole has a ring of truth. It is true that it is unsafe to rely on the evidence of a single witness especially when he happens to be an interested witness as was submitted by Shri Chitnis. However, in a given case, when the evidence of a person is found cogent and acceptable, there is no reason as to why the same should be rejected more so when the witness himself is also an injured. It is natural for a person who is attacked to name only persons who are his assailants which in our view Pandit has done. When it was suggested in the cross-examination that he was not attacked by the Accused but was attaced by Arun Kavade, Navnath Kamble and Sunil Gavli, Pandit denied the said suggestion and clarified that although with Arun Kavade and Navnath Kamble he had disputes prior to the incident and with Sunil Gavli, it was much after the date of the incident. Moreover, Pandit admitted that he had no enmity with Accused Nos. 2 and 3. In these circumstances, why would he implicate them unless they had in fact attacked him and Vasant. We are of the opinion that it was absolutely natural for Pandit to have mentioned the names of his real assailants at whose hands he himself had received serious injuries. In our view, therefore, the learned trial Judge has rightly accepted the evidence of Pandit.
7. It was next submitted by Shri Chitnis that the learned trial Judge should have accepted the evidence of Parvatibai, the wife of Pandit, who was examined as a defence witness. He pointed out that Parvatibai in her evidence has stated that she was present at the time when Pandit was attacked and in her evidence, she gave names of the three assailants viz. Navnath Kamble, Sunil Gavli and Arun Kavde. She further deposed that on 1st June 1992, Police had taken her statement, however according to Shri Chitnis as examining her was found inconvenient by the prosecution, she was not examined by it. In order to appreciate this submission, let us see the facts which emerge from the evidence of Pandit and Parvatibai. After her marriage with Pandit, there were matrimonial problems between the two and in fact she had left the matrimonial home. She returned only sometime prior to the date of the incident, remained with Pandit during his hospitalisation but again left him. She has admitted in her cross-examination that after 15 days of the incident she went to her native place and stayed with her maternal uncle, that Police had visited her village to serve her with the summons but she was not available as she had gone to other village and although she came to Bombay few days prior to her evidence, she did not meet Pandit. She also admitted that the case was fixed for hearing in November 1992. When specifically asked as to why she was not staying with Vasant, she avoided giving an answer, however, volunteered that this was because of her children being young that she was residing with her parents and that she wanted to go to Pandit's house. Thus, from this factual background, it is obvious that she was out to save her brother accused No. 1. If in her statement which was recorded on 1st June 1992 as deposed to by P. I. Bhoibar (PW-12) and Parvatibai herself, names of Arun Kavade, Navnath Kamble and Sunil Gavli were given, surely Police would have followed it up instead of arresting the Accused immediately after the incident. Surely when innocent persons like the accused were implicated, she would have raised hue and cry, especially when her own brother was involved. Significantly, she in her cross-examination deposed that it was for the first time that she was narrating the incident when she was being examined in Court. It is clear to us that because of her estrangement with her husband Pandit that she chose to oblige the defence and tried to implicate three innocent persons. Her evidence has been, therefore, rightly rejected by the learned trial Judge.
8. After the above submissions were made by Shri Chitnis on behalf of the Appellants and after the reply was given by Smt. Kantharia for State, in rejoinder Shri Chitnis wanted to make an additional submission. We allowed him to do so only in the interests of justice. It was submitted by Shri Chitnis that Pandit in his evidence has stated that his dying declaration was recorded by Magistrate and thereafter, the PSI reduced into writing his report and that the report which was shown to him was the said report. That report has been marked as Exh. 26. Exh. 26, as stated earlier, has been treated as an FIR. It was submitted by Shri Chitnis that thus, it is evident that prior to the recording of the so called FIR (Exh. 26) a dying declaration was recorded as mentioned by Pandit, yet the same was not forthcoming and therefore an adverse inference should be drawn. According to him, this was a very serious lacuna in the prosecution case, the benefit whereof should go to the Accused. Although this submission was neither raised before the learned trial Judge during the trial nor before us earlier, not standing on technicalities, we have given our anxious consideration to the same. Pandit was examined as PW-6. He deposed about dying declaration in his examination-in-chief but no questions were asked in cross-examination about it. Moreover, when three Police Officers, viz. API Kadus (PW-9), PSI Bhoibar (PW-12) and PSI Limaye (PW-13) were examined by the prosecution, after Pandit was examined, none of them was asked any question about the so called dying declaration to which the complainant viz. Pandit made a reference. Surely, if the defence wanted to know more about this document, they would have asked about it. None of these prosecution witnesses were even asked to produce such document. It would have been a different matter if those witnesses were asked about the same and were called upon to produce the same. When no such evidence was led and when no such argument was advanced before the learned trial Judge, it is difficult to accede to the submission. We find that there is no material whatsoever except the stray sentence in the evidence of Pandit to suggest that any such declaration was recorded. This submission also in these circumstances cannot find any favour with us. Thus, the last submission of Shri Chitnis is also rejected. We wish to again emphasize that the above mentioned submissions were the only submissions which were advanced on behalf of the Accused.
9. In view of the above, we see no substance in the Appeal and the Appeal is therefore dismissed. Certified copy expedited.
10. Appeal dismissed.