# DHARMA v. MAHARASHTRA (Dua, l.) - **Citation:** [1973] 3 S.C.R. 92 - **Court:** Supreme Court of India - **Decided:** 1971-05-18 - **Case number:** Criminal Appeal No. 281 of 1971 - **Bench:** A. Alag!Riswami, I. D. Dua, C. A. Vaid!Alingam - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dharma-v-maharashtra-dua-l-6585 - **Pages:** 10 ## Headnote Criminal Trial-Evidence-Alleged discrepancy between medical evl- ...Jence and testiffl.ony of eye-witnesses whether justifies acquittal-F .l.R. whether can be used to contradict statements of witnesses other than the •maker thereof-Sentence of death-No leniency when only reason for kill· iiig is difference of religion. · The appellant was conVicted by the Sessions Judge of offences under ss. 148,323 and 302· J.P.C. 'The High Court maintained his conviction and confirmed the sentence to de3th. Jn appeal by special leave to this Court ·it was contended that (i) the evidence of the eye-witnesses went againsttbe medical evidence and thereof the former was wrongly relied on bv the ·courts below; (ii) the evidence of the three eye-witness.es on which the conviction of the appellant was based was contradicted by the F.I.R. lod- ·ged by S, one of the victims of the incident and therefore should not have been relied on; and (iii) the sentence of death passed against the appel- ·1ant was ex~essive. Dismissing the appeal, A B c D HELD: (i) 'The fact remained that an arrow was aciually found ·underneath A's dead body and according to the ·doctor the injury on the deceased could be caused by that arrow.. The mere fact, therefore that in the opinion of the doctor the arrow with the · hook, unless skilfully E pulled out of the wound. was likely to cause more damage was not ai suffi- · ciently strong factor to reject the testimony Of the three eye-\\'itnesses believed by the courts below and about whose trustworthiness there could ·'be no reasonable doubt, (ii) 'The F.I.R. could only discredit the testimony of S whose evidence had not been relied upon to support the.appellant's conviction. 'The F.I.R. could by no means be utilised for contradicting or discrediting the other withnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant. 'The evidence of the ;0rded the statements of Kasam and Jubeda. Hanif was also called but as he was cryjng all the time he was not able to make any statement. On May 16, 1970 the appellant made a statement leading to the recovery of a bow and four arrows from a spot in Karvandi shrubs about 85 paces away from his house. The recovered bow and four arrows were exhibired as 11, 11 a, 12a, I 2c and l 2d. These articles were hidden under dry leaves. One of the arrows had blood stains on it but on examination the stains being disintegrated it could not be said if they were of human blood. The statement of Hanif was recorded by Vishwam1th, Police Inspector in July, 1970 after he had taken over the investigation. The Additional Sessions Judge, Thana, who tried the case relied on the evidence of Kasam (P.W. 2), Jubeda (P.W. 3) and Hanif (P.W. 5). These witnesses, according to the trail court, had not displayed any tendency to introduo~ falsehood in their statement though it felt that the evidence of Hanif (P.W. 5) should be read with a certain degree of care and caution because of his statement having been recorded by the investigating authorities more than two months after the occurrence. For accepting Hanif's evidence, therefore, the trail court required corroboration. With respect to the evidence of Shamsuddin (P.W. 1 ), however, the trail court felt that it was not safe to rely on his testimony .because his statement in court was at variance with the statement in the information lodged by him with the police. On the basis of the testimony of P.Ws. 2. 3 and 5 the trail court came to the conclusion that the appellant was definitely present at the scene of occurrence with bow and arrows and was a member of the unlawful assembly and further that he had shot the arrows at Abdul Khalil, his eldest son Shaukat and his wife Sahebi, the three deceased victims of the unfortunate occurrence. In that court's opinion the three witnesses had no reason to screen the real offenders and to falsely implicate the appellant. The appellant (Dharrna Rama Bhagare. accused no. 1 in the trial court) and Budhya Dhaklya Valvi (accused no 7 in the trial court) appealed to the High Court. It may be recalled that during the investigation one arrow had been found underneath the dead body of Khalil and four arrows were recov~red at the instance of appellant. As already observed, the arrow recovered at the scene of occurrence had blood-stains on it which were on examination found to be of human origin whereas one of the four arrows recovered at the instance of the appellant was found on examination to have on it blood-stains but being disintegrated it could not be said if they were of human origin. It appears that there was some confusion in putting the exhibit B c [) E F G H A B c D E F G H DHARMA v. MAHARASHTRA (Dua, J.) 97 marks on the arrows and the bow produced in evideJl!:e. The High Court, in the circumstances, considered it necessary to have the matter clarified by taking additional evidence. By means of an order dated April 27, 1971 the High Court required the trial court to recall the investigating officer (P.W. 13) and the two witnesses P.Ws 6 and 10 and have the matter clarified. The counsel_ for the accused appearing in the High Court also expressed a desire to ask some more questions from. J?r. Deshpande (P.Wc 12). This request was granted. The High Co.urt thus disposed of the appeal and the murder reference after tatong into consideration the additional evidence received under s. 428, Cr. P .C. The High Court, after appraising the evidence on the record did not see any cogent reason for not accepting the evidence of the three eye witnesses believed by the trial court. That court was also unable to find any reason why these witnesses should falsely implicate the accused persons. From the nature of the occurrence and its surrounding circumstances, in its opinion, there could not be any independent eye wit11esses present and in a position to depose about the complicity of the accused persons. The locality where the occurrence had taken place tdng uninhabited and the only persons present being the assailants and their victims it was not possible normaUy to expect any independent eye witness. The -recovery of a bow and four arrows received at the instance of the appellant were also held to support the prosecution version as tll'~Se arrows were similar to the one recovered from the scene of the occurrence. The High Court further took into consideration the circumstance that the bow and four arrows were found concealed in a place where they are normally not kept. The appeal was accordingly dismissed. In this Court Shri Dholakia the learned counsel appearing in support of the appeal has very strongly challenged th~ conclusions of the two courts below. He has advanced two principal contentions. According to him the prosecution case that three deaths were caused by arrows like the one found :it the scene of occurrence conflicts with the medical testimony because the medical evidence shows that it was not possible to cause by such an· arrow the injuries found on the dead persons. The learned counsel complains that neither the trail court nor the High Court examined the medical evidence from this point of view. In the second pface, according to learned counsel. the conclusions of the two cout:ts below are irrational and both the courts have not ca~d to attach proper importa~ce to the first infon"Ration report which w11s lodged by Shamsuddm who had also himself appeared as an eye. witness in the case. According to learned coun~~I, Sha!11sud~m had all along been with the other members of the family with ithe result that the initial version given bjy him to 8-L63 !SupCTl7J 98 SUPREME COURT REPORTS [1973] 3 s.c.R. the police which constituted the first information report must be considered to have been given by him after knowing all the facts from the other members of the family who claimed to have witnessed the occurrenee and appeared as witnesses in court. This ve]]ion as contained in the first information report must, according to the submission, be held to contradict the evidence given in court by the other eye witnesses as well. On this premise, according to Shri Dholakia, the prosecution evidence must be considered to be unacceptabl.e and it cannot form safe basis for holding the appellant guilty of the offence charged. Indeed, the learned counsel went to the length of submitting that the appellant has been involved not as a result of the observation by the prosecution witnesses of what actually happened at the time of the unfortunate assault on the victims but as a result of calculated deliberation to falsely implicate him. So far as the first point is concerned main reliance has been placed on the examination of Dr. Vinayak Deshpande (P.W. 12) when he was recalled pursuant to the order of the High Court dated April 27, 1971 under s. 428, Cr. P.C. We have been taken through that evidence which was recorded on May 4 and 5, 1971 along with the evidence originally recorded but we are unable to find anything in the doctor's testimony which wotild show that the injuries sustained by the three dead persons could not be caused by the kind of arrows recovered from the scene of occurrence apd from near the appellant's house at his instance. The real argument is founded on the opinion of P.W. 12 where he states that the iiljuries sustained by Abdul Khalil and injuries sustained by Sahebi could be caused by an arrow with or without a hook and thirt the removal of arrow with the hook from the injury would be likely to cause more damage to the abdominal wall and also to the internal organs. Both in the case of Sahebi and Abdul Khalil the doctor did not notice any injury to the abdominal wall which could have been caused while pulling out the arrow. Relying on this part of the evidence, according to Shri Dholakia, all the recovered arrows which are alleged to have caused the injuries to the deceased persons having been found out of the dead bodies should have caused severe internal damage expected by the doctor and since no such damage was discovered by him the injuries, as a result of which the deceased persons died, must have been caused by some weapon other than the arrows with hooks. It has been suggested that the injuries might well have been caused by someone with a spear. The appellant, it has~ been emphasised, is not stated to have used a spear. We are wholly unable to sustain this submission on the existing record. The doctor also explained in his evidence on which reliance is placed that if the arrow with a hook is removed skilfully out of the injury then it may not A B c D E ' G H 8 c D E Ii' G H DHARMA v. MAHARASHTRA (Dua, J,) 99 cause more damage to the abdominal wall when removed out of the injury thouJlh if it is removed forcibly it may do so. It is also noteworthy that all the arrows recovered did not have hooks on them. The circumstances in which and the person by whom the arrow was removed from the body of Abdul Khalil is not known. When the investigating officer went there it had already come out of the wound and was lying underneath the dead body pressed near the stomach between both the legs of the deceased. Any attempt by this Court to determine whether the arrow had come out by itselt ·as a result of some movement of the injured body after receiving the arrow injury whether before or during Abdul Khalil's last moments of life or whether someone from amongst the party of the accused had attempted to remove it but was for some reason unable to do so or whether the arrow had come out of the body in some other way, would be mere speculation and it would be unfruitful to hazard a guess. We are not unmindful of the fact that the doctor has stated in his additional evidence that if the arrow with the hook is shot at from a distance with force it would not come out from the injury without being pulled out by someone and also that looking at the injuries of Abdul Khalil and Sahebi the arrows must have been shot at with force. But the fact remains that an arrow was actually found underneath Abdul Khalil's dead body and according to the 'doctor the injury on the deceased could be caused by ):hat arrow. The mere fact, therefore, that in the opinion of the doctor the arrow with the hook, unless skilfully pulled out of the wound was likely to cause more damage is, in our opinion, not a sufficiently strong factor which should persuade us on the existing record to reject the testimony of the three eye witnesses believed by the courts below and about whose trust worthiness we do not entertain any reasonable doubt, It is noteworthy that this contention was not raised either in the trail court or in the High Court. Indeed, during the crossexamination of Dr. Deshpande (P.W. 12) even when he was recalled no straight and direct question was put to him, if keeping in view the nature of the injuries on Abdul Khalil and Sahebi and the recovered arrows and assuming that the arrows causing the injury had not been taken out skilfully, he could confidently depose that the injuries in question were not possible to be caused by these arrows. It is also pertinent to point out that from the order dated April 27, 1971, it 'does not appear that the counsel for the appellant specifically desired to clarify this point from the doctor. The submission now forcefully advanced by Shri Dholakia appears to us to be an afterthought and in any event is clearly not supportable on the medical evidence. We are, therefore, unable to reject the testimony of the eye-witnesses merely on the medical evidence to which our attention has been drawn. 100 SUPREME COURT REPORTS [i 973] 3 S.C.R. In so fa1 as the information lodged with the police by Shamsuddin is concerned both the courts below have not consi· dered it proper to reject the testimony ot the other three eyewitnesses on the ground of variance between their statements in court and the contents of the said information. The first information report, it may be pointed out, is never treated as a substantive piece of evidence. It can only be used for borrobora.ting or contradicting its maker when he appears in court as a witness. Its value must always depend on the facts and circumstances of a given case. In th!! present case its value has not been considered to be of much significant because of the nature and circumstances of the occurrence and the extent and nature of the injuries suffered by Sbamsuddin who quite naturally must have been subjected to a very severe shock. The surviving members of the family could not go back to their home even after the occurrence and felt compelled to trek the whole night on foot to find shelter in the house of Gafoor at Shahpur where they reached the following mornin.~. In these circumstances the contents of the F.l.R. made by Shamsuddin have rightly not been given any importance by the trail court and by the High Court. The F.l.R. can only discredit the testimony of Shamsuddin whose evidence bas not been relied upon for supporting the appellant's conviction. The F.1.R. can by no means be utilised for contradicting or discrediting the other witnesses who obviously cpuld not have any desire to spare the real culprit and to falsely implicate the appell'ant. The evidence of the eye-witnesses believed by the two courts appears to us to be free from any serious infirmity justifying its rejection. The case is obviously not one in which any reasonable doubt can be cast on the testimony of the eye-witnesses on the mere ground that Shamsuddin who apparently in his attempt to save himself from the fierce indiscriminate assault by the assailants was not able carefully to !?.e and remember as to in what manner and bv what weapon his parents and eldest brother had been killed. That they were actually killed during the occurrence in question is undisputed. Equally undisputed is the nature of injuries found on their bodies. We are, therefore, unable to agree with S'1ri Dholakia thtrt the prosecution case should be thrown out on the mere ground that in the first information report an altogether different version was given by Shamsuddin. The evidence of Shamsuddin as given in court, it may be recalled, has not been relied upon for sustaining the apellant's convictioll. We accordingly feel little hesitation in agreeing with the con· current conclusion of the trial court and the High Court that the ap_pellant was responsible for killing the three deceased persons. I A B c D E F G H A B c D E DHARMA v. MAHARASHTRA (Dua, J.) 10 I The last contention by Shri Dholakia relates to the question of sentence. According to him the present is not a case for extreme penalty. We are unable to agree. The qu.estion of sentence is a matter of judicial discretion. The relevant con~i derations in determining the sentence, broadly stated, include the motive for, and the magnitude of, the offence and the manner of its commission. In this case the victims of the assault had given no offence to the appellant or his associates. Indeed the unarmed innocent members of this family had to leave their heath and home and were actually at the moment of the offenoo running in panic, on seeing the mob, to save themselves, when the three senior most members were shot with arrows from behind and killed. One of the victims was a wonian with a baby in her arms. The only reason for these murders is the profession of different religious faith by the victims. According to the investigating officer, P.W. 13, Abdul Khalil's residential house had also been set on fire on May 12 at 8.30 p.m. In our country where the Constitution guarantees to all individuals freedom of religious faith, thought, belief and expression and where no particular religion is accorded a superior status and non subjeC'ted to hostile discrimination the commission of offences mqtivated only by the fact that the victim professes a different religious faith cannot be treated with leniency. They are not only destructive of our basic traditional social order founded on toleration in recognition of the dignity of the individual and of other cherished human ·values, but have also a tendency to mar our national solidarity. We are, therefore, wholly unable to find any cogent reason for reducing the sentences imposed by the trial court and confirmed by the High Court. The appeal accordingly fails and is dismissed. G.C. Appeal dismissed.