# PANDURANG CHANDRAKANT MHATRE & ORS. \ v. STATE OF MAHARASHTRA

- **Citation:** [2009] 15 S.C.R. 58
- **Court:** Supreme Court of India
- **Decided:** 2009-10-08
- **Case number:** Criminal Appeal No. 986 of 2007
- **Bench:** D.K. Jain, R.M. Lodha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pandurang-chandrakant-mhatre-ors-v-state-of-maharashtra-25209
- **Pages:** 45

## Headnote

Penal Code, 1860 - ss. 3021149, 3261149 and 148 -
Conviction under - Rivalry between two political factions -
c Accused armed with deadly weapons forming unlawful
assembly - Murderous attack on one and injuries to other
members - Acquittal by trial court - High Court upholding
......
acquittal of five accused and convicting eight accused u/s.
3021149, 3261149, 148 and imposed imprisonment for life and
D . different period of sentence - On appeal, held: Order of trial
)-
court was erroneous - FIR not affected by legal infirmity -
Evidence of eye-witnesses corroborated by medical evidence
in respect of deceased as well as injuries sustained by them
- Proved beyond doubt that eight accused guilty of offences
E
punishable uls. 148 ands. 3261149 - Plea of alibi not proved
-
Thus, conviction and sentence awarded by High Court
against A-2, A-3 and A-12 upheld - Conviction of A-4, A-5, ·
.\---
A-6, A-10 and A-11 u/s.148 and 3261149 upheld but that u/
s.3021149 set aside - Sentence uls. 148 upheld and that u/s.
,,
, F
3261149 modified.
Two political parties were on inimical terms. On the
fateful day workers of rival party armed with deadly
weapons assaulted SA, PW-2, PW-4, PW-5, PW-6, PW-7,
PW-8 and PW-10-members of other party. SA sustained
G · serious injuries and later succumbed to his injuries. Other
witnesses sustained injuries. Nineteen persons were tried
for offences ulss .. 147, 148, 3021149, 302134, 3071149 and
s. 3261149 IPC. Trial court acquitted the appellants. High
H
58
..
f
"'·
~
-~
-
-""
PANDURANG CHANDRAKANT MHATRE & ORS. v.
59
STATE OF MAHARASHTRA
Court upheld the acquittal of five accused and convicted
eight accused u/ss.302/149, 326/149 and s.148 IPC and
imposed sentence of imprisonment for life and different
period of sentence under other counts along with fine.
Hence the present appeal.
Partly allowing the appeal, the Court
HELD: 1. The whole approach of the trial court in
consideration of the evidence of eye-witnesses was
faulty and flawed. The evidence is independently
examined and it is found that the judgment of the trial
court acquitting all the accused persons suffered from
factual and legal errors justifying interference by the High
· Court in appeal within permissible limits. Thus, the
conviction of A-2, A-3 and A-12 for the offence punishable
under section 302 read with section 149 IPC and the
sentence awarded to them by the High Court to suffer
imprisonment for life is maintained. The conviction of A4, A-5, A-6, A-1 O and A-11 for the offence punishable
under section 302 read with s.149 IPC is set aside. The
conviction of the appellants under section 148 and
section 326 read with section 149 IPC is upheld. The
sentence awarded to them under section 148 IPC is
maintained. However, substantive sentence for the
offence punishable under section 326 read with section
149 IPC is modified and each one of them is sentenced
to suffer RI for three years. The substantive sentences
shall run concurrently. [Paras 65 and 66] [101-F-H; 102A-8]
A
B
c
D
E
F
2.1. First Information Report is not a substantive
piece of evidence and it can be used only to discredit the G
testimony of the maker thereof and it cannot be utilized
for contradicting or discrediting the testimony of other
witnesses. First Information Report cannot be used with
regard. to the testimony of other witnesses who depose
H
60
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A
in respect of incident. The earliest information in regard
"
to commission of a cognizable offence is to be treated
as First Information Report. It sets the criminal law in
motion and the investigation commences on that basis.
Although FIR is not expected to be encyclopedia of
8
events but_ an information to the police to be 'first
information report' u/s.154(1) Cr.P.C. must contain some
essential and relevant details of the incident. A cryptic
-"
information about commission of a cognizable offence
~
1
irrespective of the nature and details of such information
c may not be treated as

## Text

_Characters 0–39,988 of 85,151. This is a partial read: ask again with offset=39988 for what follows._

[2009] 15 (ADDL.) S.C.R. 58
A
PANDURANG CHANDRAKANT MHATRE & ORS.
\ -
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 986 of 2007)
"'"
.. ~ ... ~,;,·· .
,;'
B
OCTOBER 8, 2009
[D.K. JAIN AND R.M. LODHA, JJ.]
Penal Code, 1860 - ss. 3021149, 3261149 and 148 -
Conviction under - Rivalry between two political factions -
c Accused armed with deadly weapons forming unlawful
assembly - Murderous attack on one and injuries to other
members - Acquittal by trial court - High Court upholding
......
acquittal of five accused and convicting eight accused u/s.
3021149, 3261149, 148 and imposed imprisonment for life and
D . different period of sentence - On appeal, held: Order of trial
)-
court was erroneous - FIR not affected by legal infirmity -
Evidence of eye-witnesses corroborated by medical evidence
in respect of deceased as well as injuries sustained by them
- Proved beyond doubt that eight accused guilty of offences
E
punishable uls. 148 ands. 3261149 - Plea of alibi not proved
-
Thus, conviction and sentence awarded by High Court
against A-2, A-3 and A-12 upheld - Conviction of A-4, A-5, ·
.\---
A-6, A-10 and A-11 u/s.148 and 3261149 upheld but that u/
s.3021149 set aside - Sentence uls. 148 upheld and that u/s.
,,
, F
3261149 modified.
Two political parties were on inimical terms. On the
fateful day workers of rival party armed with deadly
weapons assaulted SA, PW-2, PW-4, PW-5, PW-6, PW-7,
PW-8 and PW-10-members of other party. SA sustained
G · serious injuries and later succumbed to his injuries. Other
witnesses sustained injuries. Nineteen persons were tried
for offences ulss .. 147, 148, 3021149, 302134, 3071149 and
s. 3261149 IPC. Trial court acquitted the appellants. High
H
58
..
f
"'·
~
-~
-
-""
PANDURANG CHANDRAKANT MHATRE & ORS. v.
59
STATE OF MAHARASHTRA
Court upheld the acquittal of five accused and convicted
eight accused u/ss.302/149, 326/149 and s.148 IPC and
imposed sentence of imprisonment for life and different
period of sentence under other counts along with fine.
Hence the present appeal.
Partly allowing the appeal, the Court
HELD: 1. The whole approach of the trial court in
consideration of the evidence of eye-witnesses was
faulty and flawed. The evidence is independently
examined and it is found that the judgment of the trial
court acquitting all the accused persons suffered from
factual and legal errors justifying interference by the High
· Court in appeal within permissible limits. Thus, the
conviction of A-2, A-3 and A-12 for the offence punishable
under section 302 read with section 149 IPC and the
sentence awarded to them by the High Court to suffer
imprisonment for life is maintained. The conviction of A4, A-5, A-6, A-1 O and A-11 for the offence punishable
under section 302 read with s.149 IPC is set aside. The
conviction of the appellants under section 148 and
section 326 read with section 149 IPC is upheld. The
sentence awarded to them under section 148 IPC is
maintained. However, substantive sentence for the
offence punishable under section 326 read with section
149 IPC is modified and each one of them is sentenced
to suffer RI for three years. The substantive sentences
shall run concurrently. [Paras 65 and 66] [101-F-H; 102A-8]
A
B
c
D
E
F
2.1. First Information Report is not a substantive
piece of evidence and it can be used only to discredit the G
testimony of the maker thereof and it cannot be utilized
for contradicting or discrediting the testimony of other
witnesses. First Information Report cannot be used with
regard. to the testimony of other witnesses who depose
H
60
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A
in respect of incident. The earliest information in regard
"
to commission of a cognizable offence is to be treated
as First Information Report. It sets the criminal law in
motion and the investigation commences on that basis.
Although FIR is not expected to be encyclopedia of
8
events but_ an information to the police to be 'first
information report' u/s.154(1) Cr.P.C. must contain some
essential and relevant details of the incident. A cryptic
-"
information about commission of a cognizable offence
~
1
irrespective of the nature and details of such information
c may not be treated as FIR. [Para 29]
2.2. In the instant case, PW-5 reached the police
,11"-
station at about 4.00-4.15 a.m. He gave information that
several persons were assaulting members of their party;
D
that the accused were armed with deadly weapons and
that police should immediately leave for the place of
~
occurrence. This information was entered in General
Diary of the police station. Based on this information, PW18-10 left for the place of occurrence alongwith PW-2 who
had also reached the police station by that time. In an
E
incident where large number of accused are involved in
assaulting rival village folk, obviously the first task of the
Police Officer is to ensure visit to the scene of occurrence
and provide police help, if necessary. Rather, it would
.\-
have been unnatural on the part of PW-18 to have insisted
F
on taking down the entire incident by way of FIR when
PW-5 reached the Police Station at about 4.00-4.15 A.M.
for getting help for the victims. The immediate task for
PW-18 was to focus on providing help to the victims who,
as per the version of PW-5, were still being attacked. In
G such a situation, it cannot be said that the moment PW18 left the police station, _the investigation had
!--
commenced. In the circumstances, FIR is not affected by
any legal infirmity. [Para 30] [85-8-C,F-H; 86-A]
H
2.3. As regards delayed receipt of the copy of FIR by
\
. •
PANDURANG CHANDRAKANT MHATRE & ORS. v.
61
STATE OF MAHARASHTRA
the Court of Magistrate on April 12, 1988, the FIR register A
indicates that copy of FIR was sent to the concerned
Magistrate on April 3, 1988 itself. If the evidence of eyewitnesses is found cogent, convincing and credible, the
delay in receipt of the copy of FIR by the concerned court
would not be of much significance. [Para 31) [86-A-C]
B
3.1. The consideration of the evidence of PW-6 and
PW-3-watchman, by the trial court, was not proper. The
evidence of eye-witnesses-PW-2, PW-4, PW-5, PW-7, PW8, PW-9, and PW-10 is broadly corroborated by the
medical evidence in respect of the deceased as well as C
the injuries sustained by them. PW-11-Medical Officer
examined PW-2, PW-7 and PW-10 and the injuries
sustained by these witnesses is proved by the evidence
of PW-11. As regard the injuries sustained by PW-6, PW3, PW-4 and PW-8, the injury reports support their D
version. Examination of PW-2, PW-3, PW-4, PW-5, PW-6,
PW-7, PW-8 and PW-10 shows that their presence at the
time of incident cannot be doubted. [Paras 44, 36 and 64)
[86-C-D; 90-8-C, 101-C-D]
Muthu Naicker and Others vs. State of Tamil Nadu (1978)
~ 4 SCC 385; State of U.P. v. Ballabh Das and Others (1985)
3 SCC 703; State of U.P. v. Ram Swarup and Others 1988
(Supp) SCC 262, Referred to.
E
3.2. From the prosecution case, it is clear that the
F
incident took place between the two rival political factions
and that all eye-witnesses, except PW-3 and PW-6 belong
to victim party. Thus, PW-2, PW-4, PW-5, PW-7, PW-8, PW9 and PW-10 can be stamped as interested witnesses.
_.,
PW-6 deposed that the deceased was son-in-law of his G
eldest brother and to that extent he is also an interested
witness. Before relying upon testimony of these
witnesses,
adequate
assurance
from
other
circumstances or materials is required to be seen. The
evidence of such witnesses has to be examined with H
62
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A
great care and caution to obviate possibility of false
implication or over-implication. [Para 48] [93-C-D]
3.3. In cases involving rival political factions or group
enmities, it is not unusual to rope in persons other than
who were actually involved. In such a case, court should
B
guard against the danger of convicting innocent persons
and scrutinise evidence carefully and, if doubt arises,
benefit should be given to the accused. [Para 49] [93-EF]
c
3.4. Section 149 IPC creates a specific and distinct
offence. Its two essential ingredients are commission of
an offence by any member of an unlawful assembly and;
such offence must have been committed in prosecution
of the common object of that assembly or must be such
D
as the members· of that assembly knew it be likely to be
committed. However, where a large number of persons
are alleged to have participated in the crime and they are
sought to be brought to book with the aid of s.149 IPC,
this Court has applied rule of caution taking into
E
consideration particular fact-situation and convicted
those accused whose presence was clearly established
and overt acts were proved. [Paras 51 and 53) [94-F-G;
95-E-F]
'
Masalti vs. State of UP. (1964) 8 SCR 133; Shere and
F
Ors. vs. State of UP 1991 Supp.(2) SCC 437; Musa Khan
& Ors. vs. State of Maharashtra (1977) 1 SCC 733; Nagarjft
Ahir vs. State of Bihar (2005) 10 SCC 369; Maranadu And
Anr. vs. State by Inspector of Police, Tamil Nadu l~J08) 16
sec 529, referred to.
G
3.5. Having carefully examined the testimony of eyewitnesses, it is found that prosecution has been able to
establish that party of assailants comprised of more than
five persons; that they formed unlawful assembly and
that at least five persons chased the deceased and then
H
attacked him. These members of the unlawful assembly
.;.
)
}
~
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,,
'
, ,_
~ .
1
~
' -
.. F
.·-,;
~ •
~
~
i'
PANDURANG CHANDRAKANT MHATRE & ORS. v.
63
STATE OF MAHARASHTRA
, (
who chased and attacked the deceased definitely shared A
~
common object of causing murder of SA. [Para 58] [97F-G]
3.6. The High Court observed that common object of
......
the said unlawful assembly was to cause grievous hurt .
It held that common object of the unlawful assembly was B
~
to make murderous attack on the deceased. At first
' {
blush, there seems to be some inconsistency in the
judgment but on a deeper scrutiny, it is not found so. For
determination of common object of the unlawful
assembly, the conduct of each of the members of the c
"
unlawful assembly before and at the time of attack is of
relevant consideration. At a particular stage of the
incident, what is object of the unlawful assembly is a
question of fact and that has to be determined keeping
'
~
in view the nature of the assembly, the arms carried by 0
I
the members and the behaviour of the members at or
~(·
near the scene of incident. The accused persons
~
(nineteen in number) armed with deadly weapons came
to the scene of occurrence sharing the common object
of causing grievous hurt to the victim party. A closer E
scrutiny of evidence shows that A-2, A-3, A-4, A-5, A-6, A-
~
10, A-11 and A-12 assaulted the prosecution witnessessome of them sustained grievous injuries. However,
when the deceased and prosecution witnesses ran helter
and skelter, at least five members of the unlawful
F
assembly chased the deceased and they attacked him
with the weapons in their hand. The purpose and design
of these members of unlawful assembly in chasing SA
and a murderous assault by them on him may not have
been shared by other members of unlawful assembly. In G
-~
such a case although having regard to facts, the number
of participants could not be less than five, it is better to
apply rule of caution and act on the side of safety and
convict only A-2, A-3, and A-12 under section 302 read
with section 149 IPC whose presence as members of
H
64
SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R.
A
party of assailants is consistently mentioned and their
overt acts in chasing and assaulting the deceased are
clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit
of doubt with regard to offence under section 302 read
with section 149 IPC since evidence against them in
B chasing and assaulting the deceased is not consistent.
However, all the eight appellants are guilty of the
offences punishable under section 148 and section 326
read with section 149, l.P.C. This is proved beyond doubt
and the High Court cannot be said to have erred in
C holding so. [Para 59] [97-G-H(98-A-H;99-A]
3.7. There is no merit in the plea of alibi set up by A2. The plea of alibi set up by A-2 was not even accepted
by the trial court. The presence of A-2 in the incident is
established. He has been identified holding the iron bar.
D The prosecution witnesses have given specific
involvement of A-2 in the incident. On the basis of the
deposition of some of the eye-witnesses, the evidence of
DW-1 cannot be said to have been wrongly rejected by
trial court as well as by High Court. In cross-examination,
E DW-1 admitted that there was no supervisor at night on
that date. Original document was not produced and name
and designation of the officer who is said to have signed
the said certificate was not disclosed nor the person who
issued the certificate was produced. As a matter of fact,
F
plea of alibi has not at all been probabilised by A-2 much
less proved. [Para 60] [99-8-D]
3.8. From the p'rosecution evidence it is clearly
established that the temple was illuminated due to an:-• ..cal
fair and there were other lights at the tempi\:. It was full
G moon night. The subm1ssion that there was noi enough
light at the place of incident and, therefore, the incident
could not have been seen cannot be accepted. [Para 61]
[99-E-F]
H
3.9. The submission that site plan of the scene of
..
f
. ...
PANDURANG CHANDRAKANT MHATRE & ORS. v.
65
STATE OF MAHARASHTRA
offence could not have been accepted as PW-1 deposed
A
that he prepared the site map as per the information
supplied by the police is devoid of any substance. No
objection was raised when the said document was being
exhibited. Moreover, the investigating officer has not at
all been cross-examined in this regard. [Para 62] [99-GB
H; 100-A]
Ramratan and others v. State of Rajasthan (1962) 3 SCR
590; Chhotu vs. State of Haryana (1996) SCC Crl. 1161,
Held inapplicable.
3.10. The submission that the High Court was not
justified in interfering with the judgment of acquittal as the
view taken by the trial court was the possible view cannot
c
be accepted. The view which the trial court took on the
basis of the evidence on record is neither possible nor D
plausible. There could not be more perversity in the
consideration of the evidence of eye-witnesses by the
trial court. [Para 63] [100-B-C]
Mahtab Singh & Anr. v. State of U.P. JT 2009 (5) SC
E
431; Meharaj Singh (UNk.) v. State of U.P (1994) 5 SCC 188;
T. T. Antony v. State of Kera/a & Ors. (2001) 6 SCC 181;
Ramesh Baburao Devaskar & Ors. v. State of Maharashtra
~ (2007) 13 SCC 501; State of Haryana v. Prabhu & Ors AIR
1979 SC 1019; Sarwan Singh & Ors.etc. v. State of Punjab
F
AIR 1978 SC 1525; Ram Anjore and Others. v. State of U.P.
AIR 1975 SC 185; Gokul & Others v. State of Rajasthan AIR
1972 SC 209; Md. Isak Md. & Others v. State of Maharashtra
AIR 1979 SC 1434; Ninaji Raoji Baudha & Another v. State
of Maharashtra AIR 1976 SC 1537; Nattan v. State of Tamil
Nadu AIR 1976 SC 2197; Mariadasan & Others v. State of G
~ Tamil Nadu AIR 1980 SC 573; Bharwad Bhikha Natha &
Others v. State of Gujarat AIR 1977 SC 1768; Harshadsingh
Pahelvansingh Thakore v. State of Gujarat AIR 1977 SC 710
Bhajan Singh and Others v. State of Punjab AIR 1978 SC
1759; Bansropan Singh and Others v. State of Bihar AIR 1983
H
I
66
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
..
A SC 166 Sarman & Others v. State of M.P. AIR 1 993 SC 400.;
/shwar Singh v. State of U.P AIR 1976 SC 2423;
~
Radhakrishnan Nair v. State of Kera/a 1995 Suppl (1) SCC
217; Chotu v. State of Haryana 1996 SCC (Crl.) 1161; Palia
v. State of Punjab; 1997 SCC (Crl.) 383; Bathula
B Nagamalleswara Rao And Ors. v. State rep. by Public
Prosecutor (2008) 11 SCC 722; Mahmood and Anr. v. State
of UP. (2008) Crl. Law Journal 696; State of Punjab v. Avtar
'v
Singh (2008) 14 SCALE 368; State of Punjab v. Gurdip Kaur
}--
(2009) 1 SCC 120; Chandu v. State of Maharashtra 2002 (9)
c SCC 408; Kashiram & Ors. v. State of M.P 2002 (1) SCC 71;
Harijana Thirupala & Ors. v. Public Prosecutor A.P.,
Hyderabad 2002 (6) SCC 470; Ram Ratan & Others v. State
of Rajasthan 1962 (3) SCR 590; Dharma Rama Bhagare v.
...,.....
State of Maharashtra (1973) 1 SCC 537; Vikram v. State of
D Maharashtra JT 2007(7) SC 215, referred to.
)...
Case Law Reference:
(1994) 5 sec 188
Referred to. Paras 16, 24
,,..,-
(2001) 6 sec 181
Referred to. Paras.16, 25
E
(2001) 13 sec 501
Referred to. Paras 16, 26
AIR 1979 SC 1019
Referred to. Para 21
AIR 1978 SC 1525
Referred to. Para 21
,..
F
AIR 1975 SC 185
Referred to. Para 21
AIR 1972 SC 209
Referred to. Para 21
..,
Referred to.
,.
AIR 1979 SC 1434
Para 21
AIR 1976 SC 153"."
Referred to. Para 21
\.
•
G
AIR 1976 SC 2197
Referred to. Para 21
AIR 1980 SC 573
Referred to. Para 21
AIR 1977 SC 1768
Referred to. Para 21
H
PANDURANG CHANDRAKANT MHATRE & ORS. v.
67
STATE OF MAHARASHTRA
AIR 1977 SC 710
Referred to. Para 21
A
(
AIR 1978 SC 1759
Referred to. Para 21
AIR 1983 SC 166
Referred to. Para 21
AIR 1 993 SC 400
Referred to. Para 21
B
AIR 1976 SC 2423
Referred to. Para 22
1995 Suppl (1) sec 211
Referred to. Para 22
t
1996 sec (Crl.) 1161
Referred to. Para 22
1997 sec (Crl.) 383
Referred to. Para 22
c
(2008) 11 sec 122
Referred to. Para 22
(2008) Crl. Law Journal 696 Referred to. Para 22
(2008) 14 SCALE 368
Referred to. Para 22
D
c2009) 1 sec 120
Referred to. Para 22
2001 (13) sec 501
Referred to. Para 22
2002 (9) sec 408
Referred to. Para 22
2002 (1) sec 11
Referred to. Para 22
E
2002 (6) sec 470
Referred to. Para 22
1962 (3) SCR 590
Referred to. Para 22
(1973) 1 sec 537
Referred to. Para 27
F
JT 2007(7) SC 215
Referred to. Para 28
1978 (4) sec 385
Referred to. Para 45
(1985) 3 sec 103
Referred to. Para 46
1988 (Supp.) sec 262
Referred to. Para 47
G
1964 (8) SCR 133
Referred to. Paras 52, 53
1991 Supp. (2) sec 437
Referred to. Para 54
H
..,_
68
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A
1911 (1) sec 733
Referred to. Para 55
2005 (1 O) sec 369
Referred to. Para 56
-~
2oos (16) sec 529
Referred to. Para 57
B
1962 (3) SCR 590
Distinguished Para 62
1996 sec Crl. 1161
Distinguished Para 63
"
JT 2009 (5) SC 431
Referred to. Para 63
.,...
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
t
c No. 986 of 2007.
From the Judgment & Order dated 10.4.2007 of the High
Court of Judicature at Bombay in Criminal Appeal No. 132 of
1990.
·•
D
R. Sundravardh_an, A.K. Srivastava, Shekhar Naphade,
P .S. Narsimha, Shivaji M. Jadhav, Rahul Joshi, Brijkishor Sah,
.,.._
Lenin S. Hijam Abdul Tamboli, Rahul Thakur, Naresh Kumar,
Santosh Paul, Arvind Gupta, K.K. Bhat, Sriharsh N. Bundela,
C.K. Sasi, Sudhanshu S. Chaudhari, Sunil Kumar Verma,
E Madhavi Divan, Ravindra Keshavrao Adsure for the appearing
.,_
parties.
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. This criminal appeal by special leave
F is directed against the judgment of the High Court of Judicature
at Bombay whereby the Division Bench of that Court upturned
the judgment of acquittal passed by the llnd Additional Sessions
Judge, Raigad in respect of the present appellants and
convicted them for the offences punishable under Section 302
G
read with Sectic;;-, 149, section 326 read with 149 and Section
~
148, IPC and ~entenced them to suffer imprisonment for life
t
and different period of sentence under other counts along with
fine and default stipulation.
>--
2. Nineteen persons were arraigned before the Trial Court
H for the offences under Sections 147, 148, 302 read with
-
I .
PANDURANG CHANDRAKANT MHATRE & ORS. v.
69
STATE OF MAHARASHTRA [RM. LODHA, J.]
Section 149, section 302 read with section 34, section 307
A
-(
read with section 149 and section 326 read with section 149,
IPC. Trial Court acquitted all of them. The prosecution
challenged the judgment of acquittal before the High Court of
Judicature at Bombay. The High Court granted leave to appeal
against fourteen accused persons only. As against remaining
B
five accused, leave- was refused. During the pendency -of
\
appeal, one of the accused, against whom leave was granted,
...
died. Of the remaining thirteen accused, the Division Bench
+
affirmed acquittal of five. The Division Bench convicted eight
accused as indicated above.
c
3. Before dealing with the points raised in the appeal, it is
appropriate to set out very briefly the prosecution case. Phunde,
a small village in Taluka Uran, District Raigad, Maharashtra has
two groups; one group is politically associated with the
D
Peasants and Workers Party (PWP) while the other group has
alliance with the Congress (I) Party. The party of the assailants
belong to PWP and the prosecution witnesses belong to
• .
Congress-I party. The deceased was also a Congress-I party
worker. The relations between the two groups due to party
politics seem to have been strained for quite some time.
E
Several criminal cases have been lodged by these two groups
against each other. On the outskirts of the village Phunde, there
is a temple popularly known as Gurbadevi Temple. The said
temple celebrates every year an annual fair with pomp and show;
a Jagran is held in the night on the said occasion. On April 2,
F
1988, the annual fair at Gurbadevi Temple was being.
celebrated; the idol was adorned with ornaments and the entire
temple complex was illuminated with electric lights. In the night,
the villagers gathered in the temple for Jagran. The group
belonging to Congress (I) party took active part in the G
management of the said fair. The celebrations continued until
midnight. Thereafter, most of the villagers left the temple.
However, 15-20 persons who were in management ofthe said
festival stayed back to keep watch over the ornaments adorned
by the idol. Few of those who stayed back were chit-chatting in
H
70
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A
Sabhamandap, while some of them were simply resting and
others kept themselves awake by playing cards. In the
intervening night of April 2, 1988 and April 3, 1988 at about 3
- 3.15 A.M., Ramesh Mhatre (A-3) came to the temple, had a
look around and then left. A-3 did not speak to anybody. About
B
15-20 minutes thereafter, A-3 returned to the temple with a
group of about 20 persons. All of them were allegedly armed
with weapons like iron bar, swords, pharashi, sticks etc. As
soon as they reached, they are said to have started attacking
the people assembled there. Pandurang Chandrakant Mhatre
c (A-2) -and Ramesh Mhatre (A-3) gave iron-bar blows on the
back of Nandkumar Mhatre (PW-2) but he escaped and ran
towards the village. The accused persons started shouting
'dhara-dhara' 'mara-mara'. Then, they assaulted Suresh
Atmaram Gharat (deceased), Sudin Mhatre (P\IV-4), Namdeo
D Mhatre (PW-5), Laxman Mhatre (PW-6), Gopal Thakur (PW7), Mahindra Mhatre (PW-8) and Mahesh Bhoir (PW-10).
Suresh Atmaram Mhatre, ran towards Uran-Panvel Road but
the accused persons chast:J him. Maninath Shanker (A-12)
assaulted him with sword. The other accused persons assaulted
him with sticks and iron bars. As a result of that assault, Suresh
E Atmaram Gharat sustained serious injuries. PW-2 rushed
towards village and shouted for help by saying that PWP
workers were assaulting their (Congress-I) Party members.
Hearing this, the villagers rushed towards Gurabadevi Temple.
PW-2 then went to Nhava Sheva Police Station where he
F
reached at about 4.15 A.M. (April 3, 1988). On reaching at Nava
Sheva Police Station, PW-2 found that Namdeo Mhatre (PW5) was already sitting in the police station who had conveyed
to the police that persons from rival party (PWP) have assaulted
the persons from their party and, that arrangements be made
G in sending the Police Party. PSI Anil Tamaichekar (PW-18)
alongwith two police constables and PW-2 ini-mediately left for
the temple in a police jeep. On his way to village Phunde, PW18 made enquiries from the persons who were crying and he
came to know that the injured persons have been taken to Uran
H Dispensary. When he reached Uran Dispensary, he was
+
PANDURANG CHANDRAKANT MHATRE & ORS. v.
71
STATE OF MAHARASHTRA [R.M. LODHA,· J.]
informed that seriously injured persons have been sent to Sion
A
Hospital, Bombay. PW-18 then went to the place of occurrence
and from there he proceeded for Nhava Sheva Police Station.
On his way, PW-18 came across one ambulance carrying
injured persons. PW-18 was informed that one of the injured
persons viz., Suresh Atmaram Gharat was dead. PW-18 and
B
PW-2 then immediately went to Nhava Sheva Police Station.
PW-2 lodged the complaint (Exh. 31) based on which a criminal
case (C.R. No. 17/88) was registered at 6.00 AM. on April 3,
1988 for the offences under Sections 302, 147, 148, 149, 323,
114, 307 and 326, IPC. The investigation into the crime was c
commenced by PW-18; he prepared inquest Panchnama
(Exh.67); spot Panchnama (Exh. 32); and recorded the
statements of some witnesses in the vicinity of scene of offence.
The investigation was then taken over by Shantaram
Waghmare, Assistant Commissioner of Police (PW-17) and
0
changed hands as PW-17 was transferred. As the accused
persons were not traceable, the Investigating Officer searched.
them vigorously. Six accused persons were arrested on May
26, 1988; nine were arrested on May 28, 1988 and the
remaining four were arrested on August 16, 1988. For the
E
period from May 28, 1988 to August 18, 1988, on different
dates at the instance of different accused persons, weapons
of assault were recovered. The investigation took long time of
about 4-5 months.
4. The postmortem of dead body of Suresh Atmaram
F
Gharat was conducted on April 3, 1988 by Dr. Bhujang Bawa
(PW-11 ), Medical Officer, Uran Dispensary. PW-11 also
medically examined injured witnesses on the same day; six of
them were sent to; the Sion Hospital, Bombay for treatment as
they received seri6us injuries. Upon completion of all necessary
G
formalities in the investigation, the Challan was submitted by
the Investigating Officer before the Judicial Magistrate, First
Class, Uran against Kamlakar Shrawan Thakur (A-1),
Pandurang Chandrakant Mhatre (A-2). Ramesh @ Raman
Chandrakant Mhatre (A-3), Parshuram Chandrakant Mhatre (AH
72
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A 4), Ashok Yadav Mhat~e (A-5), Damodar Vasant Gharat (A-6),
Vinod Trimbak Mhatre (A-7), Prakash Pandurang Thakur (A-
~
8), Mahesh Pandurang Gharat (A-9), Ramchandra Raghunath
Mhatre (A-10), Mahesh Shankar Gharat (A-11 ), Maninath
..--
Shankar Gharat (A-12), Mukund Moreshwar Mhatre (A-13),
~
8
Ganpat Raghunath Mhatre (A-14), Bhushan Balchandra Mhatre
(A-15), Dayanand Mahadeo Mhatre (A-16), Rupendra Shripat
Mhatre (A-17), Nitin Kamalakar Thakur (A-18) and Prakash
Madhukar Mhatre (A-19). As offences like 302 and 307 were
exclusively triable by the Court of Sessions, the Judicial
c Magistrate, First Class, committed the aforesaid accused
persons to the Court of Sessions Judge, Raigad-Alibagh. The.
case was transferred to the Court of llnd Additional Sessions
Judge, Raigad-Alibag for trial.
5. PW-11 found following injuries on the body of the
D deceased :
~
"(1) Incised wound over the left Iliac fossa, vertical skin
deep, 8 X % cm.
E
(2) Incised wound over the head 4 cm above the Occipital.
>
Vertical 3 x % cm. Bone deep
,)
(3) C.L.W. over the right upper arm in the middle on lateral
side (4 x 4 cm.) with fracture of the right humerus m/3.
f
F
(4) C.L.W. just below the right Tibial Tuberosity 3 x 3 cm.
I
I
Irregular with fracture of Tribia and fibula U/3.
(5) C.LW. over the right shin over lower/3 on anterior side
2 x 2 cm. with a fracture of tibia and fibula L/3.
......
G
(6) Fracture of left Radius and Ulna L/3."
The aforesaid injuries on the body of deceased were found .
+
ante-mortem by PW-11.
H
6. Laxman Mhatre (PW-6) was initially taken to the Uran
/
-
.1
~
'
PANDURANG CHANDRAKANT MHATRE & ORS. v.
73
STATE OF MAHARASHTRA [R.M. LODHA, J.]
Dispensary and from there he was taken to Sion Hospital,
A
Bombay on April 3, 1988 itself. He was found to have sustained
following injuries (vide Exh. 87) :
"(i) CLW (R) FO Region 2" x 1" BO
(ii) S/7/D (L) Ulna m/3 no. DWD
CLW 1" x Y2'' SCD L/3rd ulna PW m/3 Ulna clinically# ml
3 Ulna Contamination +
(iii) open injury (R) elbow CLW 2" x 1" BO
vertically splitting olecranon with impression # (R) trochlea
No DWD
(iv) S/7/D (R) Ankle no DWD
(v) tenderness (R) gluteal region.
(vi) No.# spine/pelvis/ribs/clinically
x-ray # (L) Ulna m/3; # (R) Olecranon compo vertical;
soft tissue (R) ankle injury."
7. Vithal Pandurang Mhatre (PW-3) was also taken to Sion
Hospital, Bombay on April 3, 1988. He was discharged on May
14, 1988. At the time of admission in the hospital, the following
injuries were found on his person (Vide Exh. 88) :
"(1) Amputation (R) thumb with thumb held by skin tag.
(2)
l/W (R) thigh subcutaneous deep 1" x Y2"
B
c
D
E
F
8. Sudin Mhatre (PW-4) was admitted in Sion Hospital on
G
April 3, 1980. He remained there as indoor patient for three
days and was discharged on April 6, 1988. At the time of his
admission in the Sion Hospital, he was found to have sustained
the following injuries (Vide Exh. 89) :
H
74
SUPREME COURT REPORTS [2009) 15 {ADDL.) S.C.R.
A
"(1)
CLW vertex 10 cm
(2)
Outer table# skull "
9. Mahindra Lalji Mhatre (PW-8) was admitted at Sion
8
hlospital on April 3, 1988 and was discharged on April 5, 1988.
At the time of his admission in Sion hospital, he was found
suffering from the following injuries (Vide Exh. 90) :
"(1)
CLW sintered forehead 1 Yi"
c
(2)
CLW occipital 1 Yi"
(3)
CLW mucosal aspect'lower lip area
(4)
Multiple inj on back"
D
10. Namdeo Yadav Mhatre (PW-5) sustained the following
injurie~:
"1.
Abrasion over the back at lumbar region 2 x 2 cm
with irregular margin.
E
2.
Abrasion over Rt.intra-axillary area 3 x 3 cm with
irregular margin.
3.
Abrasion over the Left elbow jt. 1 x 1 cm irregular
in margin."
F
11. Mahesh Kashinath Bhoir (PW-10) was also injured in
G
H
the incident and he suffered the following simple injuries :
"Wheelmark over the Epigastric region 6 x 2 cm vertical
with irregular margin."
12. The prosecution sought to establish its case by
tendering nine eye-wHnesses in evidence, viz., PW-2, PW-3,
PW-4, PW-5, PW-6,· PW-7, PW-8, PW-9 and PW-10. Many of
them were injured. The accused persons denied that they had
anything to do with the offences charged . .Their defence was
-
,__
1 __
~
+
~
PANDURANG CHANDRAKANT MHATRE & ORS. v.
75
STATE OF MAHARASHTRA [R.M. LODHA, J.]
,,
that a false case has been made against them by the aforesaid
A
~\
prosecution witnesses. A-2 pleaded alibi in his defence.
~..._ .... ~
13. The trial court rejected the evidence of eye-witnesses
holding that because of a sudden attack, all the prosecution
witnesses ran helter-skelter and everybody tried to run away B
from the accused to save their life and in a situation like this
'\,
they must not have been in a position to see actually who
~
-{
assaulted them. The trial court held that the evidence regarding
assault on Suresh Atmaram Gharat was not specific and as he
(deceased) ran from the temple, the attack on him took place c
at some distance from the temple and being a night time, none
..¢.·
of the witnesses could see the attack on the deceased from
~
the short distance, say about 5' to 1 O'. The trial court observed
,..
that although PW-5 reached the Nhava Sheva Police Station
at about 4 to 4.15 a.m. and gave information about the incident,
D
·'<
but the FIR was registered at 6.00 a.m. at the instance of PW2. From this, the trial court drew the inference that PW-18 and
PW-2 must have pondered over the matter for false implication
of the accused in the offence. The trial court, thus, acquitted all
the accused persons.
E
14. The High Court, however, reversed the conclusion of
the trial court in respect of eight accused persons. The High
\
Court held that in the intervening night of April 2, 1988 and April
3, 1988 at about 3 to 3.30 a.m., there was an unlawful assembly
of which A-2, A-3, A-4, A-5, A-6, A-10, A-11 and A-12 were
F
the members. The High Court also held that all the accused
were armed with deadly weapons like sword, iron bars,
pharshi, sticks and their common object was to make a
....
murderous attack on Suresh Atmaram Gharat. The High Court,
'
after setting aside the order of acquittal against A-2 to A-6, AG
...
10, A-11 and A-12, convicted them for the offence punishable
under Section 302 read with 149, l.P.C. and sentenced them
'te> suffer. imprisonment for life. The High Court also convicted
these accused persons for other offences and punished them
for lesser sentence with fine and default stipulations.
H
..
76
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A
15. Mr. R. Sundaravardan, learned Senior Counsel
\
addressed the principal arguments before us on behalf of
~
appellant nos. 1 to 3. Mr. A.K. Srivastava, learned Senior
... ~,~
Counsel made submissions for appellant nos. 4 to 6 and Mr.
Shekhar Naphade, learned Senior Counsel argued for
B appellant.no .. 8.
16. Mr. R. Sundaravardan, learned Senior Counsel
submitted that FIR (A-31) is no FIR in law as it is hit by the
}-
prohibition contained in Section 162 of Cr.P.C. He would
submit that FIR (A-31) is of doubtful authenticity as it lacks
... _ .. ,;
c spontaneity and delay in its registration. According to him, FIR
ought to have been registered in the first instance on the
"'~
~
information of PW-5 or in any case on the information given
by PW-2 at 4.30 a.m. Instead, PW-18 (10) takes PW-1 to the
D
scene of occurrence, meets the villagers and ambulance on the
)I>-
way, dispatches the dead body to the hospital for the postmortem, goes to the village and thereafter proceeds to the
police station along with PW-2 and registers the purported FIR
..
(A-31) with coloured version, exaggerated accounts and
concocted story against whom the prosecution party has a
·(
I
E grudge. Learned Senior Counsel also submitted that there was
I
gross violation of Section 157, Cr.P.C. inasmuch as FIR in the
Court was received on April 12, 1988, although the occurrence
i
' took place on April 3, 1988. He relied upon ·the decisions of
,.
this Court in Meharaj Singh (UNk.) v. State of U.P. 1; T. T.
F Antony v. State ofKerala & Ors2. and Ramesh Baburao
~ '>-
Devaskar & Ors. v. State of Maharashtra3• The learned Senior
Counsel, thus, submitted that there is genuine doubt as to the
time, date and manner in which purported FIR (A-31) was
recorded and police is guilty of having not disclosed the whole
....
G correct story to the court.
+
17. Learned Senior Counsel would contend that the
1.
(1994) s sec 188.
2.
(2001) B sec 181.
H
3.
(2007) 13 sec so1.
PANDURANG CHANDRAKANT MHATRE & ORS. v,
77
STATE OF MAHARASHTRA [R.M. LODHA, J.]
;, ~
evidence of witnesses, who professed themselves as eyeA
witnesses deserved to be rejected as they belong to rival
political parties in a faction ridden village. Moreover, they are
related to each other as well as the deceased. These
witnesses have been examined at much belated stage by
police; some of them after nine days. Learned counsel would B
)
urge that one or other of these prosecution witnesses are
themselves accused in sessions case; in some cases accused
1
were witness/complainant against them and some of the
prosecution witnesses' parents were convicted for fife. Their
testimony is also not corroborated by any doctor from Sion c
Hospital as no doctor from that hospital was examined and that
their evidence suffers from vital contradictions, omissions,
exaggerations and improvements. In this regard, the learned
Senior Counsel took us through the evidence of PW-2, PW-3,
PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9. He also D
..,,
submitted that evidence of PW-3, PW-4 and PW-8 is hearsay
evidence and, therefore, no evidence in the eye of law.
18. Learned Senior Counsel vehemently contended that
investigation in the present case is an example of one of the
most unfair investigation inasmuch as the certificate regarding
E
A-2, as to his .absence from scene though procured by PW-
,.,
17, yet, was kept away from the Court. He also cited late
recording of the FIR after having taken several steps of
investigation as yet another glaring example of unfair
investigation. On top of it, he would submit that FIR reached
F
the concerned court after nine days of incident.
19. Mr. R. Sundaravardan, learned Senior Counsel also
contended that plea of alibi set up by A-2 is established by the
evidence of DW-1 who is an officer of NAD. Learned Senior G
Counsel also submitted that from the prosecution evidence, the
•
doubt about the place of occurrence has not been cleared and
that prosecution has failed to establish the availability of
adequate light at the site which could have enabled the
witnesses in fact see the incident.
H
78
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
.;·
~
,'
.·~
A
20. Learned Senior Counsel strenuously urged that the trial
. ,•
court has given cogent and convincing reasons for acquitting
~ ~
the appellants but the High Court without justifiable reasons and,
rather, on flimsy grounds interfered with the judgment of the
acquittal.
B
21. Lastly, learned Senior Counsel; without prejudice to the
afore-noticed submissions, urged that there was no evidence
to show that there was common object of the unlawful assembly
to commit murder of Suresh Atmaram Gharat. He invited our
~
-
~
c
attention to the finding recorded by the High Court at page 39
of the SLP paper book wherein the High Court recorded that
common object of the unlawful assembly was to cause grievous
(
hurt. Learned Senior Counsel would urge that there was no
•,
specific evidence to show that Suresh Atmaram Gharat died
...
because of any particular blow. According to him, the High
..
D
Court although held that for six injuries on the person of
deceased, as per post-mortem report, nine accused cannot be
"!---
held guilty yet the High Court came to the conclusion that
common object of the unlawful assembly was to commit murder.
....
The learned Senior Counsel submitted that when there was
E
doubt as to who inflicted the fatal blow, as in the present case,
safe course is to convict the accused under Sections 326 or
·"1'
304 Part-II, IPC. In this regard, the learned Senior Counsel
relied upon large number of decisions, viz., State of Haryana
/.
v. Prabhu & Ors4,' Sarwan Singh & Ors.etc. v. State of Punjab5;
'
~
F
Ram Anjore and Others. v. State of U.P. 6; Gokul & Others v.
~ ..
State of Rajasthan7; Md. Isak Md. & Others v. State of
.,
Maharashtra8; Ninaji Raoji Baudha & Another v. State of
Maharashtra9; Nattan v. State of Tamil-Nadu10; Mariadast':a
4.
AIR (1979) SC 1019.
G
5.
AIR 1978 SC 1525
6.
AIR 1975 SC 185
t
}-
7.
AIR 1972 SC 209
8.
AIR 1979 SC 1434
9.
AIR 1976 SC 1537
H
10. AIR 1976 SC 2197
--,./
/
PANDURANG CHANDRAKANT MHATRE & ORS. v.
79
STATE OF MAHARASHTRA [R.M. LODHA, J.]
.,
& Others v. State of Tamil Nadu11 ; Bharwad Bhikha Natha & A
Others v. State of Gujarat12; Harshadsingh Pahelvansingh
Thakore v. State of Gujarat13; Bhajan Singh and Others v.
State of Punjab14 ; Bansropan Singh and Others v. State of
Bihar15; Sarman & Others v. State of M.P16 •
f
8
22. On behalf of appellant No. 8 (A-12), separate written
-----
submissions have been filed. While adopting the arguments
1
advanced by Mr. R. Sundaravardan, it is contended on behalf
of appellant No. 8 that the unexplained delay in dispatch of FIR
would create suspicion about the contents of the FIR and the c
evidence of the eye-witnesses. In this regard, reliance has been
~
placed on: lshwar Singh v. State of U.P17; Radhakrishnan Nair
/
v. State of Kerala 18; Chotu v. State of Haryanc:i19; Palia v. State
..
of Punjab20; Bathula Nagamalleswara Rao And Ors. v. State
-<(
rep. by Public Prosecutor21; Mahmood and Anr. v. State of
D
U.P. 22; State of Punjab v. Avtar Singh23; State of Punjab v.
Gurdip Kaur24 and Ramesh Baburao Devaskar And Others v.
·-
State of Maharashtra25 • It is also contended that although the
trial court recorded the finding to the effect that there was
11. AIR 1980 SC 573
E
12. AIR 1977 SC 1768
~
13.