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PETITIONER:

DHARMA RAMA BHAGARE

Vs.

RESPONDENT:

THE STATE OF MAHARASHTRA

DATE OF JUDGMENT13/12/1972

BENCH:

DUA, I.D.

BENCH:

DUA, I.D.

ALAGIRISWAMI, A.

VAIDYIALINGAM, C.A.

CITATION:

1973 AIR 476 1973 SCR (3) 92

1973 SCC (1) 537

ACT:

Criminal Trial-Evidence-Alleged discrepancy between medical

evidence and testimony of eye-witnesses whether justifies

acquittal F.I.R. whether can be used to contradict

statements of witnesses other than the marker thereof-

Sentence of death-No leniency when only reason for killing

is difference of religion.

HEADNOTE:

The appellant v.-as convicted by the Sessions Judge of

offences under ss. 148,323 and 302 I.P.C. The High Court

maintained his conviction and confirmed the sentence to

death. in appeal by special leave to this Court it was

contended that (i) the evidence of the eye-witnesses went

against the medical evidence and thereof the former was

wrongly relied on by the courts below; (ii) the evidence of

the three eye-witnesses on which the conviction of the

appellant was based was contradicted by the F.I.R. lodged 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 appellant was excessive.

Dismissing the appeal,

HELD:(i) The fact remained that an arrow was actually

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 skillfully pulled out of the

wound was likely to cause more damage was not a sufficiently

strong factor to reject the testimony of the three eye-

witnesses 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

witnesses who obviously could not have any desire to spare

the real culprit and to falsely implicate the appellant.

The evidence of the eye-witnewes believed by the two courts

appeared to be free from any serious infirmity justifying

its rejection. The case was obviously not one in which any

reasonable doubt could be cast on the testimony of the eye-

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witnesses on the mere ground that S who apparently in his

attempt to save himself from the fierce indiscriminate

assault by the assailants was not able carefully to see and

remember as to in what manner and 'by what weapon his

parents and eldest brother had been killed.

(iii)The relevant considerations 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. They were actually runni

ng in panic on seeing the mob, to save themselves.

The commission of offences motivated only by the fact that

the victim professes a different religious faith could not

be treated with leniency.

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JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 281 of

1971.

Appeal by special leave from the Judgment and order dated

May 18, 1971 of the Bombay High Court in Cr. A. No. 262 of

1971 and confirmation case No. 57of 1971.

S. K. Dholakia and R.C. Bhatia, for the appellant.

H. R. Khanna and B. D. Sharma, for the respondent.

DUA, J. The appellant in this appeal by special leave

(accused no. 1 in the trial court) was convicted by the

Second Additional Sessions Judge of Thana of offences under

ss. 148, 323 and 302, I.P.C. and was sentenced to death

under S. 302 and to various terms of rigorous imprisonment

under ss. 148 and 323 of the said Code. The High Court

maintained his conviction and confirmed the sentence of

death. He has now appealed to this Court and Shri Dholakia,

learned counsel appearing in support of this appeal, has

addressed lengthy arguments challenging both the conviction

and the sentence.

This case is an off-shoot of the unfortunate communal riots

which occurred on May 7, 1970 in the town of Bhiwandi in

Thana District in the State of Maharashtra. Though the

trouble originally-started in the town of Bhiwandi it spread

to the neighboring towns and villages. In the Thakurpada of

Tansa village there lived one Abdul Khalil aged about 55

years along with his family members. This was the only

Muslim family in Thakurpada. He and his wife Sahebi had ten

children. Their names and ages in the order of seniority

are : Shaukat (son) about '2'3 years, Shamsuddin (son, who

has appeared as P.W. 1) about 19 years, Kasam (son) about

17, Hanif (son) about 15, Jubeda (daughter) about 13, Nizam

(son) about 11, Fatma (daughter) about 9, Hamshera

(daughter) about 4, Salim (son) about 3 and Nazar (son about

4 or 5 months). Abdul Khalil, Shaukat and Shamsuddin, all

three used to work in Nevigation Company at Mohilla about 2-

21 miles away from Tansa. Abdul Khalil was a truck driver

and Shaukat, a clearner. As communal trouble spread to

other places in the district, some danger to the Muslim

families in Tans a-'village was also apprehended. In that

village there were perhaps about 5 or 6 Muslim families. On

the outskirts of this village there is the great Tansa lake

which supplies water to Bombay city. Mr. Khatkhate, a

Hydraulic Engineer is in charge of that lake. He has an

office on the site with several employees of the Municipal

Corporation of Bombay working under him living on the site.

Mr. Khatkhate met Abdul Khalil on May 12, 1970 and warned

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him that there was a likelihood that he and the members of

his family might be attacked and that they should leave

Tansa village and go to a safer place. As

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a result of this warning, Abdul Khalil and the members of

his family abandoned their home and left Tansa village at

about 6 p.m. on May 12, 1970. They went into the forest

area surrounding the great Tansa lake and encamped on a

hilock known as Maholi hillock about 2 1/2 miles away from

the village. They spent the night at the hillock but having

run short of water in the morning they shifted at about 10

a.m. on May 13, 1970 to the Nursery area of Tansa lake which

is near the water's edge. This spot was about three or four

furlongs away from Tansa village. They spent most of the

day there. In the evening at .about 6 or 6.30 Shamsuddin,

the. second son, went a little distance away from the family

members to ease himself when he saw a mob of about 30 or 35

persons armed with axes, spears and sticks coming from the

side of the Tansa lake towards the place where Abdul Khalil

and his family were staying. Seeing the mob approaching

them Shamsuddin ran back to his parents and informed them

about what he had seen. The mob was raising shouts. The

members of Abdul Khalil's family feeling frieghtened started

running in different directions. They roughly formed

themselves into three groups. One group consisted of Kasam,

Hanif, Nizam, Salim and Hashma, the other consisted of'

Jubeda, Fatma and their mother Sahebi who was also carrying

in her arms the baby Nazir and the third group which was the

last to leave the spot consisted of Khalil and Shaukat. As

these two persons were the last to leave the spot the mob

had in the meantime come close to them. They thus became

the first target ,of the attack by the mob. The appellant

Dharina Rama Bhagare, who was armed with a bow and arrows

shot an arrow at Khalil which pierced him in the back.

Khalil fell down and was surrounded by other assailants, who

started belabouring him. Abdul Khalil's eldest son Shaukat

seeing his father being attacked went to rescue him but he

had hardly gone a few paces when another arrow discharged by

the appellant struck him at his back near his right

shoulder. Shaukat also fell down as a result of the injury

caused by the arrow about two or three paces away from his

father. He was also assaulted by some members of the mob.,

On seeing her husband and her eldest son being thus

assaulted Sahebi raised alarm but she was also attacked by

the appellant who shot the third arrow at her. This struck

her on the left side above the waist with the 'result that

she also fell down with her infant child in her arms. She

died instantaneously. Some of the other members of Khalil's

family hid themselves behind the trees or Karvandi bushes

round about the spot whereas some of them were still running

away to save themselves. Jubeda, the young daughter on

seeing her father, mother and brother being shot at with

arrows, shouted. This apparently annoyed the appellant who

picked up a stone and flung it at her, thereby causing an

injury on hear head. Budhya,

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one of the accused, also struck a blow at her with an iron

bar thereby injuring her right hand. Shamsuddin who was

hiding himself behind a tree was noticed by some of the

accused persons. Budhya accused ran towards him and

assaulted him with the butt end of-an- axe. Some of the

other accused persons also assaulted him with the result

that Shamsuddin lost consciousness. Thereafter the

assailants left the scene, of occurrence and went away. As

a result of this occurrence three members of this family

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died on the spot whereas two members suffered injuries.

After regaining consciousness Shamsuddin and the surviving

members of the family seeing their parents and eldest

brother dead, were so terrified that they left the dead

bodies at the scene of the occurrence and picking up their

belongings proceeded on foot towards Shahpur town in the

Taluk headquarters where one Gafoor, a brother-in-law of

Shamsuddin lived. Sending Kasam, Hanif and Nazir to the

house of Gafoor, Shamsuddin himself along with others went

to the police station. At the police Station there was only

a head constable by name Bendhari (P.W. 4) who found

Shamsuddin not in a fit condition to make a statement.

Shamsuddin, who had sustained many injuries, was soaked in

blood. The headconstable, therefore, after making an entry

to this effect in the Station Dairy, sent Shamsuddin and

Jubeda to Shahpur dispensary for treatment. At about 10

O'clock in the morning of May 14, 1970 the police Sub-

Inspector in charge of the police station, Dattatreya Potdar

(P. W. 13), came to the police station and on being

apprised of Shamsuddin and Jubeda having gone to Shahpur for

treatment he sent for Shamsuddin from the dispensary and

recorded the first information report, Ex. 4. After

registering the offence he took up investigation. He sent

for Kasam from Gafoor's house and proceeded with him to the

scene of the occurrence, reaching there at about 2 p.m. They

remained there till about 5 p.m. The Sub-Inspector prepared

panchanamas of the dead bodies and of the scene of the

offence. The scene of the offence was about 400 ft. away on

the southern side of Tansa lake in the area known as

Nursery. Underneath the dead body of Abdul Khalil was found

an arrow which had blood-stains on it. The exact words of

the panchanama relating ,to the recovery of this arrow are :

"There is seen an arrow and a bow pressed in the stomach

between both the legs of the deceased. On taking the arrow

out it is found that its length is 5" and is of iron". On

examination by the Chemical Analyser the stains on this

arrow were found to be of human blood. Thereafter the three

dead bodies were sent through constable Mahadik to the

Medical Officer at Shahpur for postmortem examination.

After proceeding to Tansa village the Sub-Inspector arrested

the appellant along with eight other persons at about 8 p.m.

They were accused nos. 1 to 9 in the trail court. The

following morning, that is, May 15, 1970

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the P.S.I. recorded the statements of Kassam and Jubeda.

Hanif was also called but as he was crying 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 exhibited as 11, 11a, 12a, 12c and 12d. These

articles were hidden under dry leaves. One of the arrows

had, blood gains 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 Vishwanath,

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 introduce 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

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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 (Dharma 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

recovered 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

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marks on the arrows and the bow produced in evidence. 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 Dr. Deshpande (P.W. 12). This request was

granted. The High Court thus disposed of the appeal and the

murder reference after taking 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

witnesses present and in a position to depose about the

complicity of the accused persons. The locality where the

occurrence had taken place being uninhabited and the only

persons present being the assailants and their victims it

was not possible normally 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 these 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 the

conclusions of the two courts below. He has advanced two

principal contentions. According to him the prosecution

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case that three deaths were caused by arrows like the one

found at 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 place,

according to learned counsel, the conclusions of the two

courts below are irrational and both the courts have not

cared to attach proper importance to the first information

report which was lodged by Shamsuddin who had also himself

appeared as an eye witness in the case. According to

learned counsel, Shamsuddin had all along been with the

other members of the family with the result that the initial

version given by him to

8-L63ISupCII73

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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 occurrence and appeared as

witnesses in court. This version 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

unacceptable 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 am unable to find anything in the doctor's

testimony which would 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 and 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

Injuries sustained by Abdul Khalil and injuries sustained by

Sahebi could be caused by an arrow with or without a hook

and that 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 sub. mission on the existing

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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

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cause more damage to the abdominal wall when removed out of

the injury though 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 IV itself 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 that 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 cross-

examination 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.

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In so far as the information lodged with the police by

Shamsuddin is concerned both the courts below have not

considered it proper to reject the testimony of 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 "corroborating or

contradicting its maker when he appears in court as a

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witness. Its value must always depend on the facts and

circumstances of a given case. In the 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

Shamsuddin 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 morning. In these circumstances the contents

of the F.I.R. made by Shamsuddin have rightly not been given

any importance by the trail court and by the High Court.

The F.I.R. can only discredit the testimony of Shanisuddin

whose evidence has not been relied upon for supporting_ the

appellant's conviction. The F.I.R. can by no means be

utilised for contradicting, or discrediting the other

witnesses who obviously could not have any desire to spare

the real culprit and to falsely implicate the appellant.

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 see and remember as to in what manner and by

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 Shri Dholakia that 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 appellant's conviction. We accordingly feel

little hesitation in agreeing with the concurrent conclusion

of the trial court and the High Court that the appellant

was responsible for killing the three deceased persons.

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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 question of

sentence is a matter of judicial discretion. The relevant

considerations 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 offence 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 woman 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 Khalils 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, though, belief and

expression and where no particular religion is accorded a

superior status and non subjected to hostile discrimination

the commission of offences motivated only by the fact that

the victim professes a different religious faith cannot be

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treated with leniency. They are no 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.

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