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CASE NO.:

Appeal (crl.) 194 of 2000

PETITIONER:

PANDURANG KALU PATIL AND ANR.

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT: 17/01/2002

BENCH:

K.T. THOMAS & S.N. PHUKAN

JUDGMENT:

JUDGMENT

2002 (1) SCR 338

The Judgment of the Court was delivered by

THOMAS, J. A Division Bench of the High Court of Bombay has ventured to

disagree with a ratio which has become locus classicus and well stood the

long period of half-a-century. That ratio is the one laid down in the

celebrated decision in Pulikuri Kottaya and Ors. v. Emperor, AIR (1947)

Privy Council 67. In that exercise the Division Bench of the Bombay High

Court had unwittingly overlooked another legal guideline delineated by a

Full Bench of the Bombay High Court itself in State of Bombay v. Chhaganlal

Gangaram Lavar, AIR (1955) Bombay - 1 wherein Chief Justice Chagla speaking

for the Full Bench had said thus :-

"so long as the Supreme Court does not take a different view from the view

taken by the Privy Council, the decisions of the Privy Council are still

binding upon us, and when we say that the decisions of the Privy Council

are binding upon us, what is binding is not merely the point actually

decided but an opinion expressed by the Privy Council, which opinion is

expressed after careful consideration of all the arguments and which is

deliberately and advisedly given."

Quite possibly the attention of the learned judges of the Division Bench of

the High Court would not have been drawn to the observations made by

Chagla, C.J. of the Full Bench of the Bombay High Court in the aforecited

decision, for, otherwise we are sure that learned judges of the Division

Bench would not have erred into the matter of judicial discipline.

While delivering judgment in two connected criminal appeals relating to the

murder of one Ramdas, the Division Bench of the Bombay High Court (D.K.

Trivedi and DG Deshpande, JJ) proceeded to consider the legal proposition

propounded in Pulikuri Kottaya and held thus :-

"with respect we are unable to agree with the interpretation of the Privy

Council of Section 27 not because it does not lay down correct Law but

because it has failed to take into consideration some material aspect of

Section 27 of the Evidence Act.......The observation of the

Privy Council that it is fallacious to treat the "fact discovered within

the section as equivalent to the "object produced", in our humble and

respectful opinion is not based on proper construction of the word 'fact

deposed to' used in Section 27. Because the definition of the fact given in

Section 3 of the Evidence Act is not considered at all. The object

discovered is a fact, and therefore, when a witness is deposing in the

Court and deposes to a fact, it means he could and he should depose about

the object discovered". The legal proposition adumbrated in Pulikuri

Kottaya has been considered and tested by this Court, time and again, and

on all such occasions this Court has only reiterated the said principle

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with approval (vide Jaffar Hussain Dastagir v. State of Maharashtra, [1969]

2 SCC 872; AIR (1970) SC 1788, [1983] 2 SCC 330, [1995] 4 SCC 392; Shamshul

Kanwar v. State of U.P., [1995] 4 SCC 430 and State of Rajasthan v. Bhup

Singh, [1997] 10 SCC 675 Para 15 and in the last cited decision this Court,

while again re-affirming the ratio in Pulikuri Kottaya has said thus :-

"The ratio therein (Kottaya) has become locus classicus and even the lapse

of half-a-century after its pronouncement has not eroded its forensic

worth."

Even the recent decision in State of Maharashtra v. Damn, [2000] 6 SCC 269

this Court followed Pulikuri Kottaya with approval. The fallacy committed

by the Division Bench as per the impugned judgment is possibly on account

of truncating the word "fact" in Section 27 of the Evidence Act from the

adjoining word "discovered". The essence of Section 27 is that it was

enacted as a proviso to the two preceding Sections (see Sec. 25 and 26)

which imposed a complete ban on the admissibility of any confession made by

an accused either to the police or to any one while the accused is in

police custody. The object of making a provision in Section 27 was to

permit a certain portion of the statement made by an accused to a police

officer admissible in evidence whether or not such statement is

confessional or non-confessional. Nonetheless he ban against admissibility

would stand lifted if the statement distinctly related to a discovery of

fact. A fact can be discovered by the police (investigating) officer)

pursuant to an information elicited from the accused if such disclosure was

followed by one or more of a variety of causes. Recovery of an object is

only one such cause. Recovery, or even production of object by itself need

not necessarily result in discovery of a fact. That is why way Sir John

Beaumont said in Pulikuri Kottaya that "it is fallacious to treat the fact

discovered in the section as equivalent to the object produced". The

following sentence of the learned law lord in the said decision, though

terse, is eloquent in conveying the message highlighting the pith of the

ratio.

"Information supplied by the person in custody that 'I will produce a knife

concealed in the roof of my house' does not lead to the discovery of a

knife; knives were discovered many years ago. It leads to the discovery of

the fact that a knife is concealed in the house of the informant to his

knowledge and if the knife is proved to have been used in the commission of

the offence, the fact discovered is very relevant."

(emphasis supplied)

Learned Judges in the impugned judgment laboured to show that the word

"fact" can envelop an object also, and tried to project that the said

aspect has not been taken into account by their Lordships of the Privy

Council. Here again we may repeat that the Division Bench had erred by not

taking the import of the collocation of the words "discovery of a fact" as

envisaged in Section 17. No doubt in a given case an object could also be a

fact, but discovery of a fact cannot be equated with recovery of the object

though the latter may help in the final shape of what exactly was the fact

discovered pursuant to the information elicited from the accused. Thus the

labour made in the impugned judgment by giving emphasis to the word "fact"

disjuncted from the word "discovery" rendered the exercise in vain. Ratio

in Pulikuri Kottaya thus remains unscathed.

It is unfortunate that learned judges of the Division Bench of the Bombay

High Court, in the impugned judgment, have chosen to set a locus classicus

at nought without reference to any of the catena of judicial pronouncements

rendered by High Court as well as the Apex Court pertaining to the ratio in

that decision. Nonetheless the guidelines laid down by the Division Bench

of the impugned judgment did not call for any interference as they related

to the manner of recording the evidence in the trial court. However, we

feel that guideline number 'F' (mentioned in the impugned judgment) seems

to be unnecessary and would only cause additional workload for the trial

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courts.

While dealing with the facts of this case we may point out that the trial

court convicted Al-Shankar Gopal Patil and A3-Balaram Waman Patil under

Section 302 of the 1PC while A2-Nazir Babu Sheikh was convicted only under

Section 307 of the IPC. Trial Court acquitted A4-Pandurang Kalu Patil and

A6-Janardhan Shaligram Patil. But the High Court in the impugned judgment

reversed the acquittal of A4 and A6 and convicted them under Section 326

read with Section 149 of the IPC and sentenced them to rigorous

imprisonment for ten years. The High Court confirmed the conviction and

sentence passed on A l and A3 but in the matter of A2 - Nazir Babu Sheikh,

the High Court raised up the conviction from Section 307 to Section 302

read with Section 149 of the IPC and sentenced him to imprisonment for

life. The convicted A l and A3 have filed special leave petitions in this

Court but they were dismissed by this Court.

The present appeals are by A2 - Nazir Babu Sheikh and A4 - Pandurang Kalu

Patil and A6 - Janardhan Shaligram Patil (Criminal appeal Nos. 1897 2000 is

by A2 while the other two appeals are by remaining two appellants).

The gist of the prosecution case is the following :-

There was a dispute between Al and the father of the deceased over some

landed property. The said dispute made them enemies. This is the background

of the occurrence. While deceased Ramdas, and his brother PW2 Narayan were

proceeding to their village for taking lunch around 1.30 P.M. on 29.6.92

the assailants went in a jeep and stopped just near the place of

occurrence. All the assailants alighted from the jeep. Al, A2 and A3 had a

gun each with them. A4 and A6 had either a knife or a sword with them. It

is unnecessary to mention about the weapons possessed by other persons. The

assailants who were armed with guns opened fire at the deceased as well as

PW2. The deceased was then a few feet ahead of PW2 and both were running up

presumably to escape from the chasing assailants. Both of them sustained

serious gun shot injuries, though PW2 did not succumb to them. But the

deceased fell down at the spot and died. Seeing this the assailants took to

their heals leaving the jeep remaining at the spot as a mute remnant of the

acts done by them.

The prosecution examined four persons as eye witnesses, they are PW2 to

PW5. The trial court and the High Court placed reliance on the testimony of

PW2 Narayan and PW3 Janu Bhoir.

We have absolutely no doubt that PW2 Narayan who was injured and seen the

occurrence and hence he was competent to say who were all the assailants.

He also vouchsafed the presence of PW3 Janu Bhoir. We are not disposed to

disbelieve the testimony of those two witnesses as they were relied upon by

the two Courts.

Mr. SR Chitnis, learned senior counsel for the appellants contended that

the version of the eye witnesses is inconsistent with the injuries noted by

the doctors. According to the version of the eye witnesses the deceased was

running forward while the assailants shot him from behind but the fire arm

injuries sustained by the deceased could well have been shot face-to-face.

This aspect is not enough to doubt the correctness of the testimony of the

eye witnesses, for, it is quite possible as per the reflex action the

running deceased would have turned back either to see whether he has gone

out of the range of penil or to know the nearness of it. The mere fact that

PW2 eye witness said that the deceased was running forward and the

assailants shot them from behind cannot rule but the possibility of such

twirling of the deceased when the guns were fired.

Learned counsel then contended that the High Court had gone wrong in

relying on the evidence of PW18-Dy. S.P. who said that when A2 was arrested

and interrogated a gun was disintered pursuant to the information supplied

by him. It is on the said aspect that the Division Bench of the High Court

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considered the ratio in Pulikuri Kottaya. What PW 18 said in the Court is

that the statement made by A2 had been recorded in Exh. 91 memorandum. We

have noticed from the said memorandum the following statement of A2 as

recorded therein :-

"I have kept the fire arm concealed behind the old house in a heap of

wood".

The fact discovered by PW 18 is certainly not the gun. The fact discovered

is that A2 had concealed the gun (article no. 5/2) behind the old house

under a heap of wood. It was the same gun with which A2 had fired at PW2

and that aspect has been proved with the help of other evidence.

Mr. SR Chitnis, made an alternative endeavour to show that the act

committed by A2 can at the worst amount only to the offence under Section

307 of the IPC because PW2 had not succumbed to the injuries. When A2 along

with other assailants alighted from the jeep together and chased the

deceased and PW2 together and fired their lethal weapons together, the

common intention shared by A2 with other assailants (Al and A3) looms

large, albeit the fact that the bullet of his fire arm could reach only

upto the body of PW2 who was not destined to die. What A1 and A3 had done

was certainly with the common intention shared by A2-Nazir Babu also. Of

course, the High Court has convicted him under Section 302 with the help of

Section 149 of the IPC. That error has to be corrected by us. We,

therefore, confirm the conviction and sentence passed on A2-Nazir Babu

Sheikh under Section 302 with the aid of 34 of the IPC and dismiss Cr.

Appeal No. 189/2000.

But the position of A4 and A6 is different. Though they had knives with

them they had not chosen to do anything. Even after the deceased fell down

they did not move forward to inflict even a scratch on him. They did not do

any harm to PW2. There is nothing to indicate that they knew about the

design of the other assailants. They were acquitted by the trial court. The

view taken by the trial court on the facts of the case is reasonable and

hence it was impermissible for the appellate court to interfere with the

acquittal.

We, therefore, allow Crl. Appeal No. 194/2000 and set aside the conviction

and sentence passed on A4-Pandurang and A6-Janardhan Shaligram Patil. They

are acquitted. Their bail bond will stand discharged. (A copy of this

judgment will be forwarded to the Registrar of the Bombay High Court as

copies of the impugned judgment were directed to be circulated to all the

sessions judges under Bombay High Court. Now it is necessary to bring this

also to the notice of all those sessions judges).