JUDGMENT B.P. Singh, C.J.
1. Criminal Appeal No. 294 of 1995 has been preferred by accused No. 1, Ravi Daulat Mohade, against his conviction by the Court of Sessions for Greater Bombay in Sessions Case No. 474 of 1991, while Criminal Appeal No. 377 of 1995 has been preferred by the State of Maharashtra against the acquittal of co-accused, Deepak Shankar Somawanshi. Both the appeals have been heard together, and we now dispose them of by a common judgment.
2. The appellant in Criminal Appeal No. 294 of 1995, Ravi Daulat Mohade (hereinafter referred to as "accused Ravi"), and accused No. 2, Deepak Shankar Somawanshi Respondent in Criminal Appeal No. 377 of 1995 (hereinafter referred to as "accused Deepak"), were put up for trial before the Court of Sessions for Greater Bombay in Sessions Case No. 474 of 1991 charged of the offence under section 302 read with section 34 of the Indian Penal Code. By his judgment and order dated 29th March, 1995, the Additional Sessions Judge for Greater Bombay found accused Ravi guilty of the offence under section 302 read with section 34, I.P.C., and sentenced him to undergo imprisonment for life. He, however, acquitted accused Deepak of the charge levelled against him.
3. The prosecution case is that in an incident which took place at about 4 p.m. on 22nd January, 1991, one Shyam Sunder Yadav was assaulted and killed by accused Ravi, who gave him three successive blows with a knife, while accused Deepak, who accompanied him, prevented others from coming to the rescue of deceased Shyam Sunder. The prosecution has examined three eye-witnesses, viz., Rameshkumar (P.W. 1), said to be an auto rickshaw driver, in whose autorickshaw the injured was carried to the hospital; Motichand (P.W. 2), who owns a paan shop just adjacent to the Dugdhalaya owned by the deceased and his father; and Dassai Yadav (P.W. 3), who is the father of the deceased. P.W. 4 and 5 are the panch witnesses who have deposed to the various recoveries made by them and the panchnamas prepared. Kasam (P.W. 6) is the witness to the seizure of clothes, said to be blood-stained and belonging to deceased Shyam Sunder. Ghanshyam (P.W. 7) is a witness to the search of accused Ravi and seizure of his clothes on 23rd January, 1991 at 5 a.m. Suryawanshi (P.W. 8) was the Station House Officer at Bhandup Police Station on the day of occurrence, and he is said to have recorded the First Information Report (F.I.R) on the information furnished by P.W. 2. Ramchandra (P.W. 9) was the Police Inspector (Public Relations Officer) at Bhandup Police Station on the day of occurrence. Dr. Shivaji (P.W. 10) conducted the post-mortem examination on the dead body of Shyam Sunder on 23rd January, 1991 between 10.30 and 11.30 a.m., when he found the following ante-mortem injuries on the person of the deceased:---
1. Incised Wound (left) pericardial area 10 cm lateral from sternum 4 cm x 1 cm x 13 cm. Direction deep medially & downwards.
2. Incised Wound (left) hypochondrium area 3 1/2 cm x 2 cm x 1 cm medially and deep.
3. Contused Lacerated Wound (CLW) at (right) pectoral area 1 1/2 cm x 1 cm.
Internal injuries.
1. Fracture at 3rd rib cartilage (left), pleura lacerated.
2. Left lung lacerated at upper lobe lateral surface.
3. Lacerated at anterior surface at pericardium.
4. Lacerated at large vessels of heart.
According to the said doctor, the cause of death was shock due to haemorrhage due to multiple injuries. All the injuries were ante-mortem, and injuries No. 1 and 2 could be caused by sharp edged weapon like knife. According to him, death must have been caused instantaneously after infliction of such injuries.
4. The case of the prosecution is that immediately after the occurrence, Motichand (P.W. 2), along with P.W. 1, took the deceased to the hospital, where Shyam Sunder was declared dead. Thereafter, they went to the police station, and gave information, on the basis of which the F.I.R. (Exhibit 9) was drawn up.
5. Rameshkumar P. Shrivastav (P.W. 1) deposed that he has been an auto rickshaw driver for the last 9 years in Bhandup area, where the offence took place, and he was known to deceased Shyam Sunder, who was the son of the owner of Yadav Dugdhalaya. The witness also claims that he knew accused Ravi, as well as accused Deepak, since childhood. According to him, on 22nd January, 1991, the date of occurrence, he was taking tea at Yadav Dugdhalaya at 4.15 p.m. after parking his rickshaw outside the Dugdhalaya. Accused Ravi and Deepak came running from Jangal-Mangal Road, and while accused Deepak stood outside, accused Ravi went inside the Dugdhalaya, and dealt two or three knife blows on the left side of the chest of Shyam Sunder. Motichand (P.W. 2), the paanwala, raised an alarm. The paan shop of Motichand is by the side of the Dugdhalaya. The owner of the Dugdhalaya, Dassai Yadav (P.W. 3) also came there, whereafter accused Ravi ran away. The witness claims that he, as well as Motichand (P.W. 2) and Dassai (P.W. 3), chased Ravi. He further claims that accused Deepak had threatened them with his sword.
After the chase, this witness, as well as P.W. 2 and 3 kept injured Shyam Sunder in the auto rickshaw, and removed him to the hospital. Shyam Sunder was not in a position to speak. The Medical Officer examined Shyam Sunder in the hospital, and pronounced him dead. The witness claims that his statement was recorded by the Police on the same day. This witness further claims that his house was very near the Yadav Dugdhalaya, only about 1 km away, and he knew the father of the deceased since long, as they both hail from the State of Uttar Pradesh. He was on visiting terms with the father of the deceased (P.W. 3), and he often visited his hotel. Though there were two to three customers in the Yadav Dugdhalaya at the time of occurrence, he could not tell their names. He denied the suggestion that earlier he had been reprimanded by accused Ravi for having dashed his rickshaw against a girl on the road, and that he had threatened Ravi. He also denied the suggestion that while he was passing by, P.W. 3 called him, and requested him to carry injured Shyam Sunder to the hospital in his rickshaw, as he was not well.
6. So far as P.W. 1 is concerned, certain vital omissions in his statement under section 161 of the Code of Criminal Procedure were highlighted before the trial Court. Though he claimed that he knew Ravi and Deepak since childhood, and he stated so before the police, he could not give any reason why it was not so recorded. It also appears that in his statement under section 161, he had not stated that accused Ravi and Deepak came running to the hotel or that the paanwala (P.W. 2) raised an alaram, or that he, along with P.W. 2 and 3, had chased Ravi. In his statement under section 161, it was also not recorded that Motichand (P.W. 2), the paanwala, assisted them in carrying the injured to the auto rickshaw.
The further version of this witness is that he reached the hospital at about 4.30 p.m., and was there for about 10 minutes. From there he went to the police station, and made a report. Motichand (P.W. 2) was also with him when he went to the police station. He told the police that accused Ravi had committed the murder of the deceased, and accordingly, his statement was recorded on which he had put his signature. He denied the suggestion that he arrived at the place of occurrence after the incident was over, and that he was falsely involving the accused in this case because of the incident which took place earlier.
7. On a plain reading of the deposition of this witness, one gets the impression that this witness had witnessed the occurrence and, thereafter carried the deceased in his auto rickshaw to the hospital. After the deceased was declared dead, he went to the police station, and made a report. While he lodged the report, Motichand (P.W. 2) was also present. If what is stated by this witness is believed to be true then the F.I.R. should have been recorded at the instance of this witness, but we find that the F.I.R. was lodged by Motichand (P.W. 2). There is also nothing in the statement of P.W. 1 to the effect that Motichand (P.W. 2) also made a statement at the Police Station which was recorded by the police.
8. The trial Court has rejected the testimony of P.W. 1, and we find that the trial Court was fully justified in rejecting his testimony as unbelievable. The witness has stated about the manner in which the incident took place, but, in his statement under section 161 of the Criminal Procedure Code, all the salient facts about the manner of occurrence are missing. This apart, he claims to have lodged a report with the police at the police station, but the F.I.R., which has been produced in this case, is the one recorded at the instance of Motichand (P.W. 2).
9. The second eye-witness examined by the prosecution is Motichand (P.W. 2). He claims that on the date of occurrence, he was cleaning his paan shop, which is adjoining Yadav Dugdhalaya on the front side. This witness claims to know the deceased, as also the father of the deceased. According to this witness, earlier in the day at about 2.30 p.m., accused Ravi had come to the Dugdhalaya for tea, and since there was some delay in serving him, he had abused the waiter as well as the deceased. On protest being raised by the deceased, accused Ravi had caught the shirt-collar of the deceased. This witness claims that he intervened, and separated them.
Later at 4 p.m., while he was in the paan shop, he saw that accused Ravi and Deepak came running to the hotel of the deceased and accused Ravi dealt three knife-blows on deceased Shyam Sunder on his chest. Accused Deepak was standing near the entrance with a sword in his hand, and threatened to kill if anyone intervened. On being injured, deceased Shyam Sunder shouted, and thereafter fell down. His father came from inside. Accused Ravi started running away, but he was chased by this witness, Ramesh (P.W. 1) and Dassai, father of the deceased (P.W. 3). Accused Deepak also ran along with accused Ravi. After the futile chase, they came back to the hotel, and removed injured Shyam Sunder to the hospital in a rickshaw. From the hospital, this witness claims to have gone to the Bhandup Police Station, and made a report. At the hospital, Shyam Sunder had been declared dead. This witness is categorical in his statement that only after Shyam Sunder was pronounced dead, he went to Bhandup Police Station.
10. The third eye-witness is Dassai, father of the deceased (P.W. 3). This witness has also deposed to the scuffle which took place earlier at about 2 p.m. He stated that later at about 4 p.m. he was in the rear side of his hotel. Accused Ravi came, and started assaulting Shyam Sunder with knife on the left side of his chest. After receiving the first blow, Shyam Sunder cried, and this witness rushed, and noticed two more blows being inflicted by accused Ravi on the deceased. Accused Ravi then started running away, while accused Deepak was standing in the middle, between accused Ravi and the witnesses. According to this witness, he and Motichand (P.W. 2) chased the accused but in vain. They returned thereafter and removed injured Shyam Sunder in a rickshaw to the hospital. At that time, Ramesh (P.W. 1) and Motichand (P.W. 2) were with him. This witness further claims that his statement was recorded by the police. In his cross-examination, he was clarified that there was open space behind Yadav Dugdhalaya, which has a door in the front as well as in the rear. Beyond the open space, there is a room which is used as a resting place. He denied that he was resting in the room at 4 p.m., and he further denied the suggestion that he had not seen the incident.
11. The evidence of the next prosecution witness which we may notice at this stage is Babanrao Suryawanshi (P.W. 8) who was the Station House Officer at Bhandup Police Station on the date of occurrence between 8 a.m. and 7 p.m. According to this witness, one person came to the police station with an injured, and stated that injured Shyam Sunder was assaulted by accused Ravi and Deepak at Yadav Dugdhalaya. He sent the injured to the hospital for treatment with a Police Constable. He detained the informer, who disclosed his name as Motichand (P.W. 2), and recorded his complaint. He admitted Exhibit 9 as the complaint recorded by him. Police Inspector Palve was also on duty at that time, and this witness informed him about the complaint. This witness registered the offence under section 302 read with section 34 of the Indian Penal Code. After doing so, he along with Palve, Police Inspector, went to the hospital, and held inquest on the dead body of Shyam Sunder, and seized his clothes.
12. In cross-examination, Babanrao Suryawanshi (P.W. 8) categorically stated that it did not happen that the complainant had carried the injured to the hospital first, and from there, he came to the police station. He further stated that after the complaint was recorded by him, Motichand (P.W. 2) went to the hospital. He admitted that the place of occurrence was hardly five minutes walking distance from Bhandup Police Station.
13. Ramchandra Baburao Palve, Police Inspector (Public Relation Officer) was examined as P.W. 9. He admitted that on the date of occurrence between 8 a.m. and 8 p.m, he was the Public Relation Officer at Bhandup Police Station. Suryawanshi (P.W. 8), who was the Station House Officer at the relevant time, met him at 4.20 p.m., and informed him that he had sent an injured to the hospital in a rickshaw. This witness claims that thereafter he along with P.W. 8 rushed to the hospital. The injured had been pronounced dead. Suryawanshi (P.W. 8) recorded the complaint of Motichand (P.W. 2) in the presence of this witness, and registered the offence vide Crime No. 33/91 by contacting the police station on telephone. Thereafter, he performed the inquest on the dead body of Shyam Sunder. He denied the suggestion made to him that the statement of Rameshkumar (P.W. 1) was recorded prior to the statement of Motichand (P.W. 2). He also denied the suggestion that the First Information Report (F.I.R.) was lodged by Rameshkumar (P.W. 1), or that P.W. 1 had signed the complaint.
14. From the testimony of the witnesses, it appears that there are several inconsistencies as to the manner in which the F.I.R. was lodged, by whom and where. P.W. 1 is categorical in his assertion that after the injured was removed to the hospital in his rickshaw, and after the injured had been pronounced dead, he went to the police station, and made a report. According to him, he reached the hospital at about 4.30 p.m., was there in the hospital for about 10 minutes, and from there, went to the police station, and made a report. According to P.W. 1, Motichand (P.W. 2) was also with him when he went to the police station. He was at the Police Station for 10 to 15 minutes.
If what is stated by P.W. 1 is true, the F.I.R. should have been recorded at the instance of P.W. 1; but we find that Exhibit 9 is a report lodged by Motichand (P.W. 2). P.W. 1 does not say that Motichand had also made a statement before the police, though he had accompanied him to the Police Station.
If we critically scrutinise the testimony of Motichand (P.W. 2), it would appear that, according to him, Shyam Sunder was removed to the hospital, and from the hospital, Motichand (P.W. 2) went to Bhandup Police Station, and made the report (Exhibit 9). He is quite categorical in his assertion that after Shyam Sunder was pronounced dead in the hospital, he went to Bhandup Police Station. Ramesh (P.W. 1) had accompanied him to the police station, and the witness is equally categoric in stating that the statement of Ramesh was recorded first, and his statement was recorded thereafter.
15. The testimony of these two witnesses is not reconcilable so far as the lodging of the report at the police station is concerned. While P.W. 1 claims that he made a report, P.W. 2 claims that he made a report on the basis of which F.I.R. (Exhibit 9) was recorded. He, however, admits that the statement of Ramesh was recorded first. Counsel for the accused rightly urged before us that the information given by Ramesh should have been the basis for the drawing up of the F.I.R., but that statement has not seen the light of the day.
16. What is even more surprising is the fact that the Investigating Officer (P.W. 8) has given a third version about the lodging of the F.I.R. According to P.W. 8, one person by name Motichand had come to the police station with injured Shyam Sunder, and this witness immediately sent the injured to the hospital with a police constable. He detained Motichand, and recorded his statement at the police station. He categorically asserted that the complainant had come to the police station first, and that he had not come to the police station from the hospital. He also does not mention about the presence of P.W. 1. He further claims that he registered the offence under section 302 read with section 34, I.P.C. This is rather surprising, because, at that stage, the injured had not died, and he was being removed to the hospital for treatment. The version given by P.W. 8 is wholly inconsistent with the version given by P.W. 1 or P.W. 2 about the recording of the F.I.R. If P.W. 8 is to be believed, Motichand brought the injured to the police station, and the injured was sent to the hospital with a constable by this witness, while he recorded the complaint of Motichand at the police station. Why the offence was registered under section 302 read with section 34, I.P.C., at that stage, is not understandable, because the injured was still alive, and P.W. 8 left for the hospital after registering the offence under section 302 read with section 34, I.P.C.
17. Police Inspector, Ramchandra (P.W. 9), gives yet another version about the recording of the F.I.R. According to this witness, he was informed by P.W. 8 that the injured had been sent to the hospital. He along with P.W. 8 then proceeded to the hospital, where the injured was pronounced dead. This witness claims that in his presence P.W. 8 recorded the complaint of Motichand, and contacted police station on telephone for registering the offence vide Crime No. 33/91. Thereafter, P.W. 8 held inquest on the dead body of Shyam Sunder in his presence. According to this witness, therefore, the information which formed the basis of the F.I.R. was recorded by P.W. 8 at the hospital at the instance of Motichand (P.W. 2), and not in the police station. This is clearly contrary to the version disclosed by P.W. 8 that he had recorded the information given by Motichand (P.W. 2) at the police station itself, and only thereafter he, as well as P.Ws. 9 and 2, went to the hospital.
18. We, therefore, entertain a serious doubt as to whether the F.I.R. produced at the trial really represents the earliest version of the occurrence as reported by Motichand (P.W. 2). There are four versions about the recording of the F.I.R. the first, being the version of P.W. 1 that he was the first person to lodge the report at the police station; the second, being that of P.W. 2, who states that he and P.W. 1 had together gone to the police station from the hospital, and P.W. 1's statement was recorded first, whereafter he gave his statement; the third, being the version given by Investigating Officer, P.W. 8, that only Motichand had brought the injured to the police station, where he recorded the F.I.R. after sending the injured to the hospital; and the fourth, being the version of P.W. 9 that the F.I.R. was recorded at the hospital, and not in the police station. There is, therefore, considerable force in the contention urged on behalf of the accused that the witnesses are not speaking the truth, and that the F.I.R. produced at the trial does not represent the earliest version of the occurrence as disclosed either by P.W. 1 or P.W. 2.
19. The earliest statement given by P.W. 1 has not been produced at the trial, though he having made the first statement about the occurrence to the Police is admitted by P.W. 1 himself as also by P.W. 2. The story as disclosed by P.W. 8 runs counter to the version of P.Ws. 1 and 2, because both these eye-witnesses claim that they had first gone to the hospital, and after Shyam Sunder was declared dead, they reported the matter at the Bhandup Police Station. This is contradicted by P.W. 8, who mentions about the presence of P.W. 2 at the police station along with the injured, and further claims that he had sent the injured to the hospital for treatment. The fact that the crime was registered under section 302, I.P.C., gives an impression that the statement must have been recorded at a stage subsequent to the injured being declared dead, though P.W. 8 insists that he had recorded the statement at the police station even before going to the hospital, where the injured was pronounced dead. If we believe the testimony of P.W. 9, it must be held that the information was given to P.W. 8 at the hospital in the presence of P.W. 9, which is not the case either of P.W. 1 or P.W. 2 or even P.W. 8. We, therefore, entertain serious doubt as to whether the F.I.R. produced at the trial really represent's the earliest version of the occurrence. Counsel for the accused submitted that the earliest version of the incident has been kept away from the Court, and the evidence on record, thus, clearly establishes that the report produced before the Court is the report which was prepared much later and after due deliberation. The earliest version has not been produced before the Court because it may not have supported the prosecution case as set up at the trial. The witnesses have, perhaps, not seen the offence, and, therefore, their earliest version may not have implicated the accused. That is why a false F.I.R. was prepared later, and was ante-timed and/or ante-dated. This explains the inconsistency in the evidence of P.Ws. 1, 2, 8 and 9.
20. So far as the recovery of weapon of offence is concerned, we find that though the same was sent to the Chemical Analyser for examination, the report of the Chemical Analyser does not refer to a knife at all. Therefore, the recovery of the knife, said to have been made at the instance of accused Ravi, is of no help to the prosecution-inasmuch as there is no report of the Chemical Analyser about the said weapon of offence, and, therefore, no evidence to show that the knife was stained with human blood, and might have been used in the commission of the crime.
21. We, therefore, hold that there is substance in the submission of the accused that the F.I.R. produced at the trial (Exhibit 9) does not appear to be the earliest information given by P.W. 1 or P.W. 2 to the police. In fact, P.W. 1 claims that he was the first person to have lodged the report, a fact supported by P.W. 2. His earliest statement, therefore, should have been the basis for the drawing up of the F.I.R. That statement has not seen the light of the day. It is not even certain as to whether Exhibit 9 was recorded at the police station before the injured was taken to the hospital, or whether it was recorded after the injured was declared dead. While the evidence of P.W. 8 is to the effect that it was recorded at the police station before the injured was declared dead, the fact that the crime was registered under section 302 read with section 34 of the Indian Penal Code indicates otherwise. Even the evidence of P.W. 9 is to the effect that P.W. 8 had telephonically contacted the police station for registering the crime under section 302, I.P.C. of course, his version is that the information was given by P.W. 2 to P.W. 8 at the hospital and not at the police station-a version not subscribed to by any of the other witnesses. We, therefore, find considerable difficulty in accepting the case of the prosecution. In any event, in the aforesaid circumstances, the accused are entitled to the benefit of doubt.
22. We, therefore, allow Appeal No. 294 of 1995, and acquit accused Ravi Daulat Mohade of the offence punishable under section 302 of the Indian Penal Code, giving him the benefit of doubt, and direct that he be set at liberty forthwith, if not required in any other case.
23. Consequently, we find no merit in the Criminal Appeal preferred by the State against the acquittal of accused Deepak Shankar Somawanshi. Criminal Appeal No. 377 of 1995 is, therefore, dismissed.