1999 ALL MR (Cri) 1593
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

VISHNU SAHAI AND R.P. DESAI, JJ.

Tulshiram Bhanudas Kambale & Ors. Vs. The State Of Maharashtra

Cri. Appeal No. 32 of 1996,Cri. Appeal No. 71 of 1996,Cri. Appeal No. 83 of 1996

5th April, 1999

Petitioner Counsel: Mr. V. M. THORAT with Mr. PRAMOD PATIL, Mr. RAM RAO ADIK with Mr. B. R. PATIL
Respondent Counsel: Mr. D. B. BHOSALE, Mr. S. R. BORULKAR (Addl. P.P.)

(A) Evidence Act (1872) S.3 - Evidence of recovery - Police Inspector after effecting recoveries not affixing lakh seals on them - Evidence cannot be relied on.

1995 Cri. L.J. 1432, AIR 1955 Raj. 82 Rel. on. (Para 8)

(B) Criminal P.C. (1973) S.401 (3) - Powers of High Court - Cannot convert finding of acquittal into conviction.

In the absence of an appeal against acquittal and the stipulation of a specific embargo in section 401 (3) Cr.P.C. which prohibits the High Court from converting a finding of acquittal into one of conviction, the High Court even in a case where it feels that the acquittal is perverse, cannot convert a finding of acquittal into one of conviction by suo motu exercising its revisional power. [Para 10]

(C) Evidence Act (1872) S.3 - Evidence of witness - Witness deliberately making improvement to bring his evidence in conformity with medical evidence - It would not be prudent to accept his testimony.

1996 Cri. L.J. 496 Rel. on. (Para 17)

(D) Criminal P.C. (1973), S.157 - F.I.R. - Sending copy to Magistrate forthwith is obligatory duty of police - Inference of anti-timing F.I.R. when can be drawn.

S.157 Criminal P.C. casts an obligatory duty on the police to forthwith send a copy of the F.I.R. to the Magistrate and whenever the Police fail to discharge this mandatory duty it is under a legal obligation to furnish the reasons for not discharging it. [Para 28A]

Before in a given case an inference is drawn that the F.I.R. was anti-timed some circumstances have to be shown either from cross-examination of the relevant witnesses or from material appearing on record which would probabilise the anti-timing of the F.I.R. [Para 28]

(E) Penal Code (1860), S.452 r.w. S.34 and S.149 - Charge under S.452 r.w. 149 - Accused can be convicted under S.452 r.w.s. 34.

AIR 1958 SC 672 Rel. on. (Para 30)

Cases Cited:
State of Maharashtra Vs. Prabhu Barku Gade, 1995 Cri. L.J. 1432 [Para 8]
Amarjit Singh Vs. State of Punjab, (1993) 4 Cur. Cri. R. 486 [Para 8]
State Vs. Motia, AIR 1955 Rajasthan 82 [Para 8]
Ishwar Singh Vs. State of U.P., AIR 1976 SC 2423 [Para 14,25]
Vijai Shankar Misra Vs. The State, 1984 Allah. L.J. 1316 [Para 16]
Badri Vs. State of Rajasthan, 1996 Cri.L.J. 496 [Para 17]
Solanki Chimanbhai Ukabhai Vs. State of Gujarat, AIR 1983 SC 484 [Para 20]
Marudanal Augusti Vs. State of Kerala, AIR 1980 SC 638 [Para 25]
Madru Singh Vs. State of Madhya Pradesh, 1997 SCC (Cri.) 1323 [Para 26]
Ram Sanjivan Singh Vs. State of Bihar, 1996 (8) SCC 552 [Para 26]
AIR 1958 SC 672 [Para 30]


JUDGMENT

SAHAI, J.:- Since these three connected criminal appeals arise out of the same set of facts and a common impugned judgment, we are disposing them of by one judgment.

2. Through these criminal appeals, the appellants challenge the judgment and order dated 4th January, 1996, passed by the Additional Sessions Judge, Pandharpur, in Sessions Case No. 44 of 1995, whereby they have been convicted and sentenced in the manner stated hereinafter :-

(i) All the appellants u/s 452 r/w 149 I.P.C. to undergo 3 years R.I. :

(ii) Appellants Tulshiram Kambale, Ramchandra Kambale. Ganesh Shirsat. Ashok Waghmare, Dnyaneshwar Naikwadi, Anil Mane and Sunil Mane to undergo life imprisonment u/s 302 r/w 149 I.P.C. ; and

(iii) Appellants Tulsiram Kambale, Anil Mane and Rajendra Kothalkar to undergo two years' R.I. for the offence u/s 324 r/w 149 I.P.C.

The sentences of the appellants were ordered to run concurrently.

3. In short the prosecution case runs as under :-

The appellants belong to the Koli community and are inter-related. Between them on one hand and the informant Rajabhau Kamble (P.W.7), Dattatraya Kamble (P.W.8), Bhaskar Bhinge (P.W. 11), his brother Pandurang Bhinge, Mahesh Bhinge (P.W.12), Laxman Kamble (the deceased) and Kailas Bhinge (the deceased), there was long standing enmity of acute nature. Its details have been furnished in paragraph 9 of the statement of the informant Rajabhau Kamble.

On 19-2-1995 at about 5 p.m. the deceased persons Bhaskar Bhinge and Dattatraya Kamble alongwith some others were watching a film on Television inside the house of the deceased Laxman, in Pandharpur Taluka, within the limits of District Sholapur. The informant Rajabhau Kamble and Pandurang Bhinge also came there. After some time Pandurang Bhinge left. At about 7.30 p.m. the film got over. Thereafter the deceased persons, Dattatraya Kamble and Rajabhau Kamble came and sat in the courtyard of Laxman. Bhaskar Bhinge remained inside and was listening to the news. At that time in the jeep of acquitted accused Laxman Paparkar, the appellants alongwith acquitted accused Laxman Paparkar Walchand Shah, Manikchand @ Babusha Shah and Balu Kamble came. They were armed with weapons-Sattur, axe and sword. They entered inside the court-yard of Laxman. Appellants Tulsiram Kambale and Dagadu started inflicting blows with swords on Dattatraya's person. Appellants Rajendra and Anil Mane assaulted Dattatraya with Sattur. Kailas Bhinge, the deceased at that time was sitting by the side of water tank which was in the courtyard. Appellants Ramchandra with an axe, Santosh, Dhananjay alias Dahanaji, acquitted accused Laxman, Walchand and Babusha with swords started assaulting him. Appellant Tulshiram also is said to have joined them. Bhaskar Bhinge (P.W. 11) in the meantime came out; caught hold of Babushah Shah; and asked him as to why he was assaulting Kailas, whereupon he inflicted a blow from the blunt side of sword on his right thigh. Thereafter Babu Shah and Tulsiram lifted Bhaskar Bhinge and took him to the gate of the house and made him stand there. Appellants Dagadu with sword, Raja alias Rajendra Kothalkar, Anil Mane, Sunil Mane, Ashok Waghmare and Ganesh Paparkar assaulted the deceased Laxman with Sattur on various parts of his body like head, face and hand. In the meantime Bhaskar Bhinge's son Mahesh Bhinge (P.W. 12) came and Walchand Shah inflicted a sword blow on his person. After assaulting Laxman, Kailas, Dattatraya, Bhaskar Bhinge and Mahesh Bhinge, the appellants and the acquitted accused are alleged to have run away.

This incident was seen by the victims, Rajabhau Kamble and Suresh Sobaji (P.W. 13) in electric light.

It is said that Kailas Bhinge succumbed to the injuries on the spot.

Immediately after the appellants and the acquitted accused persons had run away, Rajabhau Kamble took Laxman Kamble and Dattatraya Kamble to Municipal Dispensary, Pandharpur, Bhaskar Bhinge and Mahesh Bhinge also came there.

4. The evidence of Dr. Anil Joshi (P.W. 9) of Municipal Dispensary, Pandharpur shows that at 7.45 p.m. he examined Laxman Kamble and found him to be dead. At 8 p.m., 8.45 p.m. and 9.15 p.m. the same day, Dr. Joshi examined Dattatraya Kamble, Bhaskar Bhinge and Mahesh Bhinge respectively.

On the person of Dattatraya Kamble, Dr. Joshi found four incised wounds and one contused lacerated wound. Two of the incised wounds were situated on the head and the remaining two on fingers of the right hand. The contused lacerated wound was situated on the middle finger of the right hand. Since the condition of Dattatraya was precarious, at 8.30 p.m., he was transferred to Civil Hospital Sholapur.

On the person of Bhaskar Bhinge Dr. Joshi found a contusion 6 x 4 cm. on right thigh interior aspect and a transverse abrasion 6 cm. over right thumb.

On the person of Mahesh Bhinge, Dr. Joshi found 2 lacerated wounds. One out of them of the diamensions of 2 cm. x 1 cm. was situated on left hand little finger and the other which was 5 cm. muscle deep was located on the left hand terminal finger.

5. On 20-2-95 Dr. Joshi (P.W. 9) performed the autopsy on the corpse of Laxman Kamble and found on the same 16 ante-mortem injuries, their break-up being thus : 15 incised wounds and 1 contused abrasion. Nine of the incised wounds were situated on the head and face and were accompanied by extensive internal damage. According to Dr. Joshi the injuries of the deceased were sufficient in the ordinary course of nature to cause death and five of them namely injuries no. 1, 2, 3, 4 and 12 were fatal in nature.

6. The evidence of the informant Rajabhau Kamble (P.W. 7) shows that from Municipal Hospital Pandharpur the police took him to Pandharpur Town Police Station where his F.I.R. was lodged at 8.40 p.m. the same day. It was recorded by A.P.I. Vithal Jadhav (P.W. 18), who on its basis registered a case under section 147, 148, 302, 307, 452, 323, 324 and 188 I.P.C. vide C.R. No. 23 of 1995.

7. It is pertinent to point out that the same day, between 11 p.m. to 11.50 p.m. Sharan Basappa Tarapore (D.W. 3) an Executive Magistrate, recorded the statement of Dattatraya Kamble. The said statement is Exhibit - 130 and in it Dattatraya stated that the same day between 7 to 7.30 p. m. while he was sitting with Kailas Bhinge and Laxman Kamble, appellant Tulsiram Kamble, Anil Mane, Dagadu Naikwadi, Raja Kothalkar and two other unknown persons came and started assaulting him. Tulsiram and Dagadu assaulted him with swords, and the other persons with axe. All were shouting that "he be killed".

8. The investigation was conducted in the usual manner by A.P.I. Vithal Kamble (P.W. 18) Police Inspector Vidhyadhar Dadake (P.W. 19) and Police Inspector Prakash Chavan (P.W. 20)

Police Inspector Dadake arrested the appellants and the acquitted accused and effected some recoveries on their pointing out. We are not adverting to these recoveries in detail because they cannot be relied upon for the evidence of Police Inspector Dadake shows that after effecting them he did not affix lakh seals on them. During his cross-examination, in para 15, he admitted this, though he denied the defence suggestion that he had sprinkled blood on the recovered articles.

A Division Bench of this Court of which one of us was a member (Vishnu Sahai, J.) in the case of (State of Maharashtra Vs. Prabhu Barku Gade) reported in 1995 Cri. L.J. Page 1432 in paragraph 12, relying upon the decision of the Apex Court reported in (1993) 4 Cur. Cri. R. 486 Amarjit Singh Vs. State of Punjab and A.I.R. 1955 Rajasthan Page 82 (State Vs. Motia) laid down the ratio that "where the recovered articles were not immediately sealed, no value can be attached to the said recovery."

As held in A.I.R. 1955 Rajasthan Page 82 (supra) the question was not whether human blood was actually put on the recovered articles but whether it could have been ?

On completion of the investigation the charge-sheet was filed against the appellants and the acquitted accused.

9. Going backwards, the autopsy on the corpse of Kailas Bhinge was conducted on 20th February, 1995 by Dr. Bajrang Dhotre (P.W. 10), who found on it 13 antimortem incised wounds out of which five were situated on the head and were accompanied by fracture of skull with laceration of brain. In the opinion of Dr. Dhotre, 3 of the incised wounds namely injuries 2 to 4 were fatal in nature and were sufficient in the ordinary course of nature to cause death.

10. The case was committed to the Court of Sessions in the usual manner where the appellants and the acquitted accused were charged for offences punishable under sections 147, 148, 302, 323, 324 r/w 149 I.P.C. etc. to which they pleaded not guilty and claimed to be tried.

During the trial in all the prosecution examined 20 witnesses, five of them namely Rajabhau Kamble, Dattatraya Kamble, Bhaskar Bhinge, Mahesh Bhinge and Suresh Sobaje P.Ws. 7, 8, 11, 12 and 13 respectively were examined as eye witnesses.

The defence of the appellants was denial. In defence 3 witnesses namely Ram Shinde, Dr. Shivanand Hippargi and Sharan Basappa Tarapure D. Ws. 1, 2 and 3 respectively were examined.

It is significant to point out that the acquitted co-accused Laxman Shirsat @ Paparkar pleaded alibi. His defence was that on 18-2-1995, he came to Government General Hospital Afzalpur, where he was admitted the same day and was discharged on the next day i.e. on 19-2-1995 at 6 p.m. To prove his plea of alibi Laxman Shirsat alias Paparkar examined Dr. Shivanand Hippargi, D.W. 2, who at the said time was posted as medical officer, Government General hospital Afzalpur. Dr. Hippargi mentioned about the said facts in his deposition. He also stated in paragraph 3 of his statement that Afzalpur was situated at a distance of 180 kilometers from Pandharpur where the incident took place.

Since the incident took place between 7.30 to 7.40 p.m. on 19-2-95, the learned trial Judge rightly accepted the plea of alibi because if Laxman Shirsat alias Paparkar was discharged at 6 p.m. on 19-2-1995 he could not have participated in the incident at Pandharpur situated 180 kilometers away about 1 1/2 hours later, the same day.

It is significant to point out that prosecution had declined to cross-examine Dr. Shivanand Hippargi and his evidence has gone unchallenged.

It is also pertinent to mention that the learned Judge accepted the plea of denial of accused Walchand Shah, Manikchand @ Babu Shah and Balu Kamble.

It is significant to point out that the State of Maharashtra has not impugned the acquittal of the said persons by preferring an appeal under section 378 of Cr.P.C. but be that as it may, we cannot refrain ourself from observing that the reason given by the learned trial Judge for acquitting Walchand Shah and Manikchand @ Babu Shah namely in the absence of recoveries there was no evidence against them was erroneous. There were other reasons which justified their acquittal but they have not been mentioned by the leaned trial Judge.

We would like to make it clear that in the absence of an appeal against acquittal and the stipulation of a specific embargo in section 401 (3) Cr.P.C. which prohibits the High Court from converting a finding of acquittal into one of conviction, the High Court even in a case where it feels that the acquittal is perverse, cannot convert a finding of acquittal into one of conviction by suo motu exercising its revisional power.

The learned trial Judge, however, believed the prosecution evidence vis-a-vis the appellants and convicted and sentenced them in the manner stated in paragraph 2.

11. We have heard learned Counsel for the parties. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statements of the appellants recorded under section 313 Cr.P.C. ; the statements of the defence witnesses; and the impugned judgment. After utmost circumspection we have reached the conclusion that it would only be safe to convict the appellants Tulsiram Kambale, Anil Mane, Dagadu Naikwadi and Raja Kothalkar (Rejendra Kothalkar) for the offence under section 452/ 34 I.P.C.

12. In the instant case, in trial Court, five witnesses namely Rajabhau Kamble, Dattatraya Kamble, Bhaskar Bhinge, Mahesh Bhinge and Suresh Sobaje, P.Ws. 7, 8, 11, 12 and 13 respectively were examined by the prosecution.

13. We have no reservations in concluding that Suresh Sobaje is a got up witness for three reasons :-

(a) He is not named in the F.I.R. :

(b) The evidence of police inspector Dadake (P.W. 19) shows that he only discovered on 27-2-95 that he had witnessed the incident and on the said date he recorded his statement under section 161 Cr.P.C. :

(c) He was a chance witness residing in Taluka Omerga and explained his presence by alleging that while he was passing in front of Padamshali Dharmashala, he heard cries; stood at the entrance of the said Dharmashala; and saw the incident. But in his statement under section 161 Cr.P.C. there was no mention that he saw the incident from the entrance of the said Dharmashala.

The said omission was proved by police inspector Dadake (P.W. 19) and when Suresh Sobaje was confronted with it, all he could say was that he had mentioned it to the police inspector and could give no reason why it was not there in his statement. We are not prepared to swallow this claim of his.

14. Having rejected the evidence of Suresh Sobaji, we are left with that of Rajabhau Kamble, Dattatraya Kamble, Bhaskar Bhinge and Mahesh Bhinge.

The evidence of these four witnesses is to be evaluated in the background of the conclusions enumerated herein after :-

(a) They are enimical to the appellants;

(b) They have falsely implicated Laxman Shirsat @ Paparkar; and

(c) They have falsely stated that Suresh Sobaji (P.W. 13) witnessed the incident.

To appreciate conclusion (a) it would be necessary to refer to the inter se relationship between these witnesses and the deceased persons. Rajabhau Kamble and Dattatraya Kamble are real brothers and the deceased Laxman was also their real brother. Bhaskar Bhinge and Mahesh Bhinge are father and son inter se and Kailas Bhinge was the real brother of Bhaskar Bhinge.

Paragraph 9 of examination-in-chief of Rajabhau Kamble establishes that these witnesses were eniminal to the appellants, who, as admitted by him in paragraph 11, were relations inter se.

In paragraph 9 Rajabhau Kamble admitted that in 1995 his sister's husband Prakash Sangitrao had contested Municipal elections against the appellant Tulsiram Kambale and in the said election he, Kailas Bhinge and others had canvassed on behalf of Prakash Sangitrao and, therefore, Tulsiram Kambale was annoyed with them. There are other admissions which show that the said witnesses and the two deceased persons belonged to one party and were enimical to the appellants but in our view it would not be necessary to advert to them.

Conclusion (b) is based on the evidence of Dr. Shivanand Hippargi (D.W. 2) Medical Officer Government General Hospital Afzalpur. The evidence of Dr. Hippargi, to which we have referred to in paragraph 10, was that on 18-2-1995 at about 5 p.m. he admitted Laxman Shirsat @ Paparkar in the hospital and discharged him from there on 19-2-1995 at 6 p.m. and the distance between Afzalpur and Pandharpur where the incident took place was 180 kilometers. In view of evidence of Dr. Hippargi whom the prosecution had not cross-examined, we have concluded in para 10 that the trial Judge had rightly held that the said accused having been discharged at 6 p.m. on 19-2-1995 could not have participated the same day in the incident which took place between 7.30 to 7.40 p.m. (about one and half hours later).

Conclusion (c) is based on the reasons mentioned in para 13. The Supreme Court in the oft-referred case of Ishwar Singh Vs. State of U.P. reported in A.I.R. 1976 S.C. page 2423 in para 6 has held that if a witness deposes about the presence of a false witness his presence itself is rendered false. In that case like the present case there were injured witnesses and the Supreme Court in para 6 observed as follows :-

"6. The High Court accepted the evidence of the prosecution witnesses who claim to have seen the incident except the testimony of Jait Singh (P.W. 7). Jait Singh and Ram Rikh (P.W. 6) both claim to have seen the assault together from Rikh's house and both have said that they hurried to the place of occurrence. The High Court thought that Jait Singh's presence at the time of the incident was doubtful and excluded his testimony from consideration. If Jait Singh was not a truthful witness we do not see how Ram Rikh (P.W. 6) and the other two eye-witnesses examined Mahabir (P.W. 1) and Satyapal (P.W. 2), could be relied on, because they have also said that Jait Singh was present at the place of occurence."

14A. In our view on account of conclusions (a) to (c) the evidence of the said eye witnesses has to be evaluated with meticulous scrutiny bearing in mind that if they can falsely implicate Laxman Shirsat and falsely depose about the presence of Suresh Sobaji, they can also falsely implicate the appellants.

14B. When the evidence of eye-witnesses stands discredited in respect of parts constituting core of the prosecution case it becomes extremely hazardous to place reliance on it. It should only be accepted, if the residual account furnished by them is free from all blemish and is in consonance with probabilities.

15. In the said perspective we propose examining the evidence of four eye witnesses. We begin with that of Rajabhau Kamble. His evidence shows that he and his brother Laxman lived separately. He explained his presence by alleging that on the date of the incident he had come to watch television at the house of his brother Laxman and while he was in his court-yard at about 7.30 p.m. the incident took place. He thereafter took Laxman to Municipal Dispensary, Pandharpur. His presence has been assailed by the learned Counsel for the appellant on a large number of grounds.

Firstly it has been contended that in the statement of Dattatraya Kamble recorded by the Executive Magistrate Saharana Basappa Tarapure, who questioned him in the following manner : "who saved you from the above attack ? and who admitted you in hospital ?" there is no mention of Rajabhau Kamble and instead the names mentioned are Dhanu Adatrao Soma A. Mahesh Sangitrao and Pandurang Bhinge. In our view, had he been there, his name would have been mentioned.

Again in paragraphs 5 and 6 (in examination-in-chief) of his evidence this witness states that from Municipal dispensary, the police took him in a jeep to the police station where he lodged his F.I.R. but the evidence of A.P.I. Vithal Jadhav (P.W. 18), who recorded the F.I.R. is that he had taken him from his house.

Further in our view had he been present at the place of incident he would have made an effort to save his brothers Dattatraya and Laxman from being assaulted and thus would have sustained injuries. His conduct in not rescuing his brothers from assault and the absence of injuries on his person also creates doubts on his presence.

Further though he admitted that his clothes had become stained with blood but the investigating officer did not take them into possession. The recovery of his blood stained clothes by the investigating officer would have lent a feal of assurance on his claim of having been present on the place of incident.

We feel that in view of the said infirmities bearing in mind :- (a) that he is a enimical witnesses; (b) has falsely deposed to about presence of Suresh Sobaji; and (c) has falsely implicated co-accused Laxman Shirsat @ Paparkar to whom in his examination in chief, in para 3, he has assigned, the specific role of assaulting the deceased Kailas with a sword, it would not be safe to place reliance on his evidence.

16. We also feel that it would not be safe to place reliance on the evidence of Bhaskar Bhinge and Mahesh Bhinge.

It is true that these witnesses are alleged to be injured witnesses but we have grave doubts about their veracity and truthfulness. We wish to emphasise that before the evidence of an injured witness can be accepted by a Court it should be satisfied that he is a truthful witness and the account furnished by him is in consonance with probabilities. There is no rule of appreciation of evidence which requires that because a witness is injured his evidence ipso facto should be accepted as gospel truth.

We are fortified in our view by the ratio laid down by a Division Bench of the Allahabad High Court in the case of Vijai Shankar Misra & Ors. Vs. The State reported in 1984 Allahabad Law Journal Page 1316 wherein in paragraph 22 it has been held that if an injured witness is not a reliable witness and there is material infirmity or falsity in some part of his evidence it would not be safe to convict the accused solely on his evidence.

17. In the first place both these witnesses (Bhaskar Bhinge and Mahesh Bhinge) are not only enimical witnesses but also categorically deposed to about the participation of co-accused Laxman Shirsat @ Paparkar to whom they assigned the role of assaulting the deceased Kailas with sword, who as seen above could not have participated in the incident. Apart from it we find that they deposed about the presence of a false witness Suresh Sobaji and are enimical witnesses.

We also find that Bhaskar Bhinge in his statement in the trial Court stated that when he had caught hold of acquitted accused Babulal Shah and asked him why he was assaulting Kailas he inflicted a sword blow from the blunt side on his right thigh. When in his cross-examination he was confronted with having omitted saying in his statement under section 161 Cr.P.C. abut the sword blow being inflicted by Babu Shah from the blunt side, all that he replied was that he had so stated and could not attribute any reason as to why the police had not incorporated it in his statement under section 161 Cr.P.C. The said omission has been proved by Police Inspector Dadake. We are not prepared to accept his explanation.

In our view, the said omission was not inoccuous. We find that a deliberate improvement was made by this witness when he stated in the trial Court that the sword blow was inflicted from the blunt side. The said improvement was designed to bring his evidence in conformity with the medical evidence. He was medically examined by Dr. Anil Joshi, who found on his person one contusion and one abrasion transverse situated on the right thigh and right thumb respectively which were caused by a hard and blunt object. It is common knowledge that in the normal course sword would either cause a incised wound or a stab wound, depending on the manner in which it is used. In our view to reconcile the dichotomy between his account as contained in section 161 Cr.P.C. and the medical evidence he made the improvement in his evidence in the trial Court. In this connection it would be pertinent to advert to the decision of the Supreme Court reported in 1996 Criminal Law Journal page 496 (Badri Vs. State of Rajasthan) wherein in paragraph 18 the Supreme Court observed to the following effect.

"If a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony."

We did not think that it would be prudent to accept his testimony.

18. Coming to the evidence of Mahesh Bhinge, in the first place, it is significant to point out in his statement under section 161 of Cr.P.C. Bhaskar Bhinge has made no reference of his son Mahesh Bhinge being injured. When during cross-examination, in para 12, he was confronted with the said omission he stated that he had mentioned to the police that Walchand Shah had inflicted a blow of sword on Mahesh and could give no reason as to why it did not appear in the statement. We are not prepared to believe his explanation. The said omission has been proved by police Inspector Dadake.

It is significant to point out that the injuries found on the person of Mahesh Bhinge are not typical sword injuries (incised wounds or stab wounds) but instead are two contused lacerated wounds situated on the left hand little finger and left hand terminal finger and the said injuries according to Dr. Anil Joshi, who examined them were attributable to a hard and blunt object.

It is pertinent to mention that in paragraph 2 of his statement Mahesh Bhinge did not state that the sword blow was inflicted by Walchand Shah on his person from the blunt side.

In our view prima facie his injuries are not corroborated by medical evidence.

We also find that there was a possibility of him being tutored. In paragraph 10 of his evidence, during the cross-examination, initially he stated that the police asked him to give evidence as per his police statement but later on wriggled out saying that it had not asked him to do so.

All this coupled with the fact that his father Bhaskar Bhinge has made no reference to his being injured in his statement under section 161 Cr. P.C. renders his claim of being assaulted by sword by Walchand Shah and his presence on the place of the incident as suspicious.

19. Apart from all this, we find that Dr. Anil Joshi (P.W. 9) who medically examined Bhaskar Bhinge and Mahesh Bhinge, during his cross-examination in paragraph 20, admitted that the injury certificates of the said persons were issued on 8-5-1995. It should be borne in mind that the incident took place on 19-2-95. The prosecution has not been able to give any plausible explanation for the belated issuance of the medical certificates of the said witnesses.

20. We would be failing in our fairness if we do not refer to the decision of the Supreme Court in the case of Solanki Chimanbhai Ukabhai Vs. State of Gujarat reported in A.I.R. 1983 S.C. 484 cited by Mr. Borulkar, learned Additional Public Prosecutor, wherein in paragraph 12 the Supreme Court has observed that "it is only where the medical evidence completely rules out the possibilities of the injuries being caused in the manner deposed to in the ocular account, the testimony of the eye witness should be thrown out".

We have perused the said decision.

We have reached the conclusion that it would not be safe to place reliance on the testimony of these eye-witnesses not on the only ground that prima facie their injuries were not attributable to swords but also on a large number of other grounds adverted to above. Hence this decision, in our view, would not help Mr. Borulkar.

21. For the said reasons it would not be safe to accept the evidence of Bhaskar Bhinge and Mahesh Bhinge.

22. This brings us to the statement of Dattatraya Kamble (P.W.8). His statement has also to be appreciated in the background of the fact that he is a highly enimical witness and falsely implicated co-accused Laxman Shirsat @ Paparkar to whose presence he has categorically deposed to in the trial Court. He stated in his examination-in-chief that on the date and time of incident in the jeep of the acquitted accused Laxman Shirsat @ Paparkar, the appellants and the acquitted accused came. A perusal of his statement shows that appellants Tulsiram and Dagadu were having swords and the rest were armed with Sattur and axe. He states that Tulsiram and Dagadu assaulted him with swords and, thereafter Rajendra Kothalkar and Anil Mane assaulted him with Sattur. As a result of the said assault he started having a nausea sensation. On hearing his cries Bhaskar Bhinge, who was listening to the news inside the house and his wife came. He became unconscious and thereafter regained his consciousness at about 11 to 11-15 p.m. in Civil Hospital Sholapur.

In our view it would only be safe to accept his statement to the extent to which it is in conformity with his statement recorded by the Executive Magistrate Sharana Basappa Tarapure (D.W. 3). With the said statement he was confronted during the course of his cross-examination and had to admit that therein he had only named Tulsiram Kambale. Dagadu Naikwadi, Rajendra Kothalkar and Anil Mane.

We have pursued the said statement and therein we find that the names of other persons have not been mentioned. Instead what has been mentioned is that apart from the four (4) named above, there were two unknown persons. This mention of unknown persons in his evidence is a new dimension. The other eye-witnesses have not deposed to about participation of unknown persons.

23. Mr. S. R. Borulkar, learned Additional Public Prosecutor urged that while evaluating this statement we have to bear in mind that he had sustained very serious injuries and if in such a situation he named only the four appellants mentioned above and did not take the names of the remaining appellants whom he named in his statement in the trial Court, no capital can be made of by the defence.

Mr. Borulkar also urged that we should bear in mind that the question put to him was "Q. when and how did you sustain injuries on your body" and, therefore, if he only mentioned the names of those who assaulted him heavens would not fall and his evidence in the trial would not be adversely affected.

We have given our anxious thought to the submission of Mr. Borulkar and have also perused his statement recorded by the S.E.M. We find it to be a fairly elaborate statement wherein the above question was not the only question put to him. Another question which was put to him was "whether you wish to state anything more in respect of the aforesaid incident. Whether you suspect anybody in this regard ?" In his answer to the said question he has elaborately spelt out the motive for the assault but has not referred to the participation of accused other than Tulsiram Kambale, Anil Mane, Dagadu Naikwadi and Raja Kothalkar.

To repeat, since he is a highly interested cum enimical witness and has falsely implicated Laxman Shirsat @ Paparkar, in our view, the safe course and indeed the more prudent one would be to accept his substantive statement only to the extent to which it is in conformity with his statement recorded by S.E.M. and since therein he has only mentioned the names of Tulsiram, Dagadu, Anil Mane and Rajendra Kothalkar, we accept his substantive statement only with respect to their participation.

24. We are not impressed with the submission of the learned Counsel for the appellants that even to this limited extent we should not believe his statement because we find that his statement in respect of the said appellants is corroborated by medical evidence in as much as the said persons have been attributed the use of sword and Sattur and Dr. Anil Joshi found injuries of these weapons on his person.

25. The learned Counsel for the appellants also strenuously urged that the F.I.R. was anti timed. They pointed out that the obligation contained in section 157 Cr.P.C. of sending a copy of the F.I.R. forthwith to the Magistrate has not been discharged by the prosecution in the instant case and no explanation for its failure to do so has been forthcoming from the side of the prosecution.

In this connection learned Counsel for the appellants invited our attention to the cross-examination of A.P.I. Vithal Jadhav (P.W. 18). In paragraph 7 he admitted that the F.I.R. was sent to the Magistrate on 22-11-1995 and the distance between the police station and the court of J.M.F.C. is kilometer.

The contention of learned Counsel for the appellants is that in view of the said admission the only inference which can be legitimately drawn is that the F.I.R. had not been lodged at 8.40 p.m. on 19-2-95 as alleged by the prosecution but later on and was shown to be anti-timed. In support of their submission learned Counsel for the appellants invited my attention to the decisions of the Supreme Court reported in (1) A.I.R. 1980 S.C. 638 (Marudanal Augusti Vs. State of Kerala & (2) A.I.R. 1976 S.C. 2423 (Ishwar Singh Vs. State of Uttar Pradesh).

In the former decision the F.I.R. was purported to have been lodged on the midnight of 23/24th June, 1971 but was despatched to the Magistrate at 5.30 a.m. on 25-6-1971 and there was a delay as many as 29 hours in the receipt of the F.I.R. by magistrate. The Investigating Officer was questioned as to why there was delay in sending the copy of the F.I.R. to the Magistrate but as in the present case, could give no explanation whatsoever. The Supreme Court took the view that the delay in sending the copy of F.I.R. to the Magistrate adversely reflected on the prosecution case.

In the latter decision, wherein also like the former decision and our case there were injured witnesses the F.I.R. is purported to have been lodged at 9.05 a.m. on 14th February, 1971 but was sent from the police station the next day and was received by the Magistrate on the morning of 16th February. The Court of the Magistrate was situated nearby. The Supreme Court held that under section 157 of the Cr.P.C. an obligation was cast on the police officer to despatch copy of the F.I.R. forthwith to the Magistrate and in the absence of any explanation for the extraordinary delay in sending copy of the F.I.R. it could be legitimately inferred, as canvassed by Mr. Anthony that the F.I.R. was recorded much later.

26. We would be failing in our fairness, if in this connection, we do not refer to the two decisions cited by Mr. S. R. Borulkar, learned Additional Public Prosecutor to substantiate his submission that delay simplicitor in sending copy of the F.I.R. to the magistrate should not warrant the inference that the F.I.R. was anti timed. The said decisions are (1) 1997 S.C.C. (Cri.) page 1323 (Madru Singh & Ors. Vs. State of Madhya Pradesh) (2) 1996 (8) S.C.C. 552 (Ram Sanjivan Singh & Ors. Vs. State of Bihar).

In the former case as evident from paragraph 7, the F.I.R. is purported to have been lodged on 7th August, 1984 at 6 p.m. but was received by the Magistrate on 10th August, 1984 and no plausible explanation was given by the investigating officer why there was a delay in sending a copy of the F.I.R. to the Magistrate. The Supreme Court held that in the absence of any effective cross-examination which could discredit the claim of the informant that she has lodged the F.I.R. on 7th August, 1994 at 6 a.m. merely because the F.I.R. was received by the Magistrate on 10th August, 1984 inference could not be drawn that it was anti timed.

In the latter case, as is clear from a perusal of paragraph 9 and 10, the F.I.R. was lodged on 24-5-1972 but its copy was sent to the Magistrate on 26th May, 1972 and the submission canvassed was that this delay in sending copy of the F.I.R. shows that it was anti timed. Repelling the submission, the Supreme Court observed that there were positive checks by way of contemporaneous record indicating that the F.I.R. must have been recorded by 7 p.m. on 24-5-72 as alleged by the prosecution.

Mr. S.R. Borulkar pointed out that in the instant case also there are positive checks in the form of inquest panchanama of corpse of both the deceased persons which were prepared the same night and wherein the section and the names of the accused are mentioned to show that the F.I.R. was lodged that very night at 8-40 p.m. as alleged by the prosecution.

27. We have considered the submission of Mr. Borulkar and the authorities cited by him. In all fairness it should be pointed out that although defence suggested to A.P.I. Vatke (P.W. 18) who recorded F.I.R. and performed the inquest on the corpse of the two deceased persons that the inquest panchanamas were not conducted at the time purported by the prosecution but at 5.30 a.m. on 20-2-1995, the defence has not been able to point out any intrinsic material which would probabilise the performing of the two inquest panchanamas at the time alleged by it.

28. Having considered all the four authorities of the Supreme Court referred to above and bearing in mind that in two authorities cited by Mr. Borulkar it is no where mentioned by the Supreme Court that the ratio laid down in the earlier two authorities is bad it would be hazardous to accept that the said two authorities have in substance been overruled, as was sought to be contended by Mr. Borulkar. In our view what can be said is that before in a given case an inference is drawn that the F.I.R. was ante-timed some circumstances have to be shown either from cross-examination of the relevant witnesses or from material appearing on record which would probabilise the anti-timing of the F.I.R.

28A. But we hasten to add that Section 157 Cr.P.C. casts an obligatory duty on the police to forthwith send a copy of the F.I.R. to the Magistrate and whenever the Police fail to discharge this mandatory duty it is under a legal obligation to furnish the reasons for not discharging it.

29. The aforesaid discussion would show that out of the five eye-witnesses, it would only be safe to accept the evidence of Dattatraya Kamble P.W. 8 to the extent it is corroborated by his statement recorded by the S.E.M. And since, the said corroboration is only in respect of participation of appellants Tulsiram Kamble, Dagadu Naikawadi, Anil Mane and Rajendra Kothalkar, it would only be prudent to convict them. Rest of the appellants would have to be given the benefit of doubt.

In the statement of Dattatraya Kamble the allegation against the said appellants is that they entered inside his house; assaulted him with sword and Sattur on vital parts of his body; and thereafter he became unconscious and regained his consciousness in Civil Hospital Sholapur where the S.E.M. recorded his statement.

It is significant to point out that in his substantive statement Dattatraya has not referred to the assault on the two deceased persons, Bhaskar Bhinge and Mahesh Bhinge. In view of his statement, on the first blush, we felt that offences under section 307/34 and 452/34 I.P.C. would be made out.

But Mr. S.R. Borulkar, learned Additional Public Prosecutor pointed out that inasmuch as for the assault on Dattatraya Kambale the said appellants alongwith others were charged under section 307 r/w 149 I.P.C. and they have been acquitted on the said count and the State of Maharashtra has not preferred an appeal against their acquittal on the said count it would not be permissible for us to do so. We find merit in Mr. Borulkar's submission and accept it. Hence in our view only an offence under section 452 r/w 34 I.P.C. would be made out against the said appellants.

30. We do not find any merit in the contention of the learned Counsel for the appellants that since the said appellants were not charged for the offence under section 452 r/w 34 I.P.C. they cannot be convicted on the said count. From a perusal of the charge we find that they were charged for the offence under section 452/149 I.P.C. and it is clear from a perusal of paragraph 9 of the decision of the Supreme Court reported in A.I.R. 1958 S.C. page 672 that when a charge is framed with the aid of Section 149 I.P.C. there is no impediment to convict with the aid of Section 34 I.P.C. Para 9 of the said decision reads thus :-

"9. The omission to mention S. 34 of the Indian Penal Code in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof. The charge was that the appellants and others were members of an unlawful assembly, the common object of which was to murder the deceased. Although there is a difference in common object and common intention, they both deal "with combination of persons who become punishable as shares in an offence" and a charge under S. 149, Indian Penal Code is no impediment to a conviction by the application of S. 34 if the evidence discloses the commission of the offence in furtherance of the common intention of all."

31. The question which remains is what sentence should be awarded to the said appellants for the offence under section 452 r/w 34 I.P.C.

So far as the Appellant Anil Dhondiram Mane is concerned, we find that he is in jail since 16th of March, 1995 meaning thereby he has served slightly over four years. Since the trial Court had sentenced him to undergo three years R.I. u/s. 452 r/w 149 I.P.C. his sentence has to be reduced to the period already undergone.

Appellants Tulsiram Bhanudas Kambale, Dagadu Shankar Naikwadi and Rajendra Dashrath Kothalkar have been in jail for about 13 months, 12 months and 8 months respectively. In our view it would be appropriate to reduce their substantive sentence to the period already undergone by them provided each one of them deposit within a period of six months from today a fine of Rs. 10,000/- failing which the defaulting appellant/appellants as the case may be would undergo a sentence of two years R.I.

32. In the result :

(A) Criminal Appeal No. 32/96 is partly allowed. Appellants Ramchandra Bhanudas Kambale, Ashok Sahabrao Waghmare, Dnyaneshwar Shankar Naikwadi, Santosh Dashrath Kothalkar and Sunil Dhondiram Mane are acquitted on all the counts. In case they are in jail they shall be released forthwith unless wanted in some other case.

Appellants Tulsiram Bhanudas Kambale and Anil Dhondiram Mane are acquitted for the offence under section 302 r/w 149 I.P.C. and their sentence of life imprisonment on the said count is set aside.

Appellants Tulsiram Bhanudas Kambale, Anil Dhondiram Mane and Rajendra Dashrath Kothalkar are acquitted for the offence punishable under section 324 r/w 149 I.P.C. and their sentence of 2 years R.I. is set aside.

The conviction of Appellants Tulsiram Bhanudas Kambale, Dagadu Shankar Naikwadi, Anil Dhondiram Mane and Rajendra Dashrath Kothalkar is altered from Section 452 r/w 149 I.P.C. to one under section 452 r/w 34 I.P.C.

Since Appellant Anil Dhondiram Mane is in jail since 16th March, 1995, his sentence is reduced to the period already undergone on the said count.

Since appellants Tulsiram Bhanudas Kambale, Dagadu Shankar Naikwadi and Rajendra Dashrath Kothalkar have been in jail for about 13 months. 12 months and 8 months respectively, their sentence under the said count is reduced to the period already undergone provided each one of them deposit within a period of six months from today, a fine of Rs. 10,000/- in the trial Court failing which the defaulting appellants/appellant, as the case may be, would undergo one year and nine months R.I.

The appellant Anil Dhondiram Mane is in jail and shall be released forthwith unless wanted in some other case.

The appellants Tulsiram Bhanudas Kambale, Dagadu Shankar Naikwadi and Rajendra Dashrath Kothalkar are on bail. In case they deposit the fine within stipulated time they need not surrender and their bail bonds will stand cancelled and sureties discharged. If not they shall be taken into custody to serve out the sentence in default of payment of fine.

(B) Criminal Appeal No. 71/96 is allowed. The conviction of the appellant Ganesh Kisan Shirsat @ Paparkar on both the counts namely 302 r/w 149 I.P.C. and 452 r/w 149 I.P.C. is set aside. He is in jail and shall be released forthwith unless wanted in some other case;

(C) Criminal Appeal No. 83/96 is allowed. The conviction of the appellant Dhanaji Dashrath Kothalkar for the offence under section 452 r/w 149 is set aside. He is on bail. His bail bonds shall stand cancelled and sureties discharged.

It would be open to the trial Court to accept the fine on production of a certified copy of our judgment.

Issue of certified copy expedited.

Appeal partly allowed