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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1118 of 2014

SUDARSHAN & ANR. .....APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The two appellants  

herein  are  aggrieved  by  the  judgment  of  the  High  Court  

pronounced  on  July  27,  2011,  whereby  their  conviction  under  

Section 302 read with Section 34 of the Indian Penal Code, 1860  

(for short, ‘IPC’), as recorded by the Magistrate, has been upheld  

and their sentence to undergo life imprisonment with fine is also  

confirmed thereby.

2)The prosecution case, on the basis of which the appellants along with  

eleven other persons were charged for committing offences of different  

nature, is stated by the High Court in para 5 of the impugned judgment.  

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There is no dispute that the prosecution version, as recorded therein,  

suffers from any inaccuracies.  Therefore, in order to have a glimpse of  

the prosecution case, we would take the facts as narrated in para 5 of  

the impugned judgment:

3)The  complainant,  appellants  and  other  accused  persons  are  

residents of Chandrapur.  Complainant – Manoj Bhaskar Ugade knew  

both the appellants.  The incident had occurred on November 17, 2002.  

The  complainant  had  bought  new  motorcycle  and  with  a  view  to  

celebrate  the  occasion,  he  had  arranged  a  party  at  Junona  in  

Ballarshah Tehsil.  Junona is a forest place and it appears that there is  

some  Holiday  Resort  also.   It  is  a  picnic  place  which  is  normally  

crowded  to  some  extent  on  holidays.   The  said  party  arranged  by  

Manoj was attended by his friends, including the two deceased, Vinod  

Channewar and Chandu Prakash Dongre.   In  addition to the above  

deceased,  the  said  party  was  attended  by  Golu  Ramteke,  Jivan  

Mahadole,  Anil  Tajne,  Sahilesh  Gujarkar,  Dilip  Pradhan,  Shankar  

Thakre, Vinod Shende, Santosh Kashti and Bahadur Hajare.  The food  

was to be prepared on the spot.  Therefore, raw material was taken to  

the spot  of  party  in a Maruti  van.  The complainant  and his  friends  

reached  the  spot  at  about  12.00  noon  and  they  started  preparing  

meals.  Since meals were not ready, the deceased had gone little away  

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from the place of party to buy  Gutka.  They returned to the spot at  

about  12.30 p.m.   The meals were still  not ready.  They, therefore,  

started  playing  cards  at  some  distance  from  the  place  where  the  

complainant was preparing roties.  While the complainant was busy in  

his work, suddenly 8 to 10 persons reached the spot.  The deceased,  

Vinod and Chandu, started running after witnessing them.  However,  

the said 8 to 10 persons followed the deceased.  The two appellants  

before us were holding swords.  It is alleged that both of them started  

assaulting deceased Vinod with the swords in their hands, while rest of  

the persons followed Chandu.   The complainant could not see as to  

what happened to Chandu.  However, after the culprits fled away, it was  

seen by the complainant that there were severe injuries on the head of  

deceased Vinod.  His brain material had come out.  Obviously he was  

dead.   Deceased Chandu was found at some distance in the same  

condition.   The  complainant,  therefore,  threw  away  all  the  eating  

material and immediately rushed to the brother of Bahadur Hajare.  It  

may be stated that Bahadur Hajare was one of the persons who had  

attended the party.  Thereafter, the complainant along with his friends  

had gone to the house of Advocate Rangari at Chandrapur to take his  

advice  as  to  what  they  should  do  further  in  the  matter.   Advocate  

Rangari advised him to report the matter to the police.  The matter was  

reported to City Police Station, Chandrapur.  They had registered an  

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offence vide Crime No. 00/02 under Section 302 read with Section 34  

of IPC and Section 4 read with Section 25 of the Arms Act against the  

appellants and others.  Since the place of incident was not within the  

jurisdiction of  City Police Station,  intimation was given to Ballarshah  

Police Station regarding the incident.   Upon receiving the intimation,  

Ballarshah  Police  Station  registered  FIR  No.  220  of  2002  and  

investigation was taken up by P.I. Mr. Kshirsagar, who visited the spot.  

Two of the witnesses were called, who had indentified the bodies lying  

on the spot.   Inquest was done on the spot.   Both the bodies were  

referred to General Hospital, Chandrapur for post-mortem examination.  

Rest of the  panchnama was drawn on the next day as it  was dark.  

During the course of investigation, it was revealed that one motorcycle  

was used by the appellants, which belonged to one Amarpur.  The said  

motorcycle was also seized.  Other accused were arrested from time to  

time during the course of  investigation.   Weapons and clothes were  

also seized and after completion of investigation chargesheet was filed  

in  the  court  of  Magistrate.   It  appears  that  during  the  course  of  

investigation,  provisions  of  the  Maharashtra  Control  of  Organised  

Crime  Act,  1999  (hereinafter  referred  to  as  'MCOC Act')  were  also  

applied  and  further  investigation  was  carried  out  by  the  Deputy  

Superintendent of Police, Mr. Sardeshpande.  However, since Inspector  

General of Police rejected the proposal for prosecuting the appellants  

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and  others  in  MCOC  Act,  the  accused  were  tried  by  the  ad-hoc  

Additional Sessions Judge at Chandrapur.

4)The appellants herein were the main accused persons and described  

as Accused No.1 and Accused No.2 (A-1 and A-2).  In fact, A-1 to A-8  

were charged under Section 302 as well as Sections 147 and 148 read  

with Section 149 of the IPC.  A-9 to A-11 were charged under Section  

212  of  the  IPC,  whereas  A-12  and  A-13  were  charged  only  under  

Section  120-B  of  the  IPC.   Prosecution  examined  22  witnesses  in  

support of its case.  There was no dispute about the cause of death of  

the  two  persons,  namely,  Vinod  Channewar  and  Chandu  Prakash  

Dongre.  As per the post-mortem report, the two had suffered multiple  

head injuries and these injuries led to their death.

5)The trial  court,  on the basis of  the testimonies of  the prosecution  

witnesses as well as documents produced before it, found A-1 and A-2  

(the appellants herein) guilty of the offence punishable under Section  

302 read with Section 34 of IPC.  They were acquitted of charges under  

Sections 147, 148 and 149 of IPC.  A-3 to A-8 were held not guilty.   

Likewise, it was held that no case under Section 212 of the IPC was  

made out against A-9 to A-11.  The trial court also discarded the theory  

of conspiracy allegedly hatched by the accused persons to murder the  

deceased  persons,  thereby  acquitting  A-12  and  A-13  of  the  charge  

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under Section 120-B of IPC (strangely even it was alleged that all the   

accused persons had conspired together to kill the deceased persons,   

the charge under this Section was framed only qua A-12 and A-13).  

Since only the appellants were held guilty of murdering the deceased  

with common intention and given life imprisonment by the trial court,  

these two appellants challenged the said verdict by approaching the  

High Court of Judicature at Bombay (Nagpur Bench).

6)The High Court, on re-appreciation of evidence, held that it could not  

be proved as to who killed Chandu Prakash Dongre.   However,  the  

finding of the Sessions Judge holding the appellants guilty of murdering  

Vinod Channewar is affirmed.  Thus, even when these appellants are  

acquitted of the charge of murdering Chandu Prakash Dongre, the final  

result remains the same, i.e. Dismissal of their appeal on finding them  

guilty of committing the murder of Vinod Channewar.

This is how the two appellants are before this Court.

7)Mr.  Sushil  Kumar,  learned  senior  counsel  appearing  for  the  

appellants,  submitted that  the trial  court,  or  for  that  matter  the High  

Court, could not see through and appreciate the glaring infirmities and  

loopholes in the prosecution case.  He submitted that the foundational  

facts  injected  by  the  prosecution  provide  unhelpful  ambiguity  which  

manifest hollowness of the prosecution case and a vivid look thereof  

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was sufficient to discard the prosecution story implicating the appellants  

in the entire episode.  He pointed out those aspects which we shall  

refer hereinafter.  He also pointed out that a reading of the judgment of  

the High Court would demonstrate that the High Court has indulged into  

the  guesswork  and  became  too  presumptuous  in  drawing  certain  

inferences,  without  any material  on  record.   He  also  submitted that  

most of the arguments raised by the appellants before the High Court  

are either glossed over or dealt with casually and/or in a perfunctory  

manner,  which  is  against  all  cannons  of  criminal  jurisprudence  that  

mandates guilt to be proved beyond reasonable doubt.

8)Neat submission of Mr. Sushil Kumar, in this behalf, was that the FIR  

itself was ante-timed with sole intention to rope in the appellants.  He  

also argued that the conduct of the complainant to go to the house of  

Advocate Rangari at Chandrapur after the incident, instead of heading  

to  the  Police  Station  to  report  the  incident,  depicted  an  abnormal  

behaviour  which  was  enough  to  ring  alarm  on  the  genuineness  of  

prosecution story.  However, it  has been brushed aside by the High  

Court.  Mr. Kumar had also pointed out that on the purported advice of  

the said  Advocate,  FIR was lodged with  Police  Station Chandrapur,  

which was not the concerned Police Station within whose jurisdiction  

the  incident  had  occurred.   The  concerned  Police  Station  was  

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Ballarshah  Police  Station.   He  submitted  that  no  doubt,  the  Police  

Officer  who registered  the  FIR at  Chandrapur  called  the  concerned  

officer from Ballarshah Police Station, who took over the matter and  

conducted the inquest proceedings, the entire sequence was shrouded  

in mystery and the FIR was ante-timed, which could be inferred from  

other various circumstances.

9)We find sufficient  merit  in  the aforesaid submissions of  Mr.  Sushil  

Kumar  and  are  convinced  about  the  unnatural  behaviour  of  the  

complainant in approaching Advocate Rangari and lodging the FIR at  

Chandrapur and also convinced that FIR appears to be ante-timed.  As  

discussed  in  detail  hereinafter,  according  to  us,  these  facts  are  

sufficient to hold that the appellants may have been roped in falsely at  

a  later  point  of  time,  which entitles them to be given the benefit  of  

doubt.   

10)We now proceed to discuss these circumstances and our reasons  

hereinafter.

11)As  noticed,  while  stating  the  case  of  the  prosecution,  the  

complainant, along with his friends, had gone to Junona in Ballarshah  

Tehsil,  where  a  party  was  arranged  by  him  to  celebrate  his  new  

acquisition in the form of a motorcycle.  There were many friends of his  

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along with him.  They had decided to prepare the food on the spot, for  

which they took raw material with them in a Maruti van.  Though the  

complainant  and his  friends had reached that  place at  about  12.00  

noon and had started preparing meals,  as far  as the two deceased  

persons  are  concerned,  they  had  reached  later.   Awaiting  the  

preparation of meals, they had started playing cards at some distance.  

It  is  at  that  time,  8  to  10  persons  reached  the  spot.   As  per  the  

prosecution, the two appellants were holding swords and chased Vinod  

Channewar and started assaulting him, while the other accused had  

followed  Chandu  Prakash  Dongre.   After  the  incident,  as  per  the  

prosecution, the complainant threw away all the eating materials and  

immediately rushed to the brother of  Bahadur Hajare, who had also  

attended the party.  Thereafter, the complainant and his friends went to  

the house of Advocate Rangari at Chandrapur.   

12)During the arguments, we were informed that Chandrapur, where  

Rangari lived and these persons went, is about 15 kms.  It appears to  

be a very strange behaviour  on the part  of  the complainant  and so  

many of his friends who were with him to go to an Advocate, that too 15  

kms.  away,  rather  than approaching the Police  Station to report  the  

matter.   The High Court has downplayed this unusual and abnormal  

conducts in a cavaliar manner by observing that the complainant and  

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his friends were so scared that they had no sense of stopping at the  

Police Station and, therefore, they had straightaway gone to the house  

of the said Advocate.  This aspect is dealt with by the High Court in the  

following manner:

“21…However, it may be stated here that it is possible  that  some  other  persons  could  have  behaved  in  a  different manner than P.W. Nos. 1 and 3 have behaved.  Reaction  of  witnesses  to  a  particular  incident  is  not  necessarily similar.  It depends upon the nature of the  incident, place of incident and the nature of the witness  himself.   In  the  present  case  it  appears  that,  in  all  probabilities, P.W. 1 and his friends had carried some  liquor also with them.  Though there is no evidence to  that effect,  the possibility of their  carrying liquor could  not be ruled out,  considering the fact  that on most of  such occasions, liquor has become an integral part of  the celebrations.  This view is taken by us because P.W.  1 had thrown away all the material before going to the  Police.   He had not  given  description  of  the  material  thrown  away  by  him.   Therefore,  possibility  of  they  carrying liquor also could not be ruled out.  The learned  counsel  for  the  appellants  wanted  to  capitalize  this  situation also.  We, however, are not inclined to accept  the argument that P.W. 1 and others had taken drinks to  a  large  extent  and  there  was  a  quarrel  between  members of the same group.  Possibility of P.W. 1 and  others drinking liquor is not ruled out.  At the same time,  it  can  be  said  that  since  they  might  have  consumed  liquor  they  were  afraid  of  approaching  the  police  immediately.   This  does  not  make  any  plus  point  in  favour of the appellants.”

13)No  doubt,  different  persons  may  react  differently  to  the  same  

situation.  However, at the same time, as mentioned above, it appears  

very improbable that when there were as many as 15 to 20 persons,  

namely, the complainant and his friends, none of them even thought of  

going to the Police Station to report the matter, which is odd and out of   

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ordinary behaviour  in  such cases.   Instead,  they chose to go to an  

Advocate, who was staying at a distance of 15 kms.  The persons who  

were allegedly very scared would not take the risk of going a distance  

of 15 kms. rather than approaching the nearby Police Station within the  

jurisdiction of the area where the incident had taken place.   

14)Strangely,  in  the  process  of  defending  the  said  conduct  of  the  

complainant and his friends, the High Court became presumptuous as  

it itself gave an imaginary story that there was a possibility that these  

persons had consumed liquor and the material thrown by them included  

liquor as well.  It was not even the case of the prosecution, probable or  

otherwise.

15)We may have agreed with the High Court that not reporting to the  

Police  and  going  straightaway  to  an  Advocate  could  have  been  

because of the reason that all these persons were very scared, had it  

been  a  standalone  fact.   However,  when  this  fact  is  examined  in  

conjunction with other circumstances, which we narrate hereinafter, we  

find that approaching an Advocate instead of going to the Police Station  

to report the matter, was not that innocent a step as the prosecution  

has made us to believe.

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16)Even after meeting their Advocate and his advise that the matter be  

reported to the police, these persons didn't come back to Ballarshah  

Police Station, which was the proper Police Station for this purpose.  

Instead, the FIR was lodged in Chandrapur Police Station.  Things do  

not end here.  Mr. Umesh, Sub-Inspector, was at Chandrapur Police  

Station, who had recorded the FIR.  He has appeared as PW-12 during  

trial.   The FIR which was lodged with him is proved as Exhibit-213.  

Column 15 of  the FIR pertains to  ‘date and time of  dispatch to the   

Court’.  This column is left blank, which means that no date and time of  

the dispatch/delivery of this FIR to the concerned Court is mentioned.  

In  the  cross-examination,  PW-12  was  specifically  asked  about  the  

requirement  of  submitting  a  copy  of  the  FIR  to  the  concerned  

Magistrate within 24 hours.  He replied in the affirmative insofar as this  

need is  concerned.   However,  at  the  same time,  he was candid  in  

admitting that he was unable to say as to by whom and when the copy  

of Exhibit-213 was sent to the Magistrate.  A specific suggestion was  

put  to  him that  the copy of  the FIR was not  sent  to  the concerned  

Magistrate.  Though he denied, but thereafter no attempt was made to  

prove  as  to  when  and  how  the  copy  was  sent.   The  necessity  of  

sending the copy of the FIR to the concerned Magistrate hardly needs  

to  be  emphasized.   The  primary  purpose  is  to  ensure  that  truthful  

version  is  recorded  in  the  FIR  and  there  is  no  manipulation  or  

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interpolation  therein  afterwards.   For  this  reason,  this  statutory  

requirement  is  provided under  Section  157 of  the  Code of  Criminal  

Procedure, 1973.

17)We,  thus,  feel  that  it  was  a  glaring  omission  on  the  part  of  the  

prosecution which lends credence to  the plea of  the defence about  

ante-timing the FIR.  It gets strengthened on finding more glaring and  

intriguing  events  taking  place  thereafter,  which  are  described  

hereinafter.

18)Mr. Dilip, who was attached to the Chandrapur Police Station, sitting  

as  PSO  on  that  day,  was  produced  as  PW-21.   He  stated  in  his  

deposition that he was informed by PSI Sayyad about the incident and,  

accordingly, he recorded the report as per the say of the complainant,  

which  he  proved as  Exhibit-114.   After  recording  the  statement,  he  

reached the spot of incident and by that time PSO of the Ballarshah  

Police Station had also reached the spot.  Curiously, this witness did  

not even disclose the names of the accused persons to P.I. Kshirsagar,  

who had come from Ballarshah Police Station.  This is what he said in  

the cross-examination:

“2)…I had not disclosed names of accused persons to  P.I. Kshirsagar on the spot.  I can not assign any reason  as to why I had not disclosed the names of accused to  P.I.  Kshirsagar  though  I  was  knowning  the  names  of  accused.  It is not true to say that at that time I was not  knowing  the  names  of  the  assailants  and  therefore  I  

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have not given that information to P.I. Kshirsagar.  It is  not true to say that the portion in front of entry No. 38  and 39 of the station diary was kept blank as per the  direction of Superintendent of Police.  It is not true to  say that thereafter on the next day I have filled these  entries.   It  is  not  true  to  say  that  thereafter  I  have  prepared forged report.  It is not true to say that I have  not sent the report and printed F.I.R. to P.S. Ballarpur on  the day of  incident  at  about  4.45 p.m.  on the day of  incident…”

19)This is even accepted by the Investigating Officer Mr. Jiwan from  

Police Station Ballarshah, who had reached the spot, in the following  

words:

“19…P.I. Tidke had been to the spot of incident when I  was  drawing  inquest  panchanama.   Jiwan  Mahadole  and Bahadur Hazare had been to the spot before arrival  of P.I. Tidke.  I can not say as to whether Manoj Ughade  had also reached the spot or not.  It did not happen that  Manoj Ughade had identified one dead body.  It is true  to say that P.I. Tidke had not disclosed me the names of  the assailants.  It is true to say that the witnesses Jiwan  Mahadole and Bahadur Hazare had not disclosed me  the names of assailants on the spot.  It is not true to say  tha Manoj Ughade was also present on the spot but he  had  not  disclosed  me  the  names  of  the  assailants.  Article C and D about the report to be forwarded to the  Civil  Surgeon  with  dead  bodies  sent  for  post-mortem  examination now shown to me are bear my signature.  Their  contents  are  correct.   They  are  Exhs.  278 and  279.  I did not received the case diary on that day up to  8.00  p.m.   I  was  on  the  spot  up  to  about  9.30  p.m.  Thereafter I visited Chandrapur City P.S.  It is true to say  that on the day of incident I was not knowing the names  of assailants till 8.00 p.m. and therefore in the document  prepared by the time I  have mentioned the names of  assailants as unknown persons.”

20)It, thus, becomes apparent from the aforesaid that though as per the  

FIR, names of the assailants, i.e. the appellants herein, were stated to  

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PW-12 or PW-21, but PW-21 did not disclose these names to PW-22,  

who is the Investigating Officer.  In the inquest report prepared by PW-

22, no names are mentioned even when the complainant and two or  

three friends of his were present on the spot.  All these factors throw  

suspicion about the recording of the FIR at the time stipulated in the  

FIR.  There are circumstances galore which indicate that the FIR was  

ante-timed and the names of these two appellants were incorporated  

later but showing them to be at the time when the statement was made  

by the complainant on the basis of which the FIR was registered.

21)At this juncture, we would like to point out that there were a number  

of  persons, almost 100.  The Police did not  make any effort  to join  

independent persons in the investigation.  The entry to Junona, which  

is a jungle area, is by tickets.  However, no efforts were made to take  

the connecting evidence of this nature.

22)In  the  aforesaid  scenario,  we  find  that  the  present  case  is  fully  

covered by the judgment of this Court in  Meharaj Singh  v. State of  

Uttar Pradesh, (1994) 5 SCC 188, where the importance of recording  

of  FIR  and  the  requirement  of  dispatching  the  copy  thereof  to  the  

Magistrate within 24 hours with the consequences frought with danger  

was highlighted in the following manner:

“12. FIR in a criminal case and particularly in a murder  case is a vital  and valuable piece of evidence for the  

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purpose of appreciating the evidence led at the trial. The  object of insisting upon prompt lodging of the FIR is to  obtain  the  earliest  information  regarding  the  circumstance  in  which  the  crime  was  committed,  including the names of the actual culprits and the parts  played by them, the weapons, if any, used, as also the  names of the eyewitnesses, if any. Delay in lodging the  FIR often results in embellishment, which is a creature  of an afterthought. On account of delay, the FIR not only  gets bereft of the advantage of spontaneity, danger also  creeps in of  the introduction of  a  coloured version or  exaggerated story. With a view to determine whether the  FIR was lodged at the time it is alleged to have been  recorded, the courts generally look for certain external  checks. One of the checks is the receipt of the copy of  the FIR, called a special report in a murder case, by the  local  Magistrate.  If  this  report  is  received  by  the  Magistrate late it can give rise to an inference that the  FIR was not lodged at the time it is alleged to have been  recorded, unless, of course the prosecution can offer a  satisfactory explanation for the delay in despatching or  receipt of the copy of the FIR by the local Magistrate.  Prosecution has led no evidence at all in this behalf. The  second external check equally important is the sending  of the copy of the FIR along with the dead body and its  reference in the inquest report. Even though the inquest  report, prepared under Section 174 CrPC, is aimed at  serving  a  statutory  function,  to  lend  credence  to  the  prosecution case, the details of the FIR and the gist of  statements  recorded  during  inquest  proceedings  get  reflected in the report. The absence of those details is  indicative of the fact that the prosecution story was still  in an embryo state and had not been given any shape  and that the FIR came to be recorded later on after due  deliberations and consultations and was then ante-timed  to give it  the colour of  a promptly  lodged FIR. In our  opinion, on account of the infirmities as noticed above,  the FIR has lost its value and authenticity and it appears  to us that the same has been ante-timed and had not  been recorded till the inquest proceedings were over at  the spot by PW 8.”

Neither  the  

trial  court  nor  the  High  Court  has  appreciated  the  aforesaid  

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circumstances  which  go  to  the  root  of  the  matter  and  raise  

sufficient doubt about the involvements of the appellants in the  

present case.   

23)We are, therefore, of the opinion that the appellants are entitled to  

the benefit of doubt and the case against them is not proved beyond  

reasonable doubt so as to uphold their conviction into a serious charge  

of murder under Section 302 read with Section 34 of IPC.

24)The  appeal  is,  accordingly,  allowed  and  the  conviction  of  the  

appellants under the aforesaid provisions is set aside.  The appellants,  

who are in custody, shall be released forthwith, if not required in any  

other case.  

.............................................J. (Dr. B.S. Chauhan)

.............................................J. (A.K. Sikri)

New Delhi; May 23, 2014.

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