Holding

The Supreme Court held that the trial court erred in rejecting the eye‑witness evidence, that the FIR was valid, and that the prosecution proved beyond reasonable doubt the participation of A‑2, A‑3 and A‑12 in a murderous common object, warranting conviction under s.302 read with s.149, while the remaining accused were liable only under s.148 and s.326 read with s.149.

Summary

In Phunde village, Maharashtra, a clash between rival political factions (PWP and Congress‑I) on the night of 2‑3 April 1988 resulted in the murder of Suresh Atmaram Gharat and injuries to several others. Nineteen accused were charged under IPC sections 147, 148, 302 read with 149, 307 and 326 read with 149. The trial court acquitted all, but the Bombay High Court convicted eight of them, sentencing three to life imprisonment under s.302/149 and the rest to imprisonment for offences under s.148 and s.326/149. On appeal, the Supreme Court held that the trial court’s dismissal of eye‑witness testimony was erroneous, that the FIR was valid despite alleged procedural lapses, and that the witnesses, though partisan, were credible and corroborated by medical evidence. Consequently, the Court upheld the convictions of A‑2, A‑3 and A‑12 under s.302/149, set aside the s.302/149 convictions of A‑4, A‑5, A‑6, A‑10 and A‑11, and affirmed the convictions under s.148 and s.326/149, modifying the latter sentence to three years’ imprisonment.

Issues considered

The trial court’s assessment of eye‑witness testimony and whether it warranted acquittal.
The validity of the FIR and the effect of alleged delay and procedural infirmities.
The admissibility and reliability of partisan/interest‑based witnesses in a factional clash.
The proper identification of the common object of the unlawful assembly under s.149 IPC – murder versus grievous hurt.
The sufficiency of the alibi pleaded by A‑2.
The appropriate sentencing for offences under s.326 read with s.149.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 156, s. 157, s. 162, s. 169, s. 170, s. 173
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 326

Subjects

political rivalryunlawful assemblymurdereye‑witness testimonyFirst Information ReportSection 149 IPCSection 302 IPCSection 326 IPCalibi defencepartisan witnessesrule of caution

Judgment

[2009] 15 (ADDL.) S.C.R. 58

A PANDURANG CHANDRAKANT MHATRE & ORS.
v.
STATE OF MAHARASHTRA
\
-
(Criminal Appeal No. 986 of 2007)
.. ~ ... ~,;,·· .
,;' "'"
OCTOBER 8, 2009
B
[D.K. JAIN AND R.M. LODHA, JJ.]

Penal Code, 1860 - ss. 3021149, 3261149 and 148 -
Conviction under - Rivalry between two political factions -
c Accused armed with deadly weapons forming unlawful
assembly - Murderous attack on one and injuries to other
members - Acquittal by trial court - High Court upholding ......
acquittal of five accused and convicting eight accused u/s.
3021149, 3261149, 148 and imposed imprisonment for life and
)-
D . different period of sentence - On appeal, held: Order of trial
court was erroneous - FIR not affected by legal infirmity -
Evidence of eye-witnesses corroborated by medical evidence
in respect of deceased as well as injuries sustained by them
- Proved beyond doubt that eight accused guilty of offences
E punishable uls. 148 ands. 3261149 - Plea of alibi not proved
- Thus, conviction and sentence awarded by High Court
against A-2, A-3 and A-12 upheld - Conviction of A-4, A-5, ·
.\---
A-6, A-10 and A-11 u/s.148 and 3261149 upheld but that u/
s.3021149 set aside - Sentence uls. 148 upheld and that u/s. ,,
, F 3261149 modified.
Two political parties were on inimical terms. On the
fateful day workers of rival party armed with deadly
weapons assaulted SA, PW-2, PW-4, PW-5, PW-6, PW-7,
PW-8 and PW-10-members of other party. SA sustained
G · serious injuries and later succumbed to his injuries. Other
witnesses sustained injuries. Nineteen persons were tried
for offences ulss .. 147, 148, 3021149, 302134, 3071149 and
s. 3261149 IPC. Trial court acquitted the appellants. High

H 58
.
PANDURANG CHANDRAKANT MHATRE & ORS. v. 59
STATE OF MAHARASHTRA
f Court upheld the acquittal of five accused and convicted A
eight accused u/ss.302/149, 326/149 and s.148 IPC and
imposed sentence of imprisonment for life and different
period of sentence under other counts along with fine.
Hence the present appeal.
B
Partly allowing the appeal, the Court
"'·
~
HELD: 1. The whole approach of the trial court in
-~
consideration of the evidence of eye-witnesses was
faulty and flawed. The evidence is independently
examined and it is found that the judgment of the trial c

- court acquitting all the accused persons suffered from
factual and legal errors justifying interference by the High
· Court in appeal within permissible limits. Thus, the
conviction of A-2, A-3 and A-12 for the offence punishable
-"" under section 302 read with section 149 IPC and the D
sentence awarded to them by the High Court to suffer
imprisonment for life is maintained. The conviction of A-
4, A-5, A-6, A-1 O and A-11 for the offence punishable
under section 302 read with s.149 IPC is set aside. The
conviction of the appellants under section 148 and E
section 326 read with section 149 IPC is upheld. The
sentence awarded to them under section 148 IPC is
maintained. However, substantive sentence for the
offence punishable under section 326 read with section
149 IPC is modified and each one of them is sentenced F
to suffer RI for three years. The substantive sentences
shall run concurrently. [Paras 65 and 66] [101-F-H; 102-
A-8]

2.1. First Information Report is not a substantive
piece of evidence and it can be used only to discredit the G
testimony of the maker thereof and it cannot be utilized
for contradicting or discrediting the testimony of other
witnesses. First Information Report cannot be used with
regard. to the testimony of other witnesses who depose
H
60 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A in respect of incident. The earliest information in regard
to commission of a cognizable offence is to be treated "
as First Information Report. It sets the criminal law in
motion and the investigation commences on that basis.
Although FIR is not expected to be encyclopedia of
8 events but_ an information to the police to be 'first
information report' u/s.154(1) Cr.P.C. must contain some
essential and relevant details of the incident. A cryptic -"
1
information about commission of a cognizable offence ~
irrespective of the nature and details of such information
c may not be treated as FIR. [Para 29]

2.2. In the instant case, PW-5 reached the police
,11"-
station at about 4.00-4.15 a.m. He gave information that
several persons were assaulting members of their party;
that the accused were armed with deadly weapons and
D that police should immediately leave for the place of ~

occurrence. This information was entered in General
Diary of the police station. Based on this information, PW-
18-10 left for the place of occurrence alongwith PW-2 who
had also reached the police station by that time. In an
E incident where large number of accused are involved in
assaulting rival village folk, obviously the first task of the
Police Officer is to ensure visit to the scene of occurrence .\-
and provide police help, if necessary. Rather, it would
have been unnatural on the part of PW-18 to have insisted
F on taking down the entire incident by way of FIR when
PW-5 reached the Police Station at about 4.00-4.15 A.M.
for getting help for the victims. The immediate task for
PW-18 was to focus on providing help to the victims who,
as per the version of PW-5, were still being attacked. In
G such a situation, it cannot be said that the moment PW-
18 left the police station, _the investigation had !--
commenced. In the circumstances, FIR is not affected by
any legal infirmity. [Para 30] [85-8-C,F-H; 86-A]

2.3. As regards delayed receipt of the copy of FIR by
H
\

PANDURANG CHANDRAKANT MHATRE & ORS. v. 61
STATE OF MAHARASHTRA

the Court of Magistrate on April 12, 1988, the FIR register A
indicates that copy of FIR was sent to the concerned
Magistrate on April 3, 1988 itself. If the evidence of eye-
witnesses is found cogent, convincing and credible, the
delay in receipt of the copy of FIR by the concerned court
would not be of much significance. [Para 31) [86-A-C] B
.
• 3.1. The consideration of the evidence of PW-6 and
PW-3-watchman, by the trial court, was not proper. The
evidence of eye-witnesses-PW-2, PW-4, PW-5, PW-7, PW-
8, PW-9, and PW-10 is broadly corroborated by the
medical evidence in respect of the deceased as well as C
the injuries sustained by them. PW-11-Medical Officer
examined PW-2, PW-7 and PW-10 and the injuries
sustained by these witnesses is proved by the evidence
of PW-11. As regard the injuries sustained by PW-6, PW-
3, PW-4 and PW-8, the injury reports support their D
version. Examination of PW-2, PW-3, PW-4, PW-5, PW-6,
PW-7, PW-8 and PW-10 shows that their presence at the
time of incident cannot be doubted. [Paras 44, 36 and 64)
[86-C-D; 90-8-C, 101-C-D]
E
Muthu Naicker and Others vs. State of Tamil Nadu (1978)
~ 4 SCC 385; State of U.P. v. Ballabh Das and Others (1985)
3 SCC 703; State of U.P. v. Ram Swarup and Others 1988
(Supp) SCC 262, Referred to.

3.2. From the prosecution case, it is clear that the F
incident took place between the two rival political factions
and that all eye-witnesses, except PW-3 and PW-6 belong
to victim party. Thus, PW-2, PW-4, PW-5, PW-7, PW-8, PW-
9 and PW-10 can be stamped as interested witnesses.
_., PW-6 deposed that the deceased was son-in-law of his G
eldest brother and to that extent he is also an interested
witness. Before relying upon testimony of these
witnesses, adequate assurance from other
circumstances or materials is required to be seen. The
evidence of such witnesses has to be examined with H
,,
I '

62 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A great care and caution to obviate possibility of false
implication or over-implication. [Para 48] [93-C-D]
)
,_ ,

3.3. In cases involving rival political factions or group
enmities, it is not unusual to rope in persons other than .
~

who were actually involved. In such a case, court should 1
B

-
~
guard against the danger of convicting innocent persons
and scrutinise evidence carefully and, if doubt arises, '
benefit should be given to the accused. [Para 49] [93-E-
F]
} .. F
.·-,;

c 3.4. Section 149 IPC creates a specific and distinct
offence. Its two essential ingredients are commission of
an offence by any member of an unlawful assembly and; ~

such offence must have been committed in prosecution •
of the common object of that assembly or must be such
as the members· of that assembly knew it be likely to be
D ~
committed. However, where a large number of persons
are alleged to have participated in the crime and they are ~

sought to be brought to book with the aid of s.149 IPC,
this Court has applied rule of caution taking into
consideration particular fact-situation and convicted
E those accused whose presence was clearly established
and overt acts were proved. [Paras 51 and 53) [94-F-G;
95-E-F] +-
'
Masalti vs. State of UP. (1964) 8 SCR 133; Shere and
~
F Ors. vs. State of UP 1991 Supp.(2) SCC 437; Musa Khan
& Ors. vs. State of Maharashtra (1977) 1 SCC 733; Nagarjft i'
Ahir vs. State of Bihar (2005) 10 SCC 369; Maranadu And
Anr. vs. State by Inspector of Police, Tamil Nadu l~J08) 16
sec 529, referred to.
G 3.5. Having carefully examined the testimony of eye-
witnesses, it is found that prosecution has been able to ;..
establish that party of assailants comprised of more than
five persons; that they formed unlawful assembly and
that at least five persons chased the deceased and then
H attacked him. These members of the unlawful assembly
.;.
PANDURANG CHANDRAKANT MHATRE & ORS. v. 63
STATE OF MAHARASHTRA

, ( who chased and attacked the deceased definitely shared A
common object of causing murder of SA. [Para 58] [97-
~ F-G]
3.6. The High Court observed that common object of
...... the said unlawful assembly was to cause grievous hurt.
It held that common object of the unlawful assembly was B
~
to make murderous attack on the deceased. At first
{ blush, there seems to be some inconsistency in the
' judgment but on a deeper scrutiny, it is not found so. For
determination of common object of the unlawful
assembly, the conduct of each of the members of the c
unlawful assembly before and at the time of attack is of
" relevant consideration. At a particular stage of the
incident, what is object of the unlawful assembly is a
question of fact and that has to be determined keeping
' ~ in view the nature of the assembly, the arms carried by 0
I the members and the behaviour of the members at or
~(· near the scene of incident. The accused persons
~
(nineteen in number) armed with deadly weapons came
to the scene of occurrence sharing the common object
of causing grievous hurt to the victim party. A closer E
scrutiny of evidence shows that A-2, A-3, A-4, A-5, A-6, A-
10, A-11 and A-12 assaulted the prosecution witnesses-
~
some of them sustained grievous injuries. However,
when the deceased and prosecution witnesses ran helter
and skelter, at least five members of the unlawful F
assembly chased the deceased and they attacked him
with the weapons in their hand. The purpose and design
of these members of unlawful assembly in chasing SA
and a murderous assault by them on him may not have
been shared by other members of unlawful assembly. In
G
-~ such a case although having regard to facts, the number
of participants could not be less than five, it is better to
apply rule of caution and act on the side of safety and
convict only A-2, A-3, and A-12 under section 302 read
with section 149 IPC whose presence as members of
H
64 SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R.

A party of assailants is consistently mentioned and their
overt acts in chasing and assaulting the deceased are
clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit
of doubt with regard to offence under section 302 read
with section 149 IPC since evidence against them in
B chasing and assaulting the deceased is not consistent.
However, all the eight appellants are guilty of the
offences punishable under section 148 and section 326
read with section 149, l.P.C. This is proved beyond doubt
and the High Court cannot be said to have erred in
C holding so. [Para 59] [97-G-H(98-A-H;99-A]
3.7. There is no merit in the plea of alibi set up by A-
2. The plea of alibi set up by A-2 was not even accepted
by the trial court. The presence of A-2 in the incident is
established. He has been identified holding the iron bar.
D The prosecution witnesses have given specific
involvement of A-2 in the incident. On the basis of the
deposition of some of the eye-witnesses, the evidence of
DW-1 cannot be said to have been wrongly rejected by
trial court as well as by High Court. In cross-examination,
E DW-1 admitted that there was no supervisor at night on
that date. Original document was not produced and name
and designation of the officer who is said to have signed
the said certificate was not disclosed nor the person who
issued the certificate was produced. As a matter of fact,
F plea of alibi has not at all been probabilised by A-2 much
less proved. [Para 60] [99-8-D]
3.8. From the p'rosecution evidence it is clearly
established that the temple was illuminated due to an:-•..cal
fair and there were other lights at the tempi\:. It was full
G moon night. The subm1ssion that there was noi enough
light at the place of incident and, therefore, the incident
could not have been seen cannot be accepted. [Para 61]
[99-E-F]

3.9. The submission that site plan of the scene of
H
..
f
PANDURANG CHANDRAKANT MHATRE & ORS. v.
STATE OF MAHARASHTRA
65

offence could not have been accepted as PW-1 deposed A
that he prepared the site map as per the information
supplied by the police is devoid of any substance. No
objection was raised when the said document was being
exhibited. Moreover, the investigating officer has not at
all been cross-examined in this regard. [Para 62] [99-G- B
H; 100-A]

. ... Ramratan and others v. State of Rajasthan (1962) 3 SCR
590; Chhotu vs. State of Haryana (1996) SCC Crl. 1161,
Held inapplicable.
c
3.10. The submission that the High Court was not
justified in interfering with the judgment of acquittal as the
view taken by the trial court was the possible view cannot
be accepted. The view which the trial court took on the
basis of the evidence on record is neither possible nor D
plausible. There could not be more perversity in the
consideration of the evidence of eye-witnesses by the
trial court. [Para 63] [100-B-C]

Mahtab Singh & Anr. v. State of U.P. JT 2009 (5) SC E
431; Meharaj Singh (UNk.) v. State of U.P (1994) 5 SCC 188;
T. T. Antony v. State of Kera/a & Ors. (2001) 6 SCC 181;
Ramesh Baburao Devaskar & Ors. v. State of Maharashtra
~ (2007) 13 SCC 501; State of Haryana v. Prabhu & Ors AIR
1979 SC 1019; Sarwan Singh & Ors.etc. v. State of Punjab F
AIR 1978 SC 1525; Ram Anjore and Others. v. State of U.P.
AIR 1975 SC 185; Gokul & Others v. State of Rajasthan AIR
1972 SC 209; Md. Isak Md. & Others v. State of Maharashtra
AIR 1979 SC 1434; Ninaji Raoji Baudha & Another v. State
of Maharashtra AIR 1976 SC 1537; Nattan v. State of Tamil
Nadu AIR 1976 SC 2197; Mariadasan & Others v. State of G
~ Tamil Nadu AIR 1980 SC 573; Bharwad Bhikha Natha &
Others v. State of Gujarat AIR 1977 SC 1768; Harshadsingh
Pahelvansingh Thakore v. State of Gujarat AIR 1977 SC 710
Bhajan Singh and Others v. State of Punjab AIR 1978 SC
1759; Bansropan Singh and Others v. State of Bihar AIR 1983 H
I

66 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
..
A SC 166 Sarman & Others v. State of M.P. AIR 1 993 SC 400.;
/shwar Singh v. State of U.P AIR 1976 SC 2423; ~

Radhakrishnan Nair v. State of Kera/a 1995 Suppl (1) SCC
217; Chotu v. State of Haryana 1996 SCC (Crl.) 1161; Palia
v. State of Punjab; 1997 SCC (Crl.) 383; Bathula
B Nagamalleswara Rao And Ors. v. State rep. by Public
Prosecutor (2008) 11 SCC 722; Mahmood and Anr. v. State
of UP. (2008) Crl. Law Journal 696; State of Punjab v. Avtar 'v
Singh (2008) 14 SCALE 368; State of Punjab v. Gurdip Kaur
}--
(2009) 1 SCC 120; Chandu v. State of Maharashtra 2002 (9)
c SCC 408; Kashiram & Ors. v. State of M.P 2002 (1) SCC 71;
Harijana Thirupala & Ors. v. Public Prosecutor A.P.,
Hyderabad 2002 (6) SCC 470; Ram Ratan & Others v. State
of Rajasthan 1962 (3) SCR 590; Dharma Rama Bhagare v. ...,.....
State of Maharashtra (1973) 1 SCC 537; Vikram v. State of
Maharashtra JT 2007(7) SC 215, referred to.
D )...
Case Law Reference:
(1994) 5 sec 188 Referred to. Paras 16, 24 ,,..,-

(2001) 6 sec 181 Referred to. Paras.16, 25
E
(2001) 13 sec 501 Referred to. Paras 16, 26
AIR 1979 SC 1019 Referred to. Para 21
,..
AIR 1978 SC 1525 Referred to. Para 21
F AIR 1975 SC 185 Referred to. Para 21
AIR 1972 SC 209 Referred to. Para 21 ..,,.
AIR 1979 SC 1434 Referred to. Para 21
\.
AIR 1976 SC 153"." Referred to. Para 21 •
G
AIR 1976 SC 2197 Referred to. Para 21
AIR 1980 SC 573 Referred to. Para 21
AIR 1977 SC 1768 Referred to. Para 21
H
PANDURANG CHANDRAKANT MHATRE & ORS. v. 67
STATE OF MAHARASHTRA
AIR 1977 SC 710 Referred to. Para 21 A
(
AIR 1978 SC 1759 Referred to. Para 21
AIR 1983 SC 166 Referred to. Para 21
AIR 1 993 SC 400 Referred to. Para 21
B
AIR 1976 SC 2423 Referred to. Para 22
1995 Suppl (1) sec 211 Referred to. Para 22
t 1996 sec (Crl.) 1161 Referred to. Para 22
1997 sec (Crl.) 383 Referred to. Para 22 c
(2008) 11 sec 122 Referred to. Para 22
(2008) Crl. Law Journal 696 Referred to. Para 22
(2008) 14 SCALE 368 Referred to. Para 22
D
c2009) 1 sec 120 Referred to. Para 22
2001 (13) sec 501 Referred to. Para 22
2002 (9) sec 408 Referred to. Para 22
E
2002 (1) sec 11 Referred to. Para 22
2002 (6) sec 470 Referred to. Para 22
1962 (3) SCR 590 Referred to. Para 22
(1973) 1 sec 537 Referred to. Para 27 F
JT 2007(7) SC 215 Referred to. Para 28
1978 (4) sec 385 Referred to. Para 45
(1985) 3 sec 103 Referred to. Para 46
G
1988 (Supp.) sec 262 Referred to. Para 47
1964 (8) SCR 133 Referred to. Paras 52, 53
1991 Supp. (2) sec 437 Referred to. Para 54
H
..,_
68 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 1911 (1) sec 733 Referred to. Para 55
2005 (1 O) sec 369 Referred to. Para 56 -~

2oos (16) sec 529 Referred to. Para 57
1962 (3) SCR 590 Distinguished Para 62
B
1996 sec Crl. 1161 Distinguished Para 63
"
JT 2009 (5) SC 431 Referred to. Para 63 .,...
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal t
c No. 986 of 2007.

From the Judgment & Order dated 10.4.2007 of the High
Court of Judicature at Bombay in Criminal Appeal No. 132 of
1990. ·•

D R. Sundravardh_an, A.K. Srivastava, Shekhar Naphade,
P .S. Narsimha, Shivaji M. Jadhav, Rahul Joshi, Brijkishor Sah, .,.._
Lenin S. Hijam Abdul Tamboli, Rahul Thakur, Naresh Kumar,
Santosh Paul, Arvind Gupta, K.K. Bhat, Sriharsh N. Bundela,
C.K. Sasi, Sudhanshu S. Chaudhari, Sunil Kumar Verma,
E
Madhavi Divan, Ravindra Keshavrao Adsure for the appearing .,_
parties.

The Judgment of the Court was delivered by

R.M. LODHA, J. 1. This criminal appeal by special leave
is directed against the judgment of the High Court of Judicature
F
at Bombay whereby the Division Bench of that Court upturned
the judgment of acquittal passed by the llnd Additional Sessions
Judge, Raigad in respect of the present appellants and
convicted them for the offences punishable under Section 302
read with Sectic;;-, 149, section 326 read with 149 and Section
G 148, IPC and ~entenced them to suffer imprisonment for life ~
t
and different period of sentence under other counts along with
fine and default stipulation. >--

2. Nineteen persons were arraigned before the Trial Court
H for the offences under Sections 147, 148, 302 read with
-.. I

PANDURANG CHANDRAKANT MHATRE & ORS.
STATE OF MAHARASHTRA [RM. LODHA, J.]
v. 69

Section 149, section 302 read with section 34, section 307 A
-( read with section 149 and section 326 read with section 149,
IPC. Trial Court acquitted all of them. The prosecution
challenged the judgment of acquittal before the High Court of
Judicature at Bombay. The High Court granted leave to appeal
against fourteen accused persons only. As against remaining B
five accused, leave- was refused. During the pendency -of
...
\
appeal, one of the accused, against whom leave was granted,
died. Of the remaining thirteen accused, the Division Bench
+ affirmed acquittal of five. The Division Bench convicted eight
accused as indicated above. c
3. Before dealing with the points raised in the appeal, it is
appropriate to set out very briefly the prosecution case. Phunde,
a small village in Taluka Uran, District Raigad, Maharashtra has
two groups; one group is politically associated with the
Peasants and Workers Party (PWP) while the other group has D
alliance with the Congress (I) Party. The party of the assailants
belong to PWP and the prosecution witnesses belong to
•. Congress-I party. The deceased was also a Congress-I party
worker. The relations between the two groups due to party
politics seem to have been strained for quite some time. E
Several criminal cases have been lodged by these two groups
against each other. On the outskirts of the village Phunde, there
is a temple popularly known as Gurbadevi Temple. The said
temple celebrates every year an annual fair with pomp and show;
a Jagran is held in the night on the said occasion. On April 2, F
1988, the annual fair at Gurbadevi Temple was being.
celebrated; the idol was adorned with ornaments and the entire
temple complex was illuminated with electric lights. In the night,
the villagers gathered in the temple for Jagran. The group
belonging to Congress (I) party took active part in the G
management of the said fair. The celebrations continued until
midnight. Thereafter, most of the villagers left the temple.
However, 15-20 persons who were in management ofthe said
festival stayed back to keep watch over the ornaments adorned
by the idol. Few of those who stayed back were chit-chatting in H
70 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Sabhamandap, while some of them were simply resting and
others kept themselves awake by playing cards. In the
intervening night of April 2, 1988 and April 3, 1988 at about 3
- 3.15 A.M., Ramesh Mhatre (A-3) came to the temple, had a
look around and then left. A-3 did not speak to anybody. About
B 15-20 minutes thereafter, A-3 returned to the temple with a
group of about 20 persons. All of them were allegedly armed
with weapons like iron bar, swords, pharashi, sticks etc. As
soon as they reached, they are said to have started attacking
the people assembled there. Pandurang Chandrakant Mhatre
c (A-2) -and Ramesh Mhatre (A-3) gave iron-bar blows on the
back of Nandkumar Mhatre (PW-2) but he escaped and ran
towards the village. The accused persons started shouting
'dhara-dhara' 'mara-mara'. Then, they assaulted Suresh
Atmaram Gharat (deceased), Sudin Mhatre (P\IV-4), Namdeo
D Mhatre (PW-5), Laxman Mhatre (PW-6), Gopal Thakur (PW-
7), Mahindra Mhatre (PW-8) and Mahesh Bhoir (PW-10).
Suresh Atmaram Mhatre, ran towards Uran-Panvel Road but
the accused persons chast:J him. Maninath Shanker (A-12)
assaulted him with sword. The other accused persons assaulted
him with sticks and iron bars. As a result of that assault, Suresh
E Atmaram Gharat sustained serious injuries. PW-2 rushed
towards village and shouted for help by saying that PWP
workers were assaulting their (Congress-I) Party members.
Hearing this, the villagers rushed towards Gurabadevi Temple.
PW-2 then went to Nhava Sheva Police Station where he
F reached at about 4.15 A.M. (April 3, 1988). On reaching at Nava
Sheva Police Station, PW-2 found that Namdeo Mhatre (PW-
5) was already sitting in the police station who had conveyed
to the police that persons from rival party (PWP) have assaulted
the persons from their party and, that arrangements be made
G in sending the Police Party. PSI Anil Tamaichekar (PW-18)
alongwith two police constables and PW-2 ini-mediately left for
the temple in a police jeep. On his way to village Phunde, PW-
18 made enquiries from the persons who were crying and he
came to know that the injured persons have been taken to Uran
H Dispensary. When he reached Uran Dispensary, he was
PANDURANG CHANDRAKANT MHATRE & ORS. v. 71
STATE OF MAHARASHTRA [R.M. LODHA,· J.]
informed that seriously injured persons have been sent to Sion A
Hospital, Bombay. PW-18 then went to the place of occurrence
and from there he proceeded for Nhava Sheva Police Station.
On his way, PW-18 came across one ambulance carrying
injured persons. PW-18 was informed that one of the injured
persons viz., Suresh Atmaram Gharat was dead. PW-18 and B
PW-2 then immediately went to Nhava Sheva Police Station.
PW-2 lodged the complaint (Exh. 31) based on which a criminal
case (C.R. No. 17/88) was registered at 6.00 AM. on April 3,
1988 for the offences under Sections 302, 147, 148, 149, 323,
114, 307 and 326, IPC. The investigation into the crime was c
commenced by PW-18; he prepared inquest Panchnama
(Exh.67); spot Panchnama (Exh. 32); and recorded the
statements of some witnesses in the vicinity of scene of offence.
The investigation was then taken over by Shantaram
Waghmare, Assistant Commissioner of Police (PW-17) and
0
changed hands as PW-17 was transferred. As the accused
persons were not traceable, the Investigating Officer searched.
them vigorously. Six accused persons were arrested on May
26, 1988; nine were arrested on May 28, 1988 and the
remaining four were arrested on August 16, 1988. For the E
period from May 28, 1988 to August 18, 1988, on different
dates at the instance of different accused persons, weapons
of assault were recovered. The investigation took long time of
about 4-5 months.

4. The postmortem of dead body of Suresh Atmaram F
Gharat was conducted on April 3, 1988 by Dr. Bhujang Bawa
(PW-11 ), Medical Officer, Uran Dispensary. PW-11 also
medically examined injured witnesses on the same day; six of
them were sent to; the Sion Hospital, Bombay for treatment as
they received seri6us injuries. Upon completion of all necessary G
formalities in the investigation, the Challan was submitted by
+ the Investigating Officer before the Judicial Magistrate, First
Class, Uran against Kamlakar Shrawan Thakur (A-1),
Pandurang Chandrakant Mhatre (A-2). Ramesh @ Raman
Chandrakant Mhatre (A-3), Parshuram Chandrakant Mhatre (A- H
72 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 4), Ashok Yadav Mhat~e (A-5), Damodar Vasant Gharat (A-6),
Vinod Trimbak Mhatre (A-7), Prakash Pandurang Thakur (A- ~
8), Mahesh Pandurang Gharat (A-9), Ramchandra Raghunath
Mhatre (A-10), Mahesh Shankar Gharat (A-11 ), Maninath ..--
~
Shankar Gharat (A-12), Mukund Moreshwar Mhatre (A-13),
8 Ganpat Raghunath Mhatre (A-14), Bhushan Balchandra Mhatre
(A-15), Dayanand Mahadeo Mhatre (A-16), Rupendra Shripat
Mhatre (A-17), Nitin Kamalakar Thakur (A-18) and Prakash
Madhukar Mhatre (A-19). As offences like 302 and 307 were
exclusively triable by the Court of Sessions, the Judicial
c Magistrate, First Class, committed the aforesaid accused
persons to the Court of Sessions Judge, Raigad-Alibagh. The.
case was transferred to the Court of llnd Additional Sessions
Judge, Raigad-Alibag for trial.

5. PW-11 found following injuries on the body of the
D deceased :
~

"(1) Incised wound over the left Iliac fossa, vertical skin
deep, 8 X % cm.

(2) Incised wound over the head 4 cm above the Occipital. >
E ,)

Vertical 3 x % cm. Bone deep

(3) C.L.W. over the right upper arm in the middle on lateral
side (4 x 4 cm.) with fracture of the right humerus m/3. f

F (4) C.L.W. just below the right Tibial Tuberosity 3 x 3 cm. I
I

Irregular with fracture of Tribia and fibula U/3.

(5) C.LW. over the right shin over lower/3 on anterior side
2 x 2 cm. with a fracture of tibia and fibula L/3.
......
G (6) Fracture of left Radius and Ulna L/3."

The aforesaid injuries on the body of deceased were found . +
ante-mortem by PW-11.

6. Laxman Mhatre (PW-6) was initially taken to the Uran
H
/
PANDURANG CHANDRAKANT MHATRE & ORS. v. 73
STATE OF MAHARASHTRA [R.M. LODHA, J.]

-
Dispensary and from there he was taken to Sion Hospital, A
Bombay on April 3, 1988 itself. He was found to have sustained
following injuries (vide Exh. 87) :

"(i) CLW (R) FO Region 2" x 1" BO

(ii) S/7/D (L) Ulna m/3 no. DWD B

CLW 1" x Y2'' SCD L/3rd ulna PW m/3 Ulna clinically# ml
3 Ulna Contamination +

(iii) open injury (R) elbow CLW 2" x 1" BO c
.1
vertically splitting olecranon with impression # (R) trochlea

No DWD

~
(iv) S/7/D (R) Ankle no DWD D
(v) tenderness (R) gluteal region.
' (vi) No.# spine/pelvis/ribs/clinically

x-ray # (L) Ulna m/3; # (R) Olecranon compo vertical; E
soft tissue (R) ankle injury."

7. Vithal Pandurang Mhatre (PW-3) was also taken to Sion
Hospital, Bombay on April 3, 1988. He was discharged on May
14, 1988. At the time of admission in the hospital, the following
injuries were found on his person (Vide Exh. 88) : F

"(1) Amputation (R) thumb with thumb held by skin tag.

(2) l/W (R) thigh subcutaneous deep 1" x Y2"

8. Sudin Mhatre (PW-4) was admitted in Sion Hospital on G
April 3, 1980. He remained there as indoor patient for three
days and was discharged on April 6, 1988. At the time of his
admission in the Sion Hospital, he was found to have sustained
the following injuries (Vide Exh. 89) :
H
74 SUPREME COURT REPORTS [2009) 15 {ADDL.) S.C.R.
-
A "(1) CLW vertex 10 cm

(2) Outer table# skull "

9. Mahindra Lalji Mhatre (PW-8) was admitted at Sion
hlospital on April 3, 1988 and was discharged on April 5, 1988.
8
At the time of his admission in Sion hospital, he was found
suffering from the following injuries (Vide Exh. 90) :
,__
"(1) CLW sintered forehead 1 Yi"

c (2) CLW occipital 1 Yi"

(3) CLW mucosal aspect'lower lip area 1__

(4) Multiple inj on back"

D 10. Namdeo Yadav Mhatre (PW-5) sustained the following ~
injurie~:

"1. Abrasion over the back at lumbar region 2 x 2 cm
with irregular margin.

E 2. Abrasion over Rt.intra-axillary area 3 x 3 cm with
irregular margin.

3. Abrasion over the Left elbow jt. 1 x 1 cm irregular
in margin."

F 11. Mahesh Kashinath Bhoir (PW-10) was also injured in
the incident and he suffered the following simple injuries :

"Wheelmark over the Epigastric region 6 x 2 cm vertical
with irregular margin."
G
12. The prosecution sought to establish its case by
tendering nine eye-wHnesses in evidence, viz., PW-2, PW-3,
+
PW-4, PW-5, PW-6,· PW-7, PW-8, PW-9 and PW-10. Many of
them were injured. The accused persons denied that they had
anything to do with the offences charged . .Their defence was
H
~

PANDURANG CHANDRAKANT MHATRE & ORS. v. 75
STATE OF MAHARASHTRA [R.M. LODHA, J.]
,, that a false case has been made against them by the aforesaid A
~\ prosecution witnesses. A-2 pleaded alibi in his defence.
~..._.... ~

13. The trial court rejected the evidence of eye-witnesses
holding that because of a sudden attack, all the prosecution
witnesses ran helter-skelter and everybody tried to run away B
from the accused to save their life and in a situation like this
'\,
~ they must not have been in a position to see actually who
-{ assaulted them. The trial court held that the evidence regarding
assault on Suresh Atmaram Gharat was not specific and as he
(deceased) ran from the temple, the attack on him took place
at some distance from the temple and being a night time, none
c
..¢.· of the witnesses could see the attack on the deceased from
~

the short distance, say about 5' to 1O'. The trial court observed
,.. that although PW-5 reached the Nhava Sheva Police Station
at about 4 to 4.15 a.m. and gave information about the incident,
·'< but the FIR was registered at 6.00 a.m. at the instance of PW- D
2. From this, the trial court drew the inference that PW-18 and
PW-2 must have pondered over the matter for false implication
of the accused in the offence. The trial court, thus, acquitted all
the accused persons.
E
14. The High Court, however, reversed the conclusion of
the trial court in respect of eight accused persons. The High
Court held that in the intervening night of April 2, 1988 and April
\ 3, 1988 at about 3 to 3.30 a.m., there was an unlawful assembly
of which A-2, A-3, A-4, A-5, A-6, A-10, A-11 and A-12 were F
the members. The High Court also held that all the accused
were armed with deadly weapons like sword, iron bars,

....
'
pharshi, sticks and their common object was to make a
murderous attack on Suresh Atmaram Gharat. The High Court,
after setting aside the order of acquittal against A-2 to A-6, A-
G
... 10, A-11 and A-12, convicted them for the offence punishable
under Section 302 read with 149, l.P.C. and sentenced them
'te> suffer. imprisonment for life. The High Court also convicted
these accused persons for other offences and punished them
for lesser sentence with fine and default stipulations.
H
..
76 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 15. Mr. R. Sundaravardan, learned Senior Counsel \
addressed the principal arguments before us on behalf of ~
... ~,~
appellant nos. 1 to 3. Mr. A.K. Srivastava, learned Senior
Counsel made submissions for appellant nos. 4 to 6 and Mr.
Shekhar Naphade, learned Senior Counsel argued for
B appellant.no .. 8.

16. Mr. R. Sundaravardan, learned Senior Counsel
submitted that FIR (A-31) is no FIR in law as it is hit by the }-
prohibition contained in Section 162 of Cr.P.C. He would
..
... _ ,;

c submit that FIR (A-31) is of doubtful authenticity as it lacks
spontaneity and delay in its registration. According to him, FIR
ought to have been registered in the first instance on the ~
"'~

information of PW-5 or in any case on the information given
by PW-2 at 4.30 a.m. Instead, PW-18 (10) takes PW-1 to the
scene of occurrence, meets the villagers and ambulance on the
D way, dispatches the dead body to the hospital for the post- )I>-

mortem, goes to the village and thereafter proceeds to the
police station along with PW-2 and registers the purported FIR ..
(A-31) with coloured version, exaggerated accounts and
concocted story against whom the prosecution party has a ·(
I
E grudge. Learned Senior Counsel also submitted that there was I

gross violation of Section 157, Cr.P.C. inasmuch as FIR in the
Court was received on April 12, 1988, although the occurrence
' took place on April 3, 1988. He relied upon ·the decisions of
this Court in Meharaj Singh (UNk.) v. State of U.P. 1 ; T. T.
i
,.
F Antony v. State ofKerala & Ors 2 . and Ramesh Baburao
~

'>-
Devaskar & Ors. v. State of Maharashtra 3 • The learned Senior
Counsel, thus, submitted that there is genuine doubt as to the
time, date and manner in which purported FIR (A-31) was
....
recorded and police is guilty of having not disclosed the whole
G correct story to the court.
+
17. Learned Senior Counsel would contend that the
1. (1994) s sec 188.
2. (2001) B sec 181.

H 3. (2007) 13 sec so1.
PANDURANG CHANDRAKANT MHATRE & ORS. v, 77
STATE OF MAHARASHTRA [R.M. LODHA, J.]

;, evidence of witnesses, who professed themselves as eye- A
~
witnesses deserved to be rejected as they belong to rival
political parties in a faction ridden village. Moreover, they are
related to each other as well as the deceased. These
witnesses have been examined at much belated stage by
police; some of them after nine days. Learned counsel would B
)
urge that one or other of these prosecution witnesses are
themselves accused in sessions case; in some cases accused
1 were witness/complainant against them and some of the
prosecution witnesses' parents were convicted for fife. Their
testimony is also not corroborated by any doctor from Sion c
Hospital as no doctor from that hospital was examined and that
their evidence suffers from vital contradictions, omissions,
exaggerations and improvements. In this regard, the learned
Senior Counsel took us through the evidence of PW-2, PW-3,
..,, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9. He also
D
submitted that evidence of PW-3, PW-4 and PW-8 is hearsay
evidence and, therefore, no evidence in the eye of law.

18. Learned Senior Counsel vehemently contended that
investigation in the present case is an example of one of the
most unfair investigation inasmuch as the certificate regarding E
A-2, as to his .absence from scene though procured by PW-
,., 17, yet, was kept away from the Court. He also cited late
recording of the FIR after having taken several steps of
investigation as yet another glaring example of unfair
investigation. On top of it, he would submit that FIR reached F
the concerned court after nine days of incident.

19. Mr. R. Sundaravardan, learned Senior Counsel also
contended that plea of alibi set up by A-2 is established by the
evidence of DW-1 who is an officer of NAD. Learned Senior
G
Counsel also submitted that from the prosecution evidence, the
• doubt about the place of occurrence has not been cleared and
that prosecution has failed to establish the availability of
adequate light at the site which could have enabled the
witnesses in fact see the incident.
H
78 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
.;· ~
,'

.·~
. ,•
A 20. Learned Senior Counsel strenuously urged that the trial
court has given cogent and convincing reasons for acquitting ~ ~
the appellants but the High Court without justifiable reasons and,
rather, on flimsy grounds interfered with the judgment of the
acquittal.
B
21. Lastly, learned Senior Counsel; without prejudice to the
afore-noticed submissions, urged that there was no evidence
to show that there was common object of the unlawful assembly
to commit murder of Suresh Atmaram Gharat. He invited our ~
- ~
attention to the finding recorded by the High Court at page 39
c of the SLP paper book wherein the High Court recorded that
common object of the unlawful assembly was to cause grievous (
•,

.
hurt. Learned Senior Counsel would urge that there was no
specific evidence to show that Suresh Atmaram Gharat died ...
because of any particular blow. According to him, the High
D Court although held that for six injuries on the person of
"!---
deceased, as per post-mortem report, nine accused cannot be
held guilty yet the High Court came to the conclusion that
common object of the unlawful assembly was to commit murder. ....
The learned Senior Counsel submitted that when there was
E doubt as to who inflicted the fatal blow, as in the present case,
·"1'
safe course is to convict the accused under Sections 326 or
304 Part-II, IPC. In this regard, the learned Senior Counsel
relied upon large number of decisions, viz., State of Haryana /.
v. Prabhu & Ors4,' Sarwan Singh & Ors.etc. v. State of Punjab5; '
~
F Ram Anjore and Others. v. State of U.P. 6 ; Gokul & Others v. .,.. ~

State of Rajasthan 7 ; Md. Isak Md. & Others v. State of
Maharashtra 8 ; Ninaji Raoji Baudha & Another v. State of
Maharashtra 9 ; Nattan v. State of Tamil-Nadu 10 ; Mariadast':a
4. AIR (1979) SC 1019.
G 5. AIR 1978 SC 1525
6. AIR 1975 SC 185 }--
t
7. AIR 1972 SC 209
8. AIR 1979 SC 1434
9. AIR 1976 SC 1537
H 10. AIR 1976 SC 2197
--,./
/

PANDURANG CHANDRAKANT MHATRE & ORS. v. 79
STATE OF MAHARASHTRA [R.M. LODHA, J.]
., & Others v. State of Tamil Nadu 11 ; Bharwad Bhikha Natha & A
Others v. State of Gujarat12 ; Harshadsingh Pahelvansingh
Thakore v. State of Gujarat13 ; Bhajan Singh and Others v.
State of Punjab 14 ; Bansropan Singh and Others v. State of
Bihar15 ; Sarman & Others v. State of M.P16 •
f
8
22. On behalf of appellant No. 8 (A-12), separate written
----- submissions have been filed. While adopting the arguments
1 advanced by Mr. R. Sundaravardan, it is contended on behalf
of appellant No. 8 that the unexplained delay in dispatch of FIR
would create suspicion about the contents of the FIR and the
evidence of the eye-witnesses. In this regard, reliance has been c
/
~
placed on: lshwar Singh v. State of U.P17; Radhakrishnan Nair
v. State of Kerala 18 ; Chotu v. State of Haryanc:i 19 ; Palia v. State
. of Punjab 20 ; Bathula Nagamalleswara Rao And Ors. v. State
rep. by Public Prosecutor21; Mahmood and Anr. v. State of
-<(
U.P. 22 ; State of Punjab v. Avtar Singh 23 ; State of Punjab v. D
Gurdip Kaur2 4 and Ramesh Baburao Devaskar And Others v.
·- State of Maharashtra 25 • It is also contended that although the
trial court recorded the finding to the effect that there was

E
11. AIR 1980 SC 573
12. AIR 1977 SC 1768
~ 13. AIR 1977 SC 710
14. AIR 1978 SC 1759

.... 15. AIR 1983 SC 166
F
16. AIR 1993 SC 400.
17. AIR 1976 SC 2423
18. 1995 Suppl (1) sec 217
I
19. 1996 sec (Crl. 1161
-f
.
t

20. 1997 sec (Crl.) 383
G
... 21. (2008) 11 sec 722
22. (2008) Crl. Law Journal 696
23. (2008) 14 SCALE 368
24. (2009) 1 sec 120
25. 2007 (13) sec 501 H
80 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A violation of mandatory provisions contained in Section 157 of
Cr.P.C. which is fatal for prosecution case, the High Court has
not considered this aspect at all which is a serious infirmity. In
this regard, reliance has been placed on Chandu v. State of
Maharashtra 26 ; Kashiram & Ors. v. State of M.P. 27 and
B Harijana Thirupala ~ Ors. v. Public Prosecutor A.P.,
Hyderabad2 8 • A contention has also been raised on behalf of
the appellant No. 8 about the inadmissibility of site plan (Exh.
29). Reliance has been placed in this regard on the decision
-- l

of this Court in the case of Ram Ratan & Others v. State of
c Rajasthan 29 •

23. On the other hand, Ms. Madhavi Divan, State Counsel, .
-."

'
supported the judgment of the High court.

24. In Meharaj Singh, this court explained the
•
D consequences that may ensue due to delay in dispatching FIR
to the Magistrate in the following words:

" .......... 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
E
it can give rise to an inference that the FIR was not lodged
at the time it is alleg9d 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
F evidence at all in this behalf...... "

25. In the case of T. T. Antony, it has been held bv this
Court that there can be no second FIR. While dc:.:1ng with
Section 154 and other relevant provisions, this Court said:
G
26. 2002 (9) sec 408
21. 2002 (1) sec 11
2s. 2002 (6) sec 470
29. 1962 (3) SCR 590;
H
PANDURANG CHANDRAKANT MHATRE & ORS. v. 81
STATE OF MAHARASHTRA [R.M. LODHA, J.]

"18. An information given under sub-section (1.) of Section A

~
154 Cr. P. C is commonly known as first information report
.,
(FIR) though this term is not used in the Code. It is a very
important document. And as its nickname suggests it is
the earliest and the first information of a cognizable offence
recorded by an officer in charge of a police station. It sets B
the criminal law in motion and marks the commencement
of the investigation which ends up with the formation of
opinion under Section 169 or 170 Cr.P.C, as the case may
-1 be, and forwarding of a police report under Section 173
Cr.P.C. It is quite possible and it happens not infrequently c
that more informatiQlls than one are given to a police
officer in charge of a police station in respect of the same
incident involving one or more than one cogn,i.zable
offences. In such a case he need not enter every one of
them in the station house diary and this is implied in D
~
Section 154 Cr.P.C. Apart from a vague information by a
phone call or a cryptic telegram, the information first
entered in the station house diary, kept for this purpose,
./
by a police officer in charge of a police station is the First
Information Report - FIR postulated by Section 154
E
Cr.P.C. All other informations made orally or in writing after
the commencement of the investigation into the cognizable
offence disclosed from the facts mentioned in the first
information report and entered in the station house diary
by the police officer or such other cognizable offences as
F
may come to his notice during the investigation, will be
statements falling under Section 162 Cr.P.C. No such
information/statement can properly be treated as an FIR
and entered in the station house diary again, as it would
in effect be a second FIR and the same cannot be in
conformity with the scheme of Cr.P.C ............... G

19. The scheme of Cr.P.C is that an officer in charge of a
police station has to commence investigation as provided
in Section 156 or 157 Cr.P.C on the basis of entry of the
---{
first information report, on coming to know of the H

•
_L
"'
82 SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R.

A commission of a cognizable offence. On completion of
investigation and on the basis of the evidence collected, .,
1-
he has to form an opinion under Section 169 or 170
Cr.P.C, as the case may be, and forward his report to the
Magistrate concerned under Section 173(2) Cr.P.C.
B However, even after filing such a report, if he comes into
possession of further information or material, he need not
register a fresh FIR; he is empowered to make further
investigation, normally with the leave of the court, and where \
)--
during further investigation he co'llects further evidence, oral
c or documentary, he is obliged to forward the same with one
or more further reports; this is the,.import of sub-section (8)
of Section 173 Cr.P.C.

20. From the above discussion it follows that under the
scheme of the provisions of Sections 154, 155, 156, 157,
D 162, 169, 170 and 173 Cr.P.C only the earliest or the first
information in regard to the commission of a cognizable
offence satisfies the requirements of Section 154 Cr.P.C.
Thus there can be no second FIR and consequently there
can be no fresh investigation on receipt of every
E subsequent information in respect of the same cognizable
offence or the same occurrence or incident giving rise to
one or more cognizable offences. On receipt of information
about a cognizable offence or an incident giving rise to a
cognizable offence or offences and on entering the FIR in
F the station house diary, the officer in charge of a police
station has to investigate not merely the cognizable offence
reported in the FIR but also other connected offences found
to have been committed in the course of the same
transactior o:- the same occurrence and file one or more
G reports as provided in Section 173 Cr.P.C."

26. In the case of Ramesh Baburao Devaskar, this Court +
observed :

"18. A First Information Rep.art cannot be lodged in a
H murder case after the inquest has been held. The first
..,
/

'

PANDURANG CHANDRAKANT MHATRE & ORS. v. 83
STATE OF MAHARASHTRA [R.M. LODHA, J.]
information report has been lodged on the basis of the A
t
statements made by PW 11 to the informant himself at the
-·' spot. If the said prosecution witness who claimed himself
to be the eyewitness was the person who could lodge a
first information report, there was absolutely no reason as
to why he himself did not become the first informant. The B
first information report was recorded on the basis of his
information given to the first informant at the spot. All
i information given by him to PW 13 was made before the
investigating officer himself. What prevented him from
lodging the First Information Report is beyond our c
comprehension. PW 11, we may place on record,
' categorically stated that he had disclosed the details of
information to all concerned. Therefore, it is expected that
the first informant was informed thereabout. We have
noticed hereinbefore that the information given by PW 13
-1 D
had at least been recorded by the police in the crime
.\register and he categorically stated a few facts viz. the
~
main accused Accused 9 committed murder of his brother
Shivaji Patil and one Baburao Patil. Even the place where
the murder took place was known to him. If we are to
E
believe the investigating officer, he recorded the statement
after holding inquest. The detailed report in regard to the
.. nature of injuries as also the place where the injuries were
inflicted was known to him as inquest report had already
been prepared. Such an attempt on the part of the
~ investigating officer has been deprecated by this Court in F
a large number of decisions. All other witnesses including
the panch witnesses must have been present there. If
~"- despite the same, according to panch witnesses, at least
in respect of Baburao, unknown persons are said to be his
r' assailants, it is evident that PW 11 did not disclose the G
-t. names of the assailants; at least all of them before PW 9
as also. the investigating officer."

27. In Dharma Rama Bhagare v. State of Maharashtra30 ,
30. (1973) 1 sec 537 H
~
{
'

84. SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A this Court held that FIR is never treated as a substantive piece
of evidence; it can only be used for corroborating or
contradicting its maker when he appears in Court as a witness.

28. In the cas·e of Vikram and Ors. v. State of
Maharashtra 31 , this Court noticed :
8
"It may be true that P.W. 2 had informed the officer in
charge of the Police Station on telephone, but the
circumstances in which the said call had to be made has
been noticed by us heretobefore. The Head Constable
c states that he had written down the same but then H must
have been a cryptic report and only for the purpose of
visiting the scene of occurrence.He as well as the •,

Investigating Officer did not say that it was a detailed '

D
report. If, in the aforementioned premise, another First
Information Report which was a detailed one came to be
recorded, no exception can be taken to the same being
treated as a First Information Report."
-
29. It is fairly well settled that First Information Report is
E not a substantive piece of evidence and it can be used only to
discredit the testimony of the maker thereof and it cannot be
utilized for contradicting or discrediting the testimony of other
witnesses. In other words, the First Information Report cannot
be used with regard to the testimony of other witnesses who
depose in respect of incident. It is equally well settled that the
F earliest information in regard to commission of a cognizable
offence is to be tre2ited as First Information Report. It sets the
criminal law in motion and the investigation commences on that
basis. Althoug.h First information Report is not expected to be
encyclopedia of 'ever,(::> but an information to the police to be
G 'first information report' under Section 154(1 ), must contain
some e'ssential and relevant details of the incident. A cryptic
information about commission of a cognizable offence

31. JT 2007 (7) SC 215
H
PANDURANG CHANDRAKANT MHATRE & ORS. v. 85
STATE OF MAHARASHTRA [R.M. LODHA, J.]
· irrespective of the nature and details of such information may A
not be treated as First Information Report. The question is:
whether the information regarding the incident (Ex.61) entered
in the General Diary of Nhava Sheva Police Station given by
PW-5 is the First Information Report within the meaning of
Section 154, Cr.P.C. If the answer is in affirmative, obviously B
First Information Report (A-31) is hit by section 162 Cr.P.C.

30. It is true that PW-5 reached the police station at about
4.00 - 4.15 a.m. He gave information that several persons were
assaulting members of their party; that the accused were armed
with deadly weapons and that police should immediately leave C
for the place of occurrence. This information (Ex.61) was
entered in General Diary of the police station. Based on this
information, PW-18 left for the place of occurrence alongwith
PW-2 who had also reached the police station by that time. The
circumstances in which PW-18 had to leave before recording D
a formal first information are obvious as the first priority before
him was to control the incident since by that time none had died.
In a situation such as the present one, it cannot be said that
the moment PW-18 left the police station, the investigation had
commenced. The object and purpose of giving information E
(Ex.61) by PW-2 was to request the officer in charge of the
police station to reach the place of occurrence. No doubt PW-
• 18 (JO) had left for scene of occurrence on the basis of entry in
the General Diary (Ex.61) recorded at the instance of PW-5 and
he visited the scene of occurrence and dispensary but F
effectively neither the inquest was carried out before registration
of FIR nor any step towards investigation was taken before the
lodging of First Information Report (A-31). In an incident where
large number of accused are involved in assaulting rival village
folk, obviously the first task of the Police Officer (PW-18) is to G
ensure visit to the scene of occurrence and provide police help,
• if necessary. Rather, it would have been unnatural on the part
of PW-18 to have insisted on taking down the entire incident
by way of First Information Report when PW-5 reached the
Police Station at about 4.00 to 4.15 A.M. for getting help for H
86 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A the victims. The immediate task for PW-18 was to focus on
i
providing help to the victims who, as per the version of PW-5,
were still being attacked. In the circumstances, FIR (A-31) is
not affected by any legal infirmity.

31. As regards delayed receipt of the copy of FIR by the
8 Court of Magistrate on April 12, ·1988, in the first place Exhibit
84 - FIR register indicates that-copy of FIR was sent to the
concerned Magistrate on April 3, 1988 itself.
Secondly, and more importantly, if the evidence of eye-
witnesses is found cogent, convincing and credible, the delay
C in receipt of the copy of FIR by the concerned court would not
be of much significance.

32. It is, therefore, important to examine whether High
Court committed any error in accepting the evidence of PW-2,
o PW-3, PW-4, PW-5, PW-6, PW-7, PW-8, PW-9 and PW-10.
The learned Senior Counsel criticised the testimony of these
eye-witnesses for various reasons viz., that they belong to rival
political parties in a faction ridden village; that they are related
to each other as well as deceased and that most of these
E witnesses themselves have been accused in sessions case
and that th.eir evidence suffers from vital contradictions,
omissions, exaggerations and improvements. Before we deal
with the evidence of PW-2, PW-4, PW-5, PW-7, PW-8 and PW-
9, we deem it proper to consider the evidence of PW-3 and
F PW-6 first.

33. Both, PW-3 and PW-6, sustained injuries. PW-6 at the
relevant time was a watchman in construction company. His hut
was at a distance of 1O' to 15' from the temple. In the
intervening night of 2nd and 3rd April, 1988, at about 3.30 A.M.
G while he was on duty, he saw 20-25 people, armed with sticks
and iron bars entering the Sabhamandap. He also saw the
people who were doing Jagran running from the Sabhamandap.
Suresh Atmaram Gharat (Deceased) came running to the place
near him and he saw that the deceased was being chased by
H A-1, A-2, A-3, A-4 and A-12. A-12 was armed with sword while
PANDURANG CHANDRAKANT MHATRE & ORS. v. 87
STATE OF MAHARASHTRA [R.M. LODHA, J.]
others were armed with iron bars and sticks. All of them started A
attacking the deceased with the respective weapons in their
hands. The deceased fell on the ground. PW-6 deposed that
when he went ahead, A-3 gave iron bar blow on his head, A-9
gave iron bar blow on his waist and A-12 gave sword blow on
his head but he held both his hands on his head and received B
the sword blow on his left hand while resisting the blows. PW-
6 deposed that after some time, villagers came and took injured
persons including him to Uran Medical Dispensary and from
-f
there they were taken to Sien Hospital in an ambulance. He
remained in Sien Hospital until April 11, 1988. His statement c
was recorded by the Police on April 16, 1988. The deceased
was son-in-law of his eldest brother. The witness has been
cross-examined at quite some length and except minor
contradictions or omissions, his deposition has not at all been
shaken. D
34. PW-3, a watchman, was on night duty in one private
company at a distance of about 15'. On April 2, 1988 he had
gone for his duty at 7.00 P.M. He saw that there was Jagran at
Gurbadevi temple. The singing and dancing in the temple
continued upto 1.00 AM. and, thereafter, except 18-20 villagers, E
who stayed back at the temple, all others left. At about 3.30
AM., A-3 holding iron bar in his hand started giving blows to
• him on his left leg. According to him, he resisted the attack but
at that time A-12 came there with the sword and to resist the

, attack from A-12, he held his right hand on his head but A-12
gave sword blow on his head and his thumb got cut. A-2 and
F

A-3 gave blows by iron bar on his back. He has not given

I. details of attack on others, particularly, the deceased .

35. The trial court commented on the evidence of PW-3
G
and PW-6 thus :
• "I want to make some comment that what was the business
for P.W.6 Laxman Mhatre and P.W. 3 Vithal Mhatre to
leave their place of duty and witness the incident and get
H
88 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A themselves involved and injured during the course of
incident? When they were doing the job of watchman which
is a responsible job, it was not desirable.for them to leave
the place of their employment. In such circumstances there
was a risk on their part to loss their job also. It is quite
B obvious that during the course of the incident both of them
had left their place and had also got injured. The first
reaction of their employer would be that they would have
dismissed them from their job. The watchman would not
have risked their job at the cost of the villagers with whom
c they had no concern. So one part of the matter is that these
witnesses must not have left their place and if they had left
their place, they are deposing falsely."

36. We are afraid, the consideration of the evidence of
PW-6 and PW-3 by the trial court, particularly in the light of the
D observations noticed above, was not proper.

37. We shall now examine the evidence of other eye-
witnesses. PW-2 is tile person at whose instance FIR was
registered. In his deposition he stated that in the intervening
E night of April 2 and April 3, 1988, he along with few other
persons were waiting in the temple for Jagran. A-3 came to the
temple at about 3 to 3.15 AM. and after having a look at the
place, he left immediately. After about 10-15 minutes, A-3
f
returned alongwith 15-20 other persons. Those persons were
F known to him as they belonged to the same village. A-3 and
the other persons accompanying him were holding weapons ,.
like iron bars, sticks, rods, swords and they started assaulting
those who were present in the Sabhamandap. A-2 and A-3
were holding iron bars and they assaulted him on his back. He
G managed to.escape from the said place and went towards
village and while going he saw that A-1, A-2, A-_3, A-4, A-12,
A-13 and A-18 were armed with weapons.

38. PW-4 has also narrated the incident in a similar way.
According to him, in the intervening night of April 2 and April
H 3, 1988, while he was sitting in the Sabhamandap, he was
- l

PANDURANG CHANDRAKANT MHATRE & ORS. v. 89
STATE OF MAHARASHTRA [R.M. LODHA, J.]

r' assaulted on his head from the back side. He fell down and A
--<.
' immediately went away. He stated that while going, he saw that
A-12 was having the sword with him while A-3 was having an
iron bar. A-8 and A-9 were holding sticks.

39. PW-5 is another injured eye-witness. He stated that he
B
,,,' saw A-12 giving sword blow to PW-8 and A-10 giving Pharshi
blow to Gopal Thakur. He stated that A-2 gave iron bar blow
--f to him near his waist. He deposed that he immediately rushed
to Nhava Sheva Police Station and asked the police to visit the
place of incident. The fact that he reached Nhava Sheva Police
c
Station at 4.15 A.M. is corroborated by the station diary entry
: (Exh. 57).

40. PW-7 deposed that A-2, A-3 and A-12 assaulted
Suresh Atmaram Gharat. He also deposed that A-12 was
~
having sword with him and he saw deceased Suresh Atmaram D
Gharat being assaulted by these accused persons. According
to him, A-10 and A-13 gave pharashi blow from reverse side
on his right thigh and ran away from the place.

41. Yet another eye-witness is PW-8. According to him A-
E
2 gave iron-bar blow while A-12 gave a blow with sword on his
head. When he tried to run away, A-2 held him and A-1 and A-
3 gave blow on his back with iron bar. He deposed that A-3
caught hold of Suresh Atmaram Gharat and A-12 assau!ted him
with sword. That he sustained multiple injuries is seen from Ex-
19. He remained indoor patient at Sion Hospital from April 3, F
1988 to April 5, 1988.

...
i
42. PW-9 has deposed that A-12 was holding sword and
he saw A-2, A-3, A-11 and A-12 assaulting Suresh Atmaram
Gharat. Although his name is not mentioned in the FIR, but his G
statement under Section 161, Cr.r.c. was recorded at the first
available opportunity on April 3, 1988.

43. PW-10 deposed that he saw A-1, A-2 and A-3 giving
iron-bar blow to PW-2. He also deposed that A-1, A-2, A-10,
H
90 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A A-11, A-12, A-13. and A-17 assaulted the deceased. His 'i
evidence is silent about the details of the incident. However, he r
also seems to have suffered a couple of simple injuries as is
J'
seen from Medical Certificate (Exh. 51 ).

44. As a matter of fact, the evidence of these eye-witnesses
B
is broadly corroborated by the medical evidence in respect of )
the deceased as well as the injuries sustained by them. PW-
11, Medical Officer at Uran Dispensary examined PW-2, PW-
7 and PW-10 and the injuries sustained by these witnesses is,
accordingly, proved by the evidence of PW-11. Insofar_ as
c injuries sustained by PW-6, PW-3, PW-4 and PW-8 are
concerned, the injury reports, namely, Exhibit-87, Exhibit-88,
Exhibit-89 and Exhibit-90 support their version. It does not
appear from the record that the accused persons questioned
the correctness of Exhibit-87, Exhibit-88, Exhibit-89 and Exhibit- ,._
D 90.

45. In Muthu Naicker and Others vs. State of Tamil Nadu32 ,
this Court held that where an occurrence takes place involving
rival factions, it is but inevitable that the evidence would be of
E a partisan nature and rejection of such evidence on that ground
may not be proper. This Court put a word of caution that such
evidence needs to be examined with utmost care and caution.
f
This is what this Court said :

F
"6. Where there is a melee and a large n.umber of ,.
assailants and number of witnesses claim to have
witnessed the occurrence from different places and at
different stages of the occurrence and where the evidence
as in this case is undoubtedly partisan evidence, the ..J

distinct possibility of innocent being falsely included with
G guilty cannot be easily ruled out. In a faction-ridden society
where an occurrence takes place involving rival factions it
is but inevitable that the evidence would be of a partisan
nature. In such a situation to reject the entire evidence on
32. (1978) 4 sec 385
H
PANDURANG CHANDRAKANT MHATRE & ORS. v. 91
STATE OF MAHARASHTRA [R.M. LODHA, J.]

the sole ground that it is partisan is to shut one's eyes to A
r' the realities of the rural life in our country. Large number
/ of accused would go u~unished if such an easy course
is charted. SimultaneOU$ ~· it is to be borne in mind that in
a situation as it unfolds in the case before us, the easy
tendency to involve as many persons of the opposite B
faction as possible by merely naming them as having been
seen in the melee is a tendency which is more often
discernible and is to be eschewed and, therefore, the
-{
evidence has to be examined with utmost care and caution.
It is in such a situation that this Court in Masalti v. State of c
U.P.(AIR 1965 SC 202) adopted the course of adopting
~
a workable test for being assured about the role attributed
to every accused. To some extent it is inevitable that we
should adopt that course."

46. In the case of State of U.P. v. Balfabh Das and D
i
Others 33 , this Court held that evidence of interested witnesses
may be relied upon if such evidence is otherwise trustworthy.
This Cou'rt said :

"3 ........... What the law requires is that where the E
witnesses are interested, the court should approach their
evidence with care and caution in order to exclude the
~
possibility of false implication. We might also mention that
the evidence of interested witnesses is not like that of an
approver which is presumed to be tainted and requires F
.corroboration but the said evidence is as good as any other
evidence. It may also be mentioned that in a faction-ridden
village, as in the instant case as mentioned by us earlier,
it will really be impossible to find independent persons to
come forward and give evidence and in a large number of
G
.... such cases only partisan witnesses would be natural and
probable witnesses. This Court .in Badri v. State of
' U.P.(AIR 1975 SC 1985) made the following observations:

33. (1985) 3 sec 103
H
92 SUPREME COURT REPORT~ [2009] 15 (ADDL.) S.C.R.

A [AIR Headnote] (SCC p. 616, para 6)
~

In case where a murder takes place in a village "
where there are two factions bitterly opposed to
each other, it would be idle to expect independent
persons to come forward to give evidence and only
B
partisan witnesses would be natural and probable
witnesses to the incident. In such a case, it would
not be right to reject their testimony out of hand "'
merely on the ground that they belonged to one
'r
faction or another. Their evidence has to be
c assessed on its own merits

4. ······· ""'"
5. The dominant question to be considered in the instant
D case is whether the witnesses, despite being interested,
have spoken the truth and are creditworthy. Once it is found
'r
by the court, on an analysis of the evidence of an interested ,.-
witness that there is no reason to disbelieve him then the
mere fact that the witness is interested cannot persuade
the court to reject the prosecution case on that ground
E
alone."

47. A similar view has been echoed by this Court. in State
of U.P. v. Ram Swarup and Others 34 wherein this Court held :
I
)-
F " ........... There is no rule of law to the effect that the i

evidence of partisan witnesses cannot be accepted. The
fact that the witnesses are associated with the faction
opposed to that of the accused by itself does not render
their evidence false. Partisanship by itself is no ground for
discarding sworn testimony. Interested evidence is not
G
necessarily false evidence. In a small village like the one ....
under consideration where people are divided on caste
basis, the prosecution may not be able to get any neutral
"
34. 1988 (Supp) sec 262
H
)

,
(
PANDURANG CHANDRAKANT MHATRE & ORS. v. 93
STATE OF MAHARASHTRA [R.M. LODHA, J.]

witness. Even if there is any such neutral witness, he will A
¥
be reluctant to come forward to give testimony to support
,,
one or the other side. Therefore, merely because the
eyewitnesses are associated with one faction or the other,
their evidence should not be discarded. It should, no doubt,
be subjected to careful scrutiny and accepted with B
caution."

48. From the prosecution case, it is clear that the incident
1
took place between the two rival political factions and that all
eye-witnesses (except PW-3 and PW-6) belong to victim party.
In a way, therefore, PW-2, PW-4, PW-5. PW-7, PW-8, PW-9
c
' and PW-10 can be stamped as interested witnesses. PW-6 has
deposed that the deceased was son-in-law of his eldest brother
and to that extent he is also an interested witness. In the light
of legal position noticed above before relying upon testimony
{ of these witnesses, adequate assurance from other D
---t
circumstances or materials is required to be seen. The

-- (

I
I
evidence of such witnesses has to be examined with great care
and caution to obviate possibility of false implication or over-
implication.
E
49. In cases involving rival political factions or group
enmities, it is not unusual to rope in persons other than who
~ were actually involved. In such a case, court should guard
~ against the danger of convicting innocent persons and
t scrutinise evidence carefully and, if doubt arises, benefit should F
be given to the accused.
i
50. A critical examination of the evidence of PW-2, PW-
3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-10 would show
-~
that their presence at the time of incident cannot be doubted.
-----c G
Most of them got injured in the incident. PW-2 has named A-1,
A-2, A-3, A-4, A-12, A-13 and A-18 being armed with the
weapons. He has not spoken of any assault by them on the
person of the deceased. PW-3 has spoken of the presence of
A-2, A-3 and A-12. According to him, A-12 gave sword blow
on his head and A-2 and A-3 gave blows by iron- bar on his H

---(
94 SUPREME COURT REPORTS [2009] 15 (ADDL.) $.C.R.

A back. PW-3 has also not deposed of any actual assault by these ~
accused persons on the deceased. Insofar as PW-4 is
")
concerned, he has spoken about the presence of A-3, A-8, A-
9, A-12 and A-19. He has also not stated about the attack by
these persons on the deceased·. PW-5 has stated about the
8 presence of A-2, A-10 and A-1r He did state about the injury
caused by A-2 on his waist. According to him, A-12 attacked
PW-8 and A-10 caused pharshi blow on Gopal Thakur. PW-6
deposed that f-1, A-2, A-3, A-4 and A-12 chased the 'r
deceased; A-12 was armed with sword while others were
c armed with iron bars and all of them started attacking. the ,.,.
deceased with their respective weapons in their hands. He also
deposed about the injury caused to him by A-3, A-9 and A-12.
PW-7 has stated about the assault by A-2, A-3 and A-12 on
the deceased and by A-10 and A-13 on him. PW-8 has stated '
that A-3 caught hold of the deceased and A-12 assaulted him
D }
(deceased) with sword. He has also stated that A-1, A-2 caught
hold of him (witness) and A-1 and A-3 gave blow on his back
with iron bar. PW-10 deposed that A-1, A-2, A-10, A-11, A-12, ..._
f
A-13 and A-17 assaulted the deceased and A-1, A-2 and A-3
gave blow by iron bar to PW-2. The testimony of these
E witnesses is corroborated from the medical evidence.

51. Section 149 IPC creates a specific and distinct
j_'
offence. Its two essential ingredients are : -
(i) commission of an offence by any member of an \:o-
F ~
unlawful assembly and;
~
(ii) such offence must have been committed in
prosecution of the common object of that assen·,;;,y
~
or must be suc.h as the members of thc:t assembly
G knew it be likely to be committed.

52. In Masalti vs. State of U.P. 35 , this Court exposited:

35. (1964) 8 SCR 133
H
PANDURANG CHANDRAKANT MHATRE & ORS. v. 95
STATE OF MAHARASHTRA [R.M. LODHA, J.}
" ....... What has to be proved against a person who is A
I
r alleged to be a member of an unlawful assembly is that
he was one of the persons constituting the assembly and
he entertained along with the other members of the
assembly the common object as defined by Section 141
IPC Section 142 provides that whoever, being aware of B
facts which render any assembly an unlawful assembly,
intentionally joins that assembly, or continues in it, is said
to be a member of an unlawful assembly. In other words,
an assembly of five or more persons actuated by, and
entertaining one or more of the common object specified c
by the five clauses of Section 141, is an unlawful assembly.
The crucial question to determine in such a case is whether
the assembly consisted of five or more persons and
whether the said persons entertained one or more of the
common objects as specified by Section 141. While
0
determining this question, it becomes relevant to consider
whether the assembly consisted of some persons who
were merely passive witnesses and had joined the
assembly as a matter of idle curiosity without intending to
entertain the common object of the assembly ..... "
E
53. The legal position laid down in Masalti admits of no
qoubt and has been followed time and again. However, where
a large number of persons are alleged to have participated in
the crime and they are sought to be brought to book with the
aid of Section 149 IPC, this Court has applied rule of caution F
taking into consideration particular fact-situation and convicted
those accused whose presence was clearly established and
overt acts were proved.

54. In Shere And Ors. vs. State of U.P3 6 , this Court held: G

" ......... But when there is a general allegation against a
large number of persons the Court naturally hesitates to

36. 1991 Supp. (2) sec 437
H
96 SUPREME COURT REPORTS [2009] 15 (ADDL.) $.C.R.

A convict all of them on such vague evidence. Therefore we
have to find some reasonable circumstance which lends )
assurance. From that point of view it is safe only to convict
the abovementioned nine accused whose presence is not
only consistently mentioned from the stage of FIR but also
B to whom overt acts are attributed ..... "

55. In Musa Khan & Ors. vs. State of Maha'(ashtra 37 , this
Court observed:
...
" ........ Thus a court is not entitled to presume that any and
C every person who is proved to have been present near a
riotous mob at any time .or to have joined or .left it at any
stage during its activities is in law guilty of every act
committed by it fro~ the beginning to the end, or that each 1
member of such a crowd must from the beginning have
D anticipated and contemplated the nature of the illegal
activities in which the assembly would subsequently ~
indulge. In other words, it must be proved in each case that
the person concerned was not only a member of the
unlawful assembly at some stage, but at all the crucial
E stage.s and shared the common object of the assembly at
all these stages ................."

56. In Nagarjit Ahirvs. State of Bihaf3 8 , this Court applied
rule of caution and in the facts and circumstances of the case./
held that it may be safe to ~onvict only those persons against
F whom overt act is alleged with the aid of Section 149, IPC lest
some innpcent spectators may get' involved.

57. In Maranadu And Anr. vs. State by Inspector of PolicP,
Tamil Nadu39, this Court for determination of 'common ou1ect'
G of unlawful assembly stated the legal position thus:
;;> ;

37. (1977) 1 sec 733
38. (2005) 10 sec 369
·. H 39. (2008) 16 sec 529
PANDURANG CHANDRAKANT MHATRE & ORS. v. 97
STATE OF MAHARASHTRA [R.M. LODHA, J.]

" ........ For determination of the common object of the A
unlawful assembly , the conduct of each of the members
of the unlawful assembly, before and at the time of attack
and thereafter, the motive for the crime, are some of the
relevant considerations. What the common object of the
unlawful assembly is at a particular stage of the incident B
is essentially a question of fact to be determined, keeping
in view the nature of the assembly, the arms carried by the
members, and the behaviour of the members at or near
the scene of the incident. It is not necessary under law that
in all cases of unlawful assembly, with an unlawful common c
object, the same must be translated into action or be
successful. Under the Explanation to Section 141, an
assembly which was not unlawful when it was assembled,
may subsequently become unlawful. It is not necessary that
the intention or the purpose, which is necessary to render 0
an assembly an unlawful one comes into existence at the
outset. The time of forming an unlawful intent is not
material. An assembly which, at its commencement or
even for some time thereafter, is lawful, may subsequently
become unlawful. In other words it can develop during the E
course of incident at the spot eo instanti."
'
58. Having carefully examined the testimony of eye-
twitnesses. we find that prosecution has been able to establish
that party of assailants comprised of more than five persons
and that they formed unlawful assembly. It is also seen from the F
evidence that at least five persons chased the deceased and
then attacked him. These members of the unlawful assembly
who chased and attacked the deceased definitely shared
common object of causing murder of Suresh Atmaram Gharat.
A-1 had died during pendency of the appeal before High Court G
• and, therefore, nothing further needs to be said about his role.

59. The High Court in para 36 of its judgment observed
that common object of the said unlawful assembly was to cause
grievous hurt. A little later in para 37, the High Court held that H
98 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A common object of the unlawful assembly was to make
murderous attack on the deceased. At first blush, there seems ,
to be some inconsistency in the judgment but on a deeper
scrutiny, we find that it is not so. It is well-known that for
determination of common object of the unlawful assembly, the
B conduct of each of the members of the unlawful assembly
before and at the time of attack is of relevant consideration. At
a particular stage of the incident, what is object of the unlawful
assembly is a question of fact and that has to be determined
keeping in view the nature of the assembly, the arms carried ~
c by the members and the behaviour of the members at or near
the scene of incident. The accused persons (nineteen in
number) armed with deadly weapons came to the scene of
occurrence sharing the common object of causing grievous hurt
to the victim party. A closer scrutiny of evidence shows that A-
D 2, A-3, A-4, A-5, A-6, A-10, A-11 and A-12 assaulted the
prosecution witnesses - some of them sustained grievous ~
injuries - and the deceased. However, when the deceased and
prosecution witnesses ran helter and skelter, at least five
members of the unlawful assembly chased the deceased and
E they attacked him with the weapons in their hand. The purpose
and design of these members of unlawful assembly in chasing
Suresh Atmaram 9harat and a murderous assault by them on
him may not have been shared by other members of unlawful
assembly. In a case such as the present one, although having ""
regard to facts, the number of participants could not be less
F than five, it is better to apply rule of caution and act on the side
of safety and convict orily A-2, A-3, and A-12 under Section 302
read with Sect:cm 149 l.P.C whose presence as members of
party of assailar.ts is consistently mentioned and their overt acts
in chasing and ::;;:;saulting the deceased are clearly proved. A-
G 4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard
to offence under Section 302 read with Section 149 l.P.C. since
..evidence against them in chasing and assaulting the deceased 1
is not consistent. However, all the eight appellants are guilty of
the offences punishable under Section 148 and Section 326
H
PANDURANG CHANDRAKANT MHATRE & ORS. v. 99
STATE OF MAHARASHTRA [R.M. LODHA, J.]
read with Section 149, l.P.C. This is proved beyond doubt and A
i the High Court cannot be said to have erred in holding so.

·so. In what we have already discussed above, we see no
merit in the plea of alibi set up by A-2. The plea of alibi set up
by A-2 was not even accepted by the trial court. The presence
B
of A-2 in the incident is established. He has been identified
holding the iron bar. The prosecution witnesses have given
,
specific involvement of A-2 in the incident. On the basis of the
"'1 deposition of some of the eye-witnesses, the evidence of OW-
1 cannot be said to have been wrongly rejected by trial court
as well as by High Court. In cross-examination, DW-1 admitted
c
that there was no supervisor at night on that date. Insofar as,
document Article-8 is concerned, suffice it to observe that
original document was not produced and name and designation
of the officer who is said to have signed the said certificate was
not disclosed nor the person who issued the certificate was D
produced. As a matter of fact, plea of alibi has not at all been
probabilised by A-2 much less proved.

61. Although, on behalf of the appellants it was sought to
be argued that there was tack of tight on the day of occurrence E
and, therefore, it was not possible for the witnesses to see the
incident. However, from the prosecution evidence it is clearly
established that the temple was illuminated due to annual fair
and there were other lights at the temple. It was full moon night.
We find it difficult to accept the submission of the appellants F
that there was not enough light at the place of incident and,
therefore, the incident could not have been seen.

62. On behalf of appellant no. 8 (A-12), it was contended
that site plan of the scene of offence could not have been
accepted as PW-1 deposed that he prepared the sight map G
as per the information supplied by the police. The contention
is devoid of any substance. As a matter of fact, no objection
was raised when the said document was being exhibited.
Moreover, the investigating officer has not at all been cross-
H
100 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A examined in this regard. The decisions namely Ramratan40 and
others v. State of Rajasthan, ·Chhotu vs. State of Haryana41 ~

have no application in the facts of the present case.

63. It was· contended that the High Court was not justified
in interfering with. th~ judgment of acquittal as the view taken
B
by the trial court was the possible view: Reliance, in this
connection, was placed on a recent decision of this Court in
Mahtab Singh & Anr. v. State of U,'P 2 • The argument is only
noted to be rejected. The viewwhich the trial court took on the
basis of the evidence on record is neither possible nor
c plausible.- There could not be ·more perversity in the
consideration of the evidenc~ of eye-witnesses by the trial court
when it observed :

" .... :.... All the witnesses deposed that they were lying or
D chit-ch~tting or ju~t ~esting or playing cards in the t~mple
at the time of the mc1dent. It has also come on record that
after the function was over at about 1.00 a.m. the
prosecution witnesses remained in ttle temple for the
purpose of 'Jagran'. All this shows that the prosecution
E witnesses .must not be in a position to see who actually
assaulted them. This is a broad picture that is projected
by the evidence of all the eye witnesses. In such state of
physical and mental tiredness, no witness will be able to }
tell specifically who actually assaulted him unless he sees
from a very short or negligible distance, the attacking
F
persons. Same thin can be said about the attack on
Suresh Atmaram Gharat who is reported dead because
of the incident. The evidence regarding assault on him is
not at all specific. It is in short the evidence of all the
prosecution witnesses that Suresh Atmaram Gharat ran
G
from the temple with the fear of his life and he was chased

40. (1962) 3 SCR 590
41. (1996) sec Crl. 1161
H 42. JT (2009) (5) SC 431
PANDURANG CHANDRAKANT MHATRE & ORS. v. 101
STATE OF MAHARASHTRA [R.M. LODHA, J.]
by the accused and was attacked at some distance near A
1 Uran Panvel road from the temple. It is an -admitted
position that it was night time. It is also proved fact that
Suresh was caught by the accused at a considerable
distance from the temple. None of the witnesses saw the
attack on Suresh, by the accused from a short distance 8
say of about 5' to 1O'. This is natural because every
prosecution witness was engaged and worried about his
own life. So it is but natural that every witness should be
-< running to safeguard his own life first and when he is in
such state of mind, it is not at all possible to specify which c
accused gave blows to Suresh Atmaram Gharat on what
part of his body and with what weapons."

64. With regard to evidence of PW-3 and PW-6, we have
already noticed the reasoning of trial court in the earlier part of
~ our judgment and, in our judgment, consideration of their D
evidence by the trial court was not proper.

65. The least that can be said is that the whole approach
of the trial court in consideration of the evidence of eye-
witnesses was faulty and flawed. We have independently E
examined the evidence for our satisfaction and we find that the
judgment of the trial court acquitting all the accused persons
~ suffered from factual and legal errors justifying interference by
the High Court in appeal within permissible limits.

66. In the result and for the reasons stated, the appeal is F
allowed in part. The conviction of Pandurang Chandrakant
Mhatre (A-2), Ramesh alias Raman Chandrakant Mhatre (A-
3) and Maninath Shankar Gharat (A-12) for the offence
punishable under Section 302 read with Section 149, IPC and
the sentence awarded to them by the High Court to suffer G
~ imprisonment for life is maintained. The conviction of
Parshuram Chandrakant Mhatre (A-4), Ashok Yadav Mhatre (A-
5), Damodar Vasant Gharat (A-6), Ramchandra Raghunath
Mhatre (A-10) and Mahesh Sha11kar Mhatre (A-11) for the
offence punishable u11der Section 302 read with 149, IPC is H
. _
102 SUPREME COURT REPORTS [2009] 15 (ADDL.) S C.R.

A set aside. The conviction of the appellants under Section 148
and Section 326 read with Section 149 IPC is upheld. The
sentence awarded. to them under Section 148 IPC is
maintained. However, substantive sentence for the offence
punishable under Section 326 read with Section 149 IPC is
B modified and each one of them is sentenced to suffer RI for
three years. The substantive sentences shall run concurrently.
The bail bonds of A-4. A-5. A-6, A-10 and A-11 are cancelled.
They will now surrender within one month and undergo
remaining part of the sentence. if any.
c N.J. Appeal partly allowed.