( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 265 OF 1997 1. Dnyanoba s/o Kashinath Mundhe, R/o Warwati, Taluka Ambajogai, District Beed. 2. Ashruba s/o Dnyanoba Mundhe, R/o as above. 3. Maroti s/o Dnyanoba Mundhe, R/o as above. 4. Viswanath s/o Kashinath Mundhe, R/o as above. 5. Dnyanoba s/o Angad Mundhe, R/o as above. 6. Madhukar s/o Udhav Mundhe, R/o as above. APPELLANTS VERSUS The State of Maharashtra RESPONDENT ..... Mr. H.K. Munde, advocate for the appellants. Mrs. R.D. Reddy, APP for the respondent/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 12th August, 2009] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned Additional Sessions Judge, ( 2 ) Ambajogai, in Sessions Case No. 25/1995 whereby the appellants have been convicted for offences punishable under section 325 read with section 149 of the I.P. Code, section 504 read with section 149 of the I.P. Code and section 147 of the I.P. Code. They have been sentenced to suffer rigorous imprisonment for two (2) years and to pay a fine of Rs. 200/- each, in default to suffer one month’s rigorous imprisonment on the first count and rigorous imprisonment for three (3) months and to pay a fine of Rs. 100/- each, in default to suffer rigorous imprisonment for one (1) week, on second count. No separate sentence was awarded for offence under section 147 of the I.P. Code. 2. The prosecution case, stated briefly, was that there was civil litigation between injured complainant Sudam Kashinath Mundhe and the appellants. He is the real brother of the appellant No. 1 and appellant No. 4. The appellant Nos. 2 and 3 are sons of the appellant No. 1. The appellants No. 5 and 6 are closely related to them. The civil litigation about the agricultural land was then pending in the Court. The incident giving rise ( 3 ) to the prosecution occurred in the early morning of 15-01-1994 while injured complainant PW Sudam was proceeding towards the village locality from his farm- house. He and his son (PW Kundlik) reached a place near a brooklet on Sakud-Warwati road at about 6 a.m. while they were on way towards their native village i.e. Warwati. The appellants intercepted them. The appellant No. 1 – Dnyanoba urged other appellants to catch hold up the complainant – PW Sudam, saying that he was not leaving possession of the agricultural land. The appellant No. 1 instigated the other appellants to cut him. Immediately, the appellant No. 1 gave blow of a stone on the calf of the injured complainant and, therefore, he fell down. The appellant No. 2 Ashruba then gave a blow of knife on the head of injured complainant – PW Sudam. The other appellants also assaulted him by means of sticks and stones, etc. The appellant No. 4 Vishwanath threatened that he shall be placed on stack of fodder and should be burnt away. His son Kundlik was also assaulted and injured by them. He screamed for help. Therefore, his another son by name Mahadeo, wife Sitabai and two (2) dogs came running ( 4 ) towards the place. So also, some villagers were seen coming running from the village locality. On seeing them, the appellants fled away from the place. Another son of injured PW Sudam, namely, PW Mahadeo gave telephonic information to the police. The injured complainant PW Sudam and his son Kundlik were shifted to S.R.T.R. Medical College Hospital at Ambajogai in the police jeep which arrived after some time. Both of them were clinically examined and treated in the said hospital. His statement was recorded and was treated as F.I.R. The police conducted certain investigation into the crime No. 26/1994 registered on the basis of the F.I.R. lodged by injured complainant Sudam. The blood stained clothes of injured PW Sudan and injured PW Kundlik were seized under separate panchanamas. On basis of material collected during the course of investigation, the appellants were chargesheeted for offences punishable under section 147, 148, 504, 307 read with section 149 of the I.P. Code. 3. At the trial, the appellants pleaded not guilty. Their defence was that complainant PW Sudam was ( 5 ) in habit of giving false reports of initiating unfounded criminal cases against them as well as other persons in the village. They submitted that the civil litigation was decided against the complainant – PW Sudam and, therefore, in order to pressurize them, to give up claim in respect of the agricultural land in question, he had lodged a false report against them. It was suggested that an incident of dacoity and house breaking had taken place in the earlier night and probably, the complainant – PW Sudam and his sons were victims of such dacoity, but they utilized the incident of receiving some injuries so as to frame the appellants in a false case. Hence, they sought acquittal from the charges. 4. The prosecution adduced oral and documentary evidence in support of its case. In all thirteen (13) witnesses were examined by the prosecution. The learned Sessions Judge held that the attempt to commit culpable homicide was not proved. The learned Sessions Judge, however, came to the conclusion that the appellants had formed an unlawful assembly at the relevant time with common object to cause grievous hurt to the complainant ( 6 ) PW Sudam in the relevant morning. The learned Sessions Judge also held them guilty for offence of intentional insult with intent to provoke breach of the peace and that of rioting. Consequently, they have been convicted and sentenced as described hereinabove. 5. Mr. Munde, learned advocate appearing for the appellants, would submit that the prior enmity between the complainant PW Sudam and his brothers is the cause of false prosecution against the appellants. He would submit that the versions of complainant PW Sudam and injured PW Kundlik are uncreditworthy. He contended that the F.I.R. (Exh-56) was lodged at about 3 p.m. whereas telephonic message was given to the police in the morning and, therefore, the police statement of the complainant PW Sudam could not have been regarded as the F.I.R. He contended that cross-examination of complainant PW Sudam has exposed his litigating and complaining nature. He contended that the learned Sessions Judge did not properly appreciate the evidence of the prosecution. He would submit that the appellants ( 7 ) deserve benefit of reasonable doubt and, hence, urged to allow the appeal. Per contra, learned APP Smt. Reddy supports the impugned judgement. 6. The prosecution led ocular evidence of complainant – PW4 Sudam, PW7 Kundlik, who was injured during the incident and PW8 Mahadeo who is another son of the complainant and claimed to have arrived at the place after hearing his shouts. No doubt, they are closely related to each other being the father and sons. The prosecution did not adduce independent evidence except that of PW9 Sadashiv. He did not support case of the prosecution. He was declared hostile. Nothing of much significance could be gathered from his cross- examination. His version is of no avail to either side. It is obvious that the prosecution case depends on the credibility of the complainant and PW4 Sudam and his two sons i.e. PW7 Kundlik and PW8 Mahadeo. 7. Before I proceed to scrutinize the versions of the above three (3) witnesses, it may be stated that PW2 Pandit and PW3 Munjaji, who were examined as panch ( 8 ) witnesses, did not support the case of the prosecution. Both of them were examined as panchas of the spot panchanama (Exh-69). Their versions are of no avail to the prosecution or the defence. Nothing of significance could be gathered from their cross-examinations. So also, PW5 Shaikh Kalim and PW6 Shankar did not support case of the prosecution in respect of memorandum panchanama and seizure panchanama pertaining to recovery of knife at instance of appellant No. 2 Ashruba. They were also subjected to cross-examination at hands of the learned APP. No much significant material could be brought on surface of record through their cross- examination. Their versions have no bearing on the question of guilt in view of antipathy expressed by them towards the prosecution. Likewise them, PW12 Balasaheb @ Babasaheb is another hostile panch who did not support the seizure panchanama (Exh-71) under which blood stained clothes of injured complainant – PW Sudam were seized. 8. On consideration of the testimony of PW1 Dr. A.B. Deshmukh, it is amply clear that the complainant – ( 9 ) PW Sudam was clinically examined at the S.R.T.R. Medical College Hospital, Ambajogai in the same morning. The Medical Officer noticed as many as eleven (11) injuries on his person. They were : (i) Contused lacerated wound 3.2 x 1 cms occipital region; (ii) Contusion 4 x 2 cms on right upper arm; (iii) Contusion on left forearm 2 x 1 cm; (iv) Abrasion ½ x 1/4th cms over nose; (v) Contusion right chest 4 x 3 cms.; (vi) Contusion right forearm 3 x 2 cms.; (vii) Abrasion 2 x 2 cms. left knee medical aspect; (viii) Abrasion left knee anteriorly 2 x 1 cms.; (ix) Abrasion 2 x 1 cms left foot dorsum; (x) Abrasion 1 x ½ cm right ankle and (xi) Contusion right wrist 2 x 2 cms. According to PW Dr. A.V. Deshmukh, all the said injuries were caused by some hard and blunt object and the injury No. 3 i.e. contusion on left forearm was of grievous nature. He corroborated the medico-legal certificate ( 10 ) (Exh-9). His version purports to show that the said injuries could be caused by means of stick and stone which were shown to him being property articles No. 2 and 1, respectively. He also clinically examined PW Kundlik and noticed three (3) contusion injuries on his person. They were as follows : (i) Contused lacerated wound left front to parietal region 3 x 1 cms. (ii) Contusion 3 x 2 cms right thigh posteriorly. (iii) Contusion 3 x 2 cms left chest. The said injuries were of simple nature and were caused by some hard and blunt object within 24 hours of the examination. He corroborated the medico-legal certificate (Exh-52) in this context. His version reveals the injuries found on person of complainant – PW Sudam could not be possible due to fall in a ditch. Nothing of significance was elicited from his cross- examination so as to discredit his version. Thus, it is duly proved that the complainant – PW Sudam and his son i.e. PW Kundlik were found in an injured condition in ( 11 ) the relevant morning and there were multiple injuries noticed by the Medical Officer after their clinical examination within a short span of period after the incident. 9. Coming to the version of complainant – PW4 Sudam, it transpires that he and his son – PW Kundlik were proceeding towards the village locality in the relevant morning. He states that soon after they went ahead of brooklet, all the appellants obstructed their way and asked him how he had come into possession of the land. They told him that they will kill him. He states that immediately, the appellants started assaulting him. He narrated that the appellant No. 2 Ashruba inflicted a knife blow on his head, appellant No. 1 Dnyanoba gave a stick blow on his hand whereas the appellant No. 3 Maroti hit the stone at his hand and others slapped, hit him by means of stone and stick. His version purports to show that he made good escape and started running away but the appellants pelted stones on his person. They also mounted assault on his son – PW Kundlik. His son Kundlik started shouting and, therefore, another ( 12 ) son, namely, PW Mahadeo reached the place. His version purports to show that after some time, he and injured PW Kundlik were shifted to S.R.T.R. Medical College Hospital in a police jeep vehicle. His version further shows that his statement was recorded in the hospital vide F.I.R. (Exh-56). His blood stained clothes were seized by the police which he identified as articles No. 3 to 6. He admits that he had filed suit (R.C.S. No. 4/1985) for relief of perpetual injunction and it was decided against him. He admits that he had filed a criminal complaint against the appellants which ended in acquittal. He also admitted that he had filed some criminal cases against other persons and also a separate police report against appellant No. 4 Vishwanath. What appears from the tenor of the cross-examination is that the complainant PW Sudam was claiming possession of the land in question though his suit for injunction was dismissed by the Civil Court. Though he filed some criminal complaints against other persons and also previously had filed one complaint against the appellants, yet, such conduct of complainant PW Sudam, by itself, would not be sufficient to discredit him. ( 13 ) 10. The eye witness account tendered by complainant PW Sudam is duly corroborated by his immediate conduct of giving the statement shown under the F.I.R. (Exh-56). It is true that PW8 Mahadeo informed the police telephonically and, therefore, the police jeep arrived at the village. Both injured PW Sudam and PW Kundlik were rushed to the S.R.T.R. Medical College Hospital. The contention of the learned counsel Mr. Munde that the telephonic message could be the F.I.R. and not the police statement of complainant PW Sudam is, however, unacceptable. In “State of A.P. v. V.V. Panduranga Rao” (2009 AIR SCW 3489), the Apex Court held that a cryptic telephonic message of cognizable offence received by police would not constitute a FIR. It has been held that mere fact that the telephonic information was first in point of time does not by itself clothe it with character of FIR. The Apex court held : “Where the information is only one which required the police to move to the place of occurrence and as a matter of fact the ( 14 ) detailed statement was recorded after going to the place of occurrence, the said statement is to be treated as FIR. But where some cryptic or anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as FIR. The mere fact that the information was the first in point of time does not by itself clothe it with the character of FIR. The matter has to be considered in the background of Sections 154 and 162 of the Code of Criminal Procedure, 1973 (in short the “Code”). A cryptic telephonic message of a cognizable offence received by the police agency would not constitute a FIR.” 11. In view of the settled legal position mentioned above, it is difficult to countenance the argument advanced on behalf of the appellants about inadmissibility of the FIR (Exh-56). The statement recorded by the police at the hospital will have to be, therefore, regarded as FIR as contemplated under section 154 of the Criminal Procedure Code. 12. On close scrutiny of versions of PW7 Kundalik ( 15 ) (injured) and PW8 Mahadeo, it is explicit that the appellants together intercepted the complainant PW Sudam and PW Kundalik on their way to the village. It is the version of PW Kundalik that the appellant No. 1 instigated the other appellants to catch hold up the complainant, assault and kill him. It is true that the complainant himself does not refer to such kind instigation by the appellant No. 1 in the words as stated by PW Kundalik. There are minor discrepancies in the versions of complainant PW Sudam and injured PW Kundalik in the context of the manner of assault. However, their versions consistently indicated that both of them were intercepted on way and were subjected to beating by means of stones, sticks and knife. The minor variation in their versions are bound to occur due to lapse of about three (3) years’ period between the date of incident and their examination before the trial Court. I find that versions of the injured witnesses are duly corroborated by the medical evidence. It is well settled that injured witnesses are unlikely to allow the real culprits to go scot-free. It is very rare that an injured witness would attempt to falsely ( 16 ) implicate an innocent person though the offender is someone else. There is absolutely no corroboration to the defence story that the complainant – PW Sudam and his son might have received injuries due to incident of a dacoity, which allegedly occurred in the earlier night. 13. Mr. Munde also submitted that there could not be unlawful assembly because the appellants No. 5 and 6 had no concern with the civil dispute regarding the agricultural land. He would submit that there was no proof about common object of the appellants and, therefore, conviction for offence punishable under section 149 of the I.P. Code is improper. He would also submit that the complainant PW Sudam and the other two (2) witnesses, who are his sons, are closely related and, therefore, their interested versions should not be accepted. I do not agree. It may be noted that the incident occurred in the early morning and at a secluded place between the agricultural land in question and the village locality. The presence of all the appellants near the brooklet could not be a sheer coincidence. ( 17 ) Their common act of obstructing way of the complainant PW Sudam and PW Kundalik is indicative of the fact that they had formed unlawful assembly for common object. Further more, they were armed with sticks, stones and knife, etc. The appellant No. 1 then immediately started beating the complainant – PW Sudam and urged others to assault him. They too followed him without any hesitation. Needless to say, the common object of all the appellants is writ large from their actions. In “Bhupendra Singh and others v. State of U.P.” (2009 AIR SCW 3304), the Apex Court held that mere relationship is not a factor to affect credibility of a witness. The witness cannot be regarded as an interested witness only because he is related to the complainant. The Apex Court further succinctly clarified the concepts of “unlawful assembly” and “common object”. It is held that “common object” may be formed at any stage by all or a few members of the assembly. The expression “in prosecution of common object” does imply the acts committed in order to attain the common object. Thus, tested on touchstone of settled legal principles, it ( 18 ) must be held that the appellants were members of the unlawful assembly formed with a common object of causing grievous hurt to the complainant – PW Sudam in the relevant morning. 14. The versions of PW10 H.C. Bhagwat, PW11 H.C. Sk. Abbas and PW13 ASI Suryabhan Jadhav need not be elaborately discussed. They narrated about the steps taken during course of the investigation. Their versions go to corroborate the fact that the FIR was lodged in the relevant noon and that blood stained clothes of injured complainant PW Sudam were seized under the panchanama. The version of ASI Suryabhan Jadhav further shows that the knife was recovered at instance of the appellant No.2. The learned Sessions Judge has duly considered the circumstances appearing from their versions. The learned Sessions Judge, however, committed error while convicting the appellants for offences punishable under section 504 read with section 149 of the I.P. Code. There is no sufficient material to hold that complainant PW Sudam was insulted by the appellant with intention to cause provocation to him so as to ( 19 ) commit breach of the public piece. There is no proper reasoning appearing in the judgement under challenge, in this behalf. 15. For the reasons aforestated, I am inclined to hold that the conviction of the appellants for offence punishable under section 325 read with section 149 of the I.P. Code and for offence punishable under section 147 of the I.P. Code is legal and proper. The sentence awarded to them is also not excessive. The conviction for offence punishable under section 504 read with section 149 of the I.P. Code is, however, improper and liable to be interfered with. 16. In the result, the appeal is partly allowed. The impugned judgement of conviction and sentence to the extent of conviction for offence punishable under section 504 read with section 149 of the I.P. Code is set aside. The appellants are acquitted of the said offences and the sentence awarded to them in this context is set aside. The fine amount, if paid by the appellants for this offence, be refunded to them. The ( 20 ) remaining part of the impugned judgement of conviction and sentence is, however, maintained and the appeal is dismissed. The appellants shall surrender before the Sessions Court within period of four (4) weeks or else their presence may be secured by the Sessions Court so as to ensure that the remaining sentence is suffered by them. The Sessions Court shall give compliance report about the action taken in this behalf, prior to 22nd September, 2009. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL265-97