1 IN THE HIGH COURT OF BOMBAY, BENCH AT PANAJI-GOA. CRIMINAL APPEAL NO.71 OF 2007. APPELLANT: Nilesh Naik @ Mangueshkar, son of late Vishwanath Mangueshkar, r/o H.No.468/A, Odlem Bhat, Taliegao. ..VERSUS.. RESPONDENT : State of Goa, (through Public Prosecutor Panaji Police Station. CRIMINAL APPEAL NO.72 OF 2007. APPELLANT : Kamlesh Naik @ Mangueshkar, son of late Mukund Mangueshkar, r/o H.No.468/A, Odlem Bhat, Taliegao. ..VERSUS.. RESPONDENT : State of Goa, (through Public Prosecutor Panaji Police Station. =-=-=-===-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.Mr.Surendra Desai,Sr.Adv. with Mr.Nitin Sardessai, Adv. for the appellants. Mr.C.A.Ferreira, Public Prosecutor for the respondent. ==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 2 CORAM: C.L.PANGARKAR,J. DATE : 28/01/2009. ORAL JUDGMENT: 1. This is an appeal by accused nos.1 and 2, who were convicted for the offences punishable under Sections 324, r/w 34 of the Indian Penal Code by the Additional Sessions Judge, Panaji, even though they were charged under Section 307 of the Indian Penal Code. The accused have been sentenced to rigorous imprisonment for two years and fine of Rs.20,000/-. 2. The facts leading to this prosecution are as follows - On 22nd July, 2001, it is alleged that accused no.3 Sanjeev had stabbed the complainant Antonio. One Rajesh was also along with the accused Sanjeev. At that time the complainant had lodged the report of incident with the police. Upon investigation, the police have filed a charge-sheet against the accused no.3 Sanjeev and Sessions trial in respect thereof is pending before the Sessions Judge. Since then accused no.3 has 3 been persisting on the complainant to withdraw the said sessions case. He also used to give threat that if he does not, he will see him. It is further alleged that accused no.2 frequently used to accost the complainant and give such threats. 3. On 16/6/2003, the complainant Antonio along with his friends Neville Baretto and Dinesh Naik had gone to the hotel of one Ulhas. They went there around 9.45 a.m. While they were having tea, it is alleged that a blow was dealt on the head of the complainant and therefore, he turned back to see as to who has assaulted him. He found that it was Kamlesh – accused no.1, who is brother of accused no.3, who had wooden log (Danda) in his hand. Said Kamlesh dealt four blows on the head of the complainant. Dinesh asked accused as to why the complainant was being assaulted. Accused no.1 Kamlesh gave him threat and said that it was none of his business and charged at him. Dinesh, therefore, backed out. In the meanwhile, accused no.2 Nilesh took sword and attacked the complainant. He dealt six blows on 4 the person of the complainant. While the complainant tried to ward off the assault with his hand, he suffered cut injuries on the forehand. Thereafter, it is alleged that accused no.3 Gabba @ Sanjeev took out a revolver, pointed it at the complainant and threatened him to kill him. The complainant got scared and was about to run and it is Nilesh accused no.2, who gave blow of sword on his back. Accused No.3 instigated accused nos.1 and 2, to assault the complainant and brake his hand and leg. Accused no.1 Kamlsh once again dealt a blow of wooden log on the leg while accused no.2 Nilesh dealt a blow of sword on the leg. Thereafter, all of them went away in Maruti Zen car parked nearby. The owner of the hotel gave some Soda to the complainant and then Dinesh Naik brought the complainant to the Government Medical College and Hospital at Bambolim. The complainant was examined by the Medical Officer. He found injuries with sharp cutting weapons on the person of complainant and issued a Certificate to that effect. The complainant was also referred to Neuro Surgery Department. His 5 blood was collected. It is alleged that on 24/6/293 accused nos.1 and 2 surrendered before the court and were remanded to two-days custody. While in police custody, it is alleged that on 25/6/2003, accused no.1 and 2 both made a statement that they would show the weapons of the offence which they have concealed. Accordingly, memorandum was prepared. The accused led the police and panchas to the place where it is alleged that accused no.1 Kamlesh discovered the wooden log while accused no.2 Nilesh discovered the sword. Both were seized by the police. In the meanwhile, the police had drawn panchanama of the place of occurrence from where the pieces of broken glasses stained with blood were seized by the police. The weapons of offence and the pieces of glasses were later forwarded to the Forensic Science Laboratory and upon completion of the investigation, a charge sheet came to be filed before the Magistrate. The learned Magistrate committed the case to the court of Sessions. 4. The learned Additional Sessions Judge framed charge 6 under Section 307, 506,r/w 34 of the Indian Penal Code and 4 and 25 of the Arms Act. 5. The learned Sessions Judge recorded the evidence of witnesses and upon consideration of the evidence found accused no.3 not guilty of any offence with which he was charged. He was as such acquitted. The learned Additional Sessions Judge, however, found accused no.1 and 2 guilty of offence under Section 324 instead of Section 307 and sentenced them as stated earlier. 6. Being aggrieved by this order of conviction and sentence, accused nos.1 and 2 have preferred this appeal. 7. I have heard the learned counsel for the appellant/accused and the State and have perused the record. 7 8. The prosecution has examined as many as fifteen witnesses in the instant case. Out of them, PW 1 Antonio is the complainant. PW 2 Neville, PW 4 Dinesh, PW 5 Ujwala are said to be the eye witnesses. PW 3 is the panch on the spot panchanama, PW 6 is the real brother of the complainant (PW.7). The others are the panch witnesses, Medical Officer and the Investigating Officer. 9. The trustworthiness of the prosecution case has always to be tested on the touchstone of F.I.R. The learned counsel for the appellant/accused contends before me that in the instant case the FIR was lodged very late and there has been no explanation whatsoever from the prosecution. A need to lodge a report immediately has been emphasized by the courts, although in each and every case the delay may not be fatal. A more credibility is generally attached to an FIR which is lodged instantly and within a reasonable time but when there is a delay, the same kind of credibility cannot be attached to it. The 8 evidence of PW 1 Antoni shows that the incident in question had taken place at 9.45 a.m. The printed FIR ((Exh.PW.1/A)) shows that the F.I.R. was lodged at 18.00 hrs. i.e. 6.00 p.m. in the evening. There is thus a delay of almost ten hours. It appears from the evidence of PW 15 Ashish – the Inspector of Police - that upon instructions of P.I. Nigalye, he went to the hospital to record the complaint of Antonio. It is obvious that nobody had gone to the police voluntarily to lodge a report but report was taken down because police officers were to the hospital. The printed FIR Col.No.5-A shows that the spot of incident is only half a kilometer away from the police station. Further, the evidence of PW 1 Antonio shows that he had gone to the place of incident along with his friend Neville and Dinesh and they were all the while with him. PW. 1 Antonio claims that both these persons had witnessed the incident. He also mentions in the FIR that Dinesh had taken him to the hospital. Neither of these two persons had suffered injuries in the incident. There was, therefore, no difficulty at least for Neville to report the matter to 9 the police immediately. There was also no difficulty for even Dinesh to come to the police station after admitting Antonio to the hospital and submit a report or Dinesh could have given information to the police out-post in the government hospital where Antonio was admitted. This conduct of both these persons is far from natural. Besides this unnatural conduct, let us see if there is any explanation why no report was lodged at all till 18 hrs. If the evidence of these prosecution witnesses i.e. PW 1 Antonio and PW 2 Neville as well as PW 4 Dinesh is seen, the prosecution has not even tried to explain the delay through them. This too is very unnatural. At least one of them could have explained the delay in lodging the FIR as to why none of them ever could go to the police and inform the police about the incident. The only inference that can be drawn from this conduct is that either these two persons were not at all present or did not know anything or they have no explanation to offer why they did not go to the police station at all. Considering the gravity of the offence, the distance between the police station 10 and place of incident, and number of persons available to lodge the report, this delay has to be treated as serious lapse and in fact fatal. It is said that delay in lodging FIR quite often results in embellishment which is a creation of after thought. It looses its spontaneity and danger of coloured version and concocted story creeps in. In this back ground, the learned Senior Counsel Shri Desai for the accused/appellant invited my attention to the judgment in the writ petition No.19/2003 by the Goa Bench. This writ petition was filed by the wives of the accused, who were facing trial. It was alleged in this writ petition that the police officers investigating this crime had paraded the three accused half naked in their village at the behest of the Minister. Although the court has not opined as to whether the Minister was at all concerned with the incident but it is certainly held that the accused while in custody in this crime were paraded half naked with handcuffs. I quote here the observations made by the court in paragraph nos.19 to 21. 19. In the case of Fattuji v. The Superintendent of Police, Akola and Ors. (2002 11 ALL MR (Cri) 107), A Division Bench of this court dealt with the death of an accused in custody and directed the State to compensate the children of the deceased in the sum of Rs.1,75,000/- and further directed the State not only to take disciplinary proceedings against the Police Officers, who were found responsible for the death of the said accused Suresh Fattuji Gedam, while in police lock-up but also to prosecute them for having committed offence to which they may be found guilty in the course of investigation by handing over the investigation of the case to an Officer of the rank of D.I.G. Police or above. The court also directed action to be initiated against all those Police Officers, who were on duty at the Police station during the time when the deceased was arrested and till his death. In the case of Shobha Anil Londase v. State of Maharashtra and Ors. (2003 ALL MR (Cri) 1491, another Division Bench of this Court, to which one of us were parties (R.M.S.Khandeparkar, J.) also dealt with custodial death and ordered compensation to be paid in the sum of Rs.3,00.000/- to the 12 petitioner being the husband of the said accused within a period of six weeks and to file compliance report. The Court also directed to hold necessary inquiry to fix up responsibility to contribute the said compensation and ordered to take necessary steps in accordance to the provisions of law to recover the same from those persons and further directed compliance report to be filed within a time prescribed. This court also directed to initiate necessary proceedings against all the persons responsible for the custodial death of the husband of the petitioner namely Anil Londase and to take legal action against those persons and directed that compliance report be filed within the stipulated time. 20. In the last two cases, referred to herein above, this court followed the principle laid down by the Apex Court in Nilabati Behera v. State of Orissa (AIR 1993 (2) S.C.C. 746), that enforcement of constitutional right and grant of redress embraces award of compensation as part of legal consequences of its contravention 13 and award of compensation is a remedy available in public law, based on strict liability for contravention of fundamental rights. 21. In the case at hand, although respondent nos.1 to 3 came to the conclusion, on an inquiry report submitted by the Sub-Divisional Police Officer, that there were certain lapses on the part of the police and, accordingly, transferred all the six Police Officers/Officials, nothing happened as far as the disciplinary proceedings ordered to be initiated against P.S.I. Rajan Nigalye and P.I. Salim Shaik and it has been alleged by the petitioners that in spite of the said Order to initiate disciplinary proceedings, at one stage, P.S.I. Rajan Nigalye was promoted and then again reverted. The handcuffing of the said two accused has been admitted. The reasons assigned for the said handcuffing cannot at all be accepted and they are only accuse to justify the actions of respondent nos. 4 to 6 and the parading of the said two accused in handcuffs, which was done only to humiliate them. We, therefore, direct the respondent 14 State to compensate each of the said two accused for violation of their human rights and consequent humiliation meted out to them by parading them in handcuffs, in the sum of Rs.15000/- each. We further direct respondent no.3 to file a compliance report within a period of six weeks from today, as regard payment of compensations. We direct the respondent State to hold and complete the disciplinary proceedings against respondent nos.4 to 6, Police Officers, within a period of six months from today and file compliance report within two weeks thereafter. Respondent State will be at liberty to recover the said compensation from respondent nos. 4 to 6 as deem fit and in accordance with law. We make it clear that no observations made herein will come in the way of prosecution of the said accused in Crime No.96/03. In view of the above, Rule is made absolute int terms of above directions with costs of rs.5,000/-. 15 Now from this observations of the High court, it is very much clear that everything was not normal during the course of the investigation and the police officers had gone out of the way. This fact cannot be lost sight of while considering the evidence. It appears that one hide out panchanama (disclosure panchanama) was prepared by the police. One wonders why this panchanama at all was prepared. What is sought to be proved under this panchanama is the place where the accused had allegedly hidden themselves. This appears to be a very strange conduct in the context of the above facts. This panchanama is dated 28/6/2003. It appears to me that the pachanama was prepared to overcome the difficulty in explaining the presence of the accused persons out of custody on 28/6/2003 as it is alleged that they were paraded on 28th itself. Although it is not clear as to at whose behest the police did this, the fact remains that there is somebody behind it. There is, therefore, something more than meets the eye. 16 10. Further, the learned Senior Counsel Shri Desai submits that this report upon which FIR (Exh.PW.1/A) is registered could not be treated as an FIR at all. He submits that it is only the information first in time given to the police becomes an FIR and all subsequent reports or statements are attached to be treated as statement under Section 161 of Cr.P.C. 11. He relied on a decision reported in (2001)6 SCC 181 (T.T.Antony ..vs.. State of Kerala and ors.). The Supreme court has observed that - 21. The learned Solicitor-General relied on the judgment of this court in Ram Lal Narang v. State (Delhi Admn.) (referred to as “Narang case”) to contend that there can be a second FIR in respect of the same subject-matter. In that case the contention urged by the appellant was that the police had committed illegality, acted without jurisdiction in investigating into the second case and the Delhi Court acted illegally in taking cognizance of that (the second) case. A reference to the facts of 17 that case would be interesting. Two precious antique pillars of sandstone were deposited in the Court of Ilaqa Magistrate, Karnal, as stolen property. One N.N.Malik filed an application before the Magistrate seeking custody of the pillars to make in detail study on the pretext that he was a research scholar. It appears that the then Chief Judicial Magistrate of Karnal (H.L.Mehra), was a friend of Malik. At the instance of Mehra the said Ilaqa Magistrate ordered that the custody of the pillars be given to Malik on his executing a bond. About three months thereafter Malik deposited two pillars in the Court of Ilaqa Magistrate, Karnal. After some time it came to light that the pillars returned by Malik were not the original genuine pillars but were fake pillars. An FIR was lodged against both Malik and Mehra under Section 120-B read with Section 406 and 420 IPC alleging conspiracy to commit criminal breach of trust and cheating. CBI after necessary investigation filed charge-sheet in the Court of Special Magistrate, Ambala, against both of them. Ultimately on the application of the Public Prosecutor the case was permitted to be withdrawn and the accused were 18 discharged. Sometime later the original genuine pillars were found in London which led to registering an FIR in Delhi under Section 120-B read with Section 411 IPC, and Section 25(1) of the Antiquities and Art Treasures Act, 1972 against three persons who were brothers (referred to as “the Narangs”). The gravamen of the charge against them was that they, Malik and Mehra, conspired together to obtain custody of the genuine pillars, got duplicate pillars made by experienced sculptors and had them substituted with a view to smuggle out the original genuine pillars to London. After issuing process for appearance of the Narangs by the Magistrate at Delhi, an application was filed for dropping the proceedings against them on the ground that the entire second investigation was illegal as the case on the same facts was already pending before the Ambala Court, therefore, the Delhi Court acted without jurisdiction in taking cognizance of the case on the basis of illegal investigation and the report forwarded by the police. The Magistrate referred the case to the High Court and the Narangs also filed an application under Section 482 Cr.P.C. to quash the proceedings. 19 The High Court declined to quash the proceedings, dismissed the application of the Narangs and thus answered the reference. On appeal to this Court, it was contended that the subject-matter of the two FIRs and two charge-sheets being the same, there was an implied bar on the power of the police to investigate into the subsequent FIR and the Court at Delhi to take cognizance upon the report of such information. This Court indicated that the real question was whether the two conspiracies were in truth and substance the same and held that the conspiracies in the two cases were not identical. It appears to us that the court did not repel the contention of the appellant regarding the illegality of the second FIR and the investigation based thereon being vitiated, but on facts found that the two FIRs in truth and substance were different – the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually. It was pointed out that even under the Code of 1898, after filing of final report, there could be further investigation and forwarding of further report. The 1973 Cr.P.C. specifically provides for further investigation after forwarding of report under sub- 20 section (2) of Section 173 Cr.P.C. and forwarding of further report or reports to the Magistrate concerned under Section 173(8) Cr.P.C. It follows that if the gravamen of the charges in the two FIRs – the first and the second – is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 Cr.P.C. will be irregular and the court cannot take cognizance of the same. In another decision reported in AIR 1960 SC 391 (The State of Bombay ..vs.. Rusy Mistry and another), the Supreme Court has observed that - 7. .... The first information report is the information recorded under S.154 of the Cr.P.C. It is an information given to a police officer relating to the commission of an offence. It is also an information given by an informant on which the investigation is commenced. It must be distinguished from information received after the commencement of the investigation which is covered by Ss.161 and 162 of the Cr.P.C. It is well settled that the 21 first information report is not substantive evidence, but can only be used to corroborate or contradict the evidence of the informant given in court or to impeach his credit. It follows that a judge cannot place such a report before the jury as substantive evidence, but can only refer to that portion of it which had been used for one or other of the aforesaid purposes. 8. In this case, the learned Sessions Judge found that Exh.26 was not a first information report, as it was not the first complaint Mrs. Bapasola made to the police. If it was not the first information report, it was hit by Ss.161 and 162 of the Cr.P.C. and the learned judge should not have relied upon it except to the extent permitted by the proviso to S.162 of the Cr.P.C. i.e. to contradict Mrs. Bapasola with reference to any particular statement therein. The learned Sessions Judge had, therefore, clearly misdirected himself in reading the so- called “relevant portions” of the said document to the jury. 22 12. The proposition as made by Shri Desai cannot be disputed. Mr.Desasi submits that the evidence of two police officers would disclose that they have had some information before the statement of the complainant PW 1- Antonio was recorded. PW 15 PSI Ashish states that he was in the hospital (Government Medical College) and he was informed by PI Nigale that Antonio was assaulted and admitted in the hospital and to record his statement. PW 14 PI Rajesh Nigale, however, does not say that he had given any instructions to PI Ashish (PW 15). However, it appears that PI Nigale who was in the police station had some information. That information is not coming before the court at all. It may be mentioned fairly here, that some station diary entry was brought and shown in this court but no copy of it is filed. It is, therefore, difficult to take cognizance of the same but the fact is that before trial court that information was not placed. What was the information, who gave the information is not clear. It is also not clear if the information that was give was very cryptic information or 23 detailed information, was it given on the telephone or was given orally. There has been an attempt, therefore, to suppress that information. Had that information been placed before the court then perhaps the court would have come to the conclusion as to whether the complaint recorded by PSI Ashish in the hospital, could be treated as an FIR or one which was given to the police could be treated as FIR. This cannot be decided because nature of the information in the police station is not placed before the court. In the reported cases, the court had found that if the information, that is available with the police at the first instance,