Case: Dharma Rama Bhagare Vs. State of Maharashtra

pulled out of the wound was likely to cause more damage is, in our opinion, not a sufficiently strong factor which should persuade us on the existing record to reject the testimony of the three eye-witnesses believed by the Courts below and about whose trustworthiness we do not entertain any reasonable doubt. It is noteworthy that this contention was not raised either in the trial Court or in the High Court. Indeed, during the cross-examination of Dr. Deshpande (P. W. 12) even when he was recalled no straight and direct question was put to him, if keeping in view the nature of the injuries on Abdul Khalil and Sahebi and the recovered arrows and assuming that the arrows causing the injury had not been taken out skillfully, he could confidently depose that the injuries in question were not possible to be caused by these arrows. It is also pertinent to point out that from the order dated April 27, 1971, it does not appear that the counsel for the appellant specifically desired to clarify this point from the doctor. The submission now forcefully advanced by Shri Dholakia appears to us to be an afterthought and in any event is clearly not supportable on the medical evidence. We are, therefore, unable to reject the testimony of the eye-witnesses merely on the medical evidence to which our attention has been drawn.7. In so far as the information lodged with the police by Shamsuddin is concerned both the courts below have not considered it proper to reject the testimony of the other three eye-witnesses on the ground of variance between their statements in Court and the contents of the said information. The first information report, it may be pointed out, 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. Its value must always depend on the facts and circumstances of a given case. In the present case its value has not been considered to be of much significant because of the nature and circumstances of the occurrence and the extent and nature of the injuries suffered by Shamsuddin who quite naturally must have been subjected to a very severe shock. The surviving members of the family could not go back to their home even after the occurrence and felt compelled to trek the whole night on foot to find shelter in the house of Gafoor at Shahpur where they reached the following morning. In these circumstances the contents of the F.I.R. made by Shamsuddin have rightly not been given any importance by the trial Court and by the High Court. The F.I.R. can only discredit the testimony of Shamsuddin whose evidence has not been relied upon for supporting the appellants conviction. The F.I.R. can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant. The evidence of the eye-witnesses believed by the two Courts appears to us to be free from any serious infirmity justifying its rejection. The case is obviously not one in which any reasonable doubt can be cast on the testimony of the eye-witnesses on the mere ground that Shamsuddin who apparently in his attempt to save himself from the fierce indiscriminate assault by the assailants was not able carefully to see and remember as to in what manner and by what weapon his parents and eldest brother had been killed. That they were actually killed during the occurrence in question is undisputed. Equally undisputed is the nature of injuries found on their bodies.We are, therefore, unable to agree with Shri Dholakia that the prosecution case should be thrown out on the mere ground that in the first information report an altogether different version was given by Shamsuddin.The evidence of Shamsuddin as given in Court, it may be recalled has not been relied upon for sustaining the appellants conviction. We accordingly feel little hesitation in agreeing with the concurrent conclusion of the trial Court and the High Court that the appellant was responsible for killing the three deceased persons.8. The last contention by Shri Dholakia relates to the question of sentence. According to him the present is not a case for extreme penalty. We are unable to agree.The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly stated, include the motive for, and the magnitude of, the offences and the manner of its commission. In this case the victims of the assault had given no offence to the appellant or his associates. Indeed the unarmed innocent members of this family had to leave their hearth, and home and were actually at the moment of the offence running in panic on seeing the mob, to save themselves, when the three seniormost members were shot with arrows from behind and killed. One of the victims was a woman with a baby in her arms. The only reasons for these murders is the profession of different religious faith by the victims. According to the investigating Officer, P. W. 13. Abdul Khalils residential house had also been set on fire on May 12 at 8.30 p. m. In our country where the Constitution guarantees to all individuals freedom of religious faith, thought, belief and expression and where no particular religion is accorded a superior status and none subjected to hostile discrimination the commission of offences motivated only by the fact that the victim professes a different religious faith cannot be treated with leniency. They are not only destructive of our basic traditional social order founded on toleration in recognition of the dignity of the individual and of other cherished human values, but have also a tendency to mar our national solidarity. We are, therefore, wholly unable to find any cogent reason for reducing the sentences imposed by the trial Court and confirmed by the High Court. Th

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. In so far as the information lodged with the police by Shamsuddin is concerned both the courts below have not considered it proper to reject the testimony of the other three eye-witnesses on the ground of variance between their statements in Court and the contents of the said information. The first information report, it may be pointed out, 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. Its value must always depend on the facts and circumstances of a given case. In the present case its value has not been considered to be of much significant because of the nature and circumstances of the occurrence and the extent and nature of the injuries suffered by Shamsuddin who quite naturally must have been subjected to a very severe shock. The surviving members of the family could not go back to their home even after the occurrence and felt compelled to trek the whole night on foot to find shelter in the house of Gafoor at Shahpur where they reached the following morning. In these circumstances the contents of the F.I.R. made by Shamsuddin have rightly not been given any importance by the trial Court and by the High Court. The F.I.R. can only discredit the testimony of Shamsuddin whose evidence has not been relied upon for supporting the appellants conviction. The F.I.R. can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant. The evidence of the eye-witnesses believed by the two Courts appears to us to be free from any serious infirmity justifying its rejection. The case is obviously not one in which any reasonable doubt can be cast on the testimony of the eye-witnesses on the mere ground that Shamsuddin who apparently in his attempt to save himself from the fierce indiscriminate assault by the assailants was not able carefully to see and remember as to in what manner and by what weapon his parents and eldest brother had been killed. That they were actually killed during the occurrence in question is undisputed. Equally undisputed is the nature of injuries found on their bodies.We are, therefore, unable to agree with Shri Dholakia that the prosecution case should be thrown out on the mere ground that in the first information report an altogether different version was given by Shamsuddin.The evidence of Shamsuddin as given in Court, it may be recalled has not been relied upon for sustaining the appellants conviction. We accordingly feel little hesitation in agreeing with the concurrent conclusion of the trial Court and the High Court that the appellant was responsible for killing the three deceased persons.8. The last contention by Shri Dholakia relates to the question of sentence. According to him the present is not a case for extreme penalty. We are unable to agree.The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly stated, include the motive for, and the magnitude of, the offences and the manner of its commission. In this case the victims of the assault had given no offence to the appellant or his associates. Indeed the unarmed innocent members of this family had to leave their hearth, and home and were actually at the moment of the offence running in panic on seeing the mob, to save themselves, when the three seniormost members were shot with arrows from behind and killed. One of the victims was a woman with a baby in her arms. The only reasons for these murders is the profession of different religious faith by the victims. According to the investigating Officer, P. W. 13. Abdul Khalils residential house had also been set on fire on May 12 at 8.30 p. m. In our country where the Constitution guarantees to all individuals freedom of religious faith, thought, belief and expression and where no particular religion is accorded a superior status and none subjected to hostile discrimination the commission of offences motivated only by the fact that the victim professes a different religious faith cannot be treated with leniency. They are not only destructive of our basic traditional social order founded on toleration in recognition of the dignity of the individual and of other cherished human values, but have also a tendency to mar our national solidarity. We are, therefore, wholly unable to find any cogent reason for reducing the sentences imposed by the trial Court and confirmed by the High Court.