Case: Dharma Rama Bhagare Vs. State of Maharashtra

2. This case is an off-shot of the unfortunate communal riots which occurred on May 7, 1970 in the town of Bhiwandi in Thana District in the State of Maharashtra. Though the trouble originally started in the town of Bhiwandi it spread to the neighbouring towns and villages. In the Thakurpada of Tansa village there lived one Abdul Khalil ged about 55 years along with his family members. This was the only Muslim family in Thakurpada. He and his wife Sahebi had ten children. Their names and ages in the order of seniority are: Shaukat (son) about 23 years, Shamsuddin (son) (who has appeared as (P. W. 1) about 19 years, Kasam (son) about 17, Hanif (son) about 15, Jubeda (daughter) about 13, Nizam (son) about 11, Fatma (daughter) about 9, Hamshera (daughter) about 4, Salim (son) about 3 and Nazar (son about 4 or 5 months). Abdul Khalil, Shaukat and Shamsuddin, all three used to work in Neviation Company at Mohila about 21/2 miles away from Tansa. Abdul Khalil was a truck driver and Shaukat, a cleaner. As communal trouble spread to other places in the district, some danger to the Muslim families in Tansa village was also apprehended. In that village there were perhaps about 5 or 6 Muslim families. On the outskirts of this village there is the great Tansa lake which supplied water to Bombay city. Mr. Khatkhate, a Hydraulic Engineer is in charge of that Lake. He has an office on the site with several employees of the Municipal Corporation of Bombay Working under him living on the site. Mr. Khatkhate met Abdul Khalil on May 12, 1970 and warned him that there was a likelihood that he and the members of his family might be attacked and that they should leave Tansa village and go to a safer place. As a result of this warning, Abdul Khalil and the members of his family abandoned their home and left Tansa village at about 6 p. m. on May 12, 1970. They went into the forest area surrounding the great Tansa lake and encamped on a hillock known as Maholi hillock about 21/2 miles away from the village. They spent the night at the hillock but having run short of water in the morning they shifted at about 10 a. m. on May 13, 1970 to the Nursery area of Tansa lake which is near the waters edge. This spot was about three or four furlongs away from Tansa village. They spent most of the day there. In the evening at about 6 or 6.30 Shamsuddin, the second son, went a little distance away from the family members to ease himself, when he saw a mob of about 30 or 35 persons armed with axes, spears and sticks coming from the side of the Tansa lake towards the place where Abdul Khalil and his family were staying. Seeing the mob approaching them Shamsuddin ran back to his parents and informed them about what he had seen. The mob was raising shouts. The members of Abdul Khalils family feeling frightened started running in different directions. They roughly formed themselves into three groups. One group consisted of Kasam, Hanif, Nizam, Salim and Hashma, the other consisted of Jubeda, Fatma and their mother Sahebi who was also carrying in her arms the baby Nazir and the third group which was the last to leave the spot consisted of Khalil and Shaukat. As these two persons were the last to leave the spot the mob had in the meantime comes close to them. They thus become the first target of the attack by the mob. The appellant, Dharma Rama Bhagare, who was armed with a bow and arrows shot an arrow at Khalil which pierced him in the back. Khalil fell down and was surrounded by other assailants, who started belabouring him. Abdul Khalils eldest son Shaukat seeing his father being attacked went to rescue him but he had hardly gone a few paces when another arrow discharged by the appellant struck him at the back near his right shoulder. Shaukat also fell down as a result of the injury caused by the arrow about two or three paces away from his father. He was also assaulted by some members of the mob. On seeing her husband and her eldest son being thus assaulted Sahebi raised alarm but she was also attacked by the appellant who shot the third arrow at her. This struck her on the left side above the waist with the result that she also fell down with her infant child in her arms. She died instantaneously. Some of the other members of Khalils family hid themselves behind the trees or Karvandi bushes round about the spot whereas some of them were still running away to save themselves, Jobeda, the young daughter on seeing her father, mother and brother being shot at with arrows, shouted. This apparently annoyed the appellant who picked up a stone and flung it at her, thereby causing an injury on her hand. Budhya, one of the accused, also struck a blow at her with an iron bar thereby injuring her right hand. Shamsuddin who was hidding himself behind a tree was noticed by some of the accused persons. Budhya accused ran towards him and assaulted him with the butt end of an axe. Some of the other accused persons also assaulted him with the result that Shamsuddin lost consciousness. Thereafter the assailants left the scene of occurrence and went away. As a result of this occurrence three members of this family died on the spot whereas two members suffered injuries. After regaining consciousness Shamsuddin and the surviving members of the family seeing their parents and eldest brother dead, were so terrified that they left the dead bodies at the scene of the occurrence and picking up their belongings proceeded on foot towards Shahpur town in the Taluk headquarters where one Gafoor a brother-in-law of Shamsuddin lived. Sending Kasam, Hanif and Nazir to the house of Gafoor, Shamsuddin himself along with others went to the police station. At the police station there was only a head-constable by name Bendhari (P. W. 4) who found Shamsuddin not in a fit condition to make a statement. Shamsuddin, who had sustained many injuries, was soaked in blood. The head-constable, therefore, after making an entry to this effect in the Station Diary, sent Shamsuddin and Jubeda to Shahpur dispensary for treatment. At about 10 oclock in the morning of May 14, 1970 the police Sub-Inspector in charge of the police station, Dattatreya Potdar (P.W. 13), came to the police station and on being apprised of Shamsuddin and Jubeda having gone to Shahpur for treatment he sent for Shamsuddin from the dispensary and recorded the first information report, Ex. 4. After registering the offence he took up the investigation. He sent for Kasam from Gafoors house and proceeded with him to the scene of the occurrence, reaching there at about 2 p.m. They remained there till about 5 p.m. The Sub-Inspector prepared panchanamas of the dead bodies and of the scene of the offence. The scene of the offence was about 400 ft. away on the southern side of Tansa lake in the area known as Nursery. Underneath the dead body of Abdul Khalil was found an arrowy which had blood-stains on it. The exact words of the panchanama relating to the recovery of this arrow are : "There is seen an arrow and a bow pressed in the stomach between both the legs of the deceased. On taking the arrow out it is found that its length is 5" and is of iron". On examination by the Chemical Analyser the stains on this arrow were found to be of human blood. Thereafter the three dead bodies were sent through constable Mahadik to the Medical Officer at Shahpur for post-mortem examination. After proceeding to Tansa village the Sub-Inspector arrested the appellant along with eight other persons at about 8 p.m. They were accused nos. 1 to 9 in the trial Court. The following morning, that is, May 15, 1970 the P.S.I. recorded the statements of Kasam and Jubeda, Hanif was also called but as he was crying all the time he was not able to make any statement. On May 16, 1970 the appellant made a statement leading to the recovery of a bow and four arrows from a spot in Karvandi shrubs about 85 paces away from his house. The recovered bow and four arrows were exhibited as 11, 11a, 12a, 12c and 12d. These articles were hidden under dry leaves. One of the arrows had blood stains on it but on examination the stains being disintegrated it could not be said if they were of human blood. The statement of Hanif was recorded by Vishwanath, Police Inspector in July, 1970 after he had taken over the investigation.3. The Additional Sessions Judge, Thana, who tried the case relied on the evidence of Kasam (P.W. 2) Jubeda (P. W. 3) and Hanif (P.W. 5). These witnesses, according to the trial Court, had not displayed any tendency to introduce falsehood in their statement though it felt that the evidence of Hanif (P.W. 5) should be read with a certain degree of care and caution because of his statement having been recorded by the investigating authorites more than two months after the occurrence. For accepting Hanifs evidence, therefore, the trial Court required corroboration. With respect to the evidence of Shamsuddin (P.W. 1), however, the trial Court felt that it was not safe to rely on his testimony because his statement in Court was at variance with the statement in the information lodged by him with the police. On the basis of the testimony of P.Ws. 2, 3 and 5 the trial Court came to the conclusion that the appellant was definitely at the scene of occurrence with bow and arrows and was a member of the unlawful assembly and further that he had shot the arrows at Abdul Khalil his eldest son Shaukat and his wife Sahebi the three deceased victims of the unfortunate occurrence. In that Courts opinion the three witnesses had no reason to screen the real offenders and to falsely implicate the appellants.4. The appellant (Dharma Rama Bhagare, accused No. 1 in the trial Court) and Budhya Dhaklya Valvi (accused no. 7 in the trial Court) appealed to the High Court. It may be recalled that during the investigation one arrow had been found underneath the dead body of Khalil and four arrows were recovered at the instance of the appellant. As already observed, the arrow recovered at the scene of occurrence had blood-stains on it which were on examination found to be of human origin whereas one of the four arrows recovered at the instance of the appellant was found on examination to have on it blood-stains but being disintegrated it could not be said if they were of human origin. It appears that there was some confusion in putting the exhibit marks on the arrows and the bow produced in evidence. The High Court, in the circumstances, considered it necessary to have the matter clarified by taking additional evidence. By means of an order dated April 27, 1971 the High Court required the trial Court to recall the investigating officer (P.W. 13) and the two witnesses P.Ws. 6 and 10 and have the matter clarified. The counsel for the accused appearing in the High Court also expressed a desire to ask some more questions from Dr. Deshpande (P.W. 12). This request was granted. The High Court thus disposed of the appeal and the murder reference after taking into consideration the additional evidence received under Sec. 428, Cr. P. C. The High Court, after appraising the evidence on the record did not see any cogent reason for not accepting the evidence of the three eye witnesses believed by the trial Court. That Court was also unable to find any reason why these witnesses should falsely implicate the accused persons. From the nature of the occurrence and its surrounding circumstances, in its opinion, there could not be any independent eye witnesses present and in a position to depose about the complicity of the accused persons. The locality where the occurrence had taken place being uninhabited and the only persons present being the assailants and their victims it was not possible normally to expect any independent eye witness. The recovery of a bow and four arrows recovered at the instance of the appellant were also held to support the prosecution version as these arrows were similar to the one recovered from the scene of the occurrence. The High Court further took into consideration the circumstance that the bow and four arrows were found concealed in a place where they are normally not kept. The appeal was accordingly dismissed.

Court's reasoning:
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.