DAMODARPRASAD CHANDRIKAPRASAD & ORS. v. STATE OF MAHARASHTRA
Citation: [1972] 2 S.C.R. 622; 1971 INSC 332
Court: Supreme Court of India
Bench: A.N. RAY , D.G. PALEKAR
Judgment date:
Case summary
1971 INSC 332. Supreme Court of India judgment dated 1971-11-29. DAMODARPRASAD CHANDRIKAPRASAD & ORS. v. STATE OF MAHARASHTRA. Read the judgment and case...
Judgment text
624 SUPREME COURT REPORTS [1972) 2 S. C. R. DAMODARPRASAD CHANDRIKAPRA. SAD & ORS. v. STATE OF MAHARASHTRA November 29, 1971 [A. N. RAY AND D. G. PALEKAR, JJ. ] Practice and Procedure-Appeal against acq11ittal-High Co11rt's power of interference. Evidence Act (I of 1872), s. 151-F. l. R. not prored through maker ·If admissible. The High Court set aside an order of acquittal of the appellants on various charges and convicted them. One of the items of evidence on which the High Court relied was the first information report. Though it was not proved through its maker when he gave e\idence in the trial court. the High Court held it to be aclmissihle under s. 157 of the Evidence Act. In appeal to this Court, HELD : (I) The High Court was wrong in holding that the First Information Report would be admissible under s.. 157 of the Evidence Act. Under that section. it could not be used as substantive evidence but only to corroborate its maker.
The &ppellants were also denied the opportunit1· of cross-examination on th~ First Tnformation Report. [627 A-DJ (2) The High Court, however, was correct in setting aside the order of ac4uitbl and convicting the appellants on the other evidence. [h39 D-0] Jn dealing with an appeal against acquittal the High Court can go inh, questions of law and fact and reach its own conclusion on evidence pro" £ sided it pays due regard to the principles for such review. These princi· ples are giving due regard to, the views of the trial Judge as to the credibi· lily of the witnesses, the presumption of ' innocence in favour of the accused, the right of the accused to any benefit of doubt and the slowneS ~mier Automobiles, Kurla. Appellant No. 4 resided at· another Chaw! at Kurla and was also employed at Premier Automobiles, Kurla. Accused No. 5 worked as a Mehtaji of one Jairaj Pandye and resided at Bha,!! wat Bhuvan, Halav Pool, Kurla. The prosecution case was this.
The relatioo between Choharjasing and his brother Nandlal on the one hand and appellants No. 1 and 2 on the other were strained for some time. On the morning of 15 October, 1964 Nandlal brought a truck load of earth and spread the same in front on their room. On that account there was some altercation between him and appellants No. 1, 2 and 3. On the morning of 16 October, 1964 Choharjasing left his room and went to Podar Hospital at Worli for undergoing an operation for fistula. He returned to his room at about 11 or 12 noon. On his return he was told by his brother Nandlal about the quarrel and that the appellants and another accused had given a threat and enquired as to where Choharjasing was. Nandlal further told Choharjasing :that the appellants and the other accused had threatened that they would break Choharjasing's hands and feet. Choharjasing went to the Police Station and filed non-cognizable complaint.
The police 'directed Choharjasing to approach rthe proper criminal court. Choharjasing went to pr()-secution witness Dinanath and told him about the threats. Choharj asing then returned to his room and launched with his brother Nandlal, cousin Ramkeshwarsing and brother-in-law Gaitrising. Choharjasing was not feeling comfortable after the operation. He sat on a charpoy (cot) outside his room. Nandlal was with Choharjasing. Ramkeshwarsing was inside the room. At about 5 or 5. 30 p. m. the appellants came there. Appellant No. l was armed with a Jathi. Appellants No. 2, 3 and 4 had also lathis or something like iron bars. Accused No. 5 was standing at som~ distance. Accused No. 5 instigated the appellants by shouting the words 'Dekhte kya ho, Mar Dalo' (what are you looking at, assault them). Appellant No. 1 also shouted to assault. The appellants surrounded Choharjasin,!! and Nandlal and started assaulting 1hem with weapons. Appellants No. 1 and 4 hit Choharjasing. Appellants No.
2 and 3 hit Nandlal. Choharjasin. g fell down. The assault continued. Appellant No. 2 thrust his stick in •the mouth of Choharjasing and he lost four of his teeth. Choharjasing and Nandlal both fell unconscious. Ramkeshwarsing received a blow on left hand. DAMODARPRASAD I'. MAHARASHTRA (Ruy, J. ) 625 The Sub-Inspector of Police on getting a telephone message crune to the spot. On the way the Sub-Inspector met appellants No. 1 and 4 each of whom had injuries on their person. They were pu't in the police van. The van was taken to the place of incident. Choharjasing aind Nandlal were lying unconscious. Witnesses Awadh Narayan and Dinanath were present there. Choharjasing and Nandlal were put into the van and removed to the hospital. At the time of admission to the hospital Choharjasing had 12 injuries. Nandlal had 5 injuries. Appellant No. 4 had 3 injuries. Choharjasing and Nandlal were detained in the hospital as indoor patients from 16 October 1964 to 12 November, 1964. Appellant No.
4 in spite of medical advi~ left the hospital on 17 October, 1964.. The trial Court acquitted all the 5 accused. The trial Court gave these reasons. Choharjasing and Ramkeshwarsing, did not mention accused No. 5. Witness Award Narayair1 did not mention accused No. 5. Ranikeshwarsing did not mention accused No. 2, 3 and 5. Witness Awadh Narayan did not mention accused No. 3. Choharjasing and Nandlal were all thin and of weak build. The accused were hefty in build. It is difficult to say why so many persons would engage in the assault on two weak persons, particularly when Choharjasing had just returned after operation from the hospital. The injuries on appellants No. 1 and 4 were not satisfactorily explained. The possibility of persons from the crowd feeling enraged at the assault on accused No. 1 to 5 who were holding important offices in the local Congress organis IE COURT REPORTS [! 972j 2 S. C. R. this accused No.
4 caine there and he was assaulted cannot in the circumstances be overlooked. With these reasons the trial Court acquitted all the five accused. The High Court set aside the order of acquittal. The High Court arrived at these conclusions. The evidence estaWished that ' the grievous injury inflicted on Choharjasing and Nandlal and the Jl simple injury inflicted on Rarokeshwarsing were inflicted by the appellall'ls. The trouble arose on account of dispute over the open space adjoining the room of Chohlirjasing. The appellants could not be convicted under section 307 of the Indian Penal Code. The appellants were guUty of causing grievous hurt. The High Court, therefore, convicted the appellants for injuries sustained by Choharjasing, N aindlal and Rarnkeshwarsing. Counsel for 'the appellants made these submissions. The High Court interfered with the acquittal without giving any reasons. The first infonl:lation report about the cognizance of the offence was wroni:ly admitted in evidence.
The incident on the morning of 16 October, 1964 could not be believed and therefore the en· o tire prosecution would fail. ' As to the incident on the morning of 16 October, 1964 the trial Court said that the time of recording the complaint on 16 October, 1964 was 11. 05 a. m. whereas the complainant's version in court was that he returned from the hospital at about 11 a. m. or 12 noon, when he received information from Nandlal. Further in the complaint Choharjasing did not mention about any of the accused and Nandlal also did not mention accused No. 5. The land on which earth was spread belonged to one Khot and ther~ fore appellant No. 1 could not have interest in that land. On these grounds the trial Court did not accept the version that there was any occurrence on the morning of 16 October, 1964.
The High Court, however, accepted the version that there was an incident on the morning of 16 October, 1964 and said that Choharjasing would not have taken the trouble of going to the police and lodging a complaint. The High Court gave two broad reasons for accepting the prosecution version about the incident on the morning of 16 October, 1964. First, there was the complaint by Choharjasing. Secondly, Choharjasing had gone to the hospital on the morning of 16 October, 1964 and on his return from the hospital he went to lodge the complaint. Choharjasing would not have done so, if there had been no· inci-de. nt in the morning. The High Court referred to the first information report about the commission of the offence and said tbat once tbe s(atem. ent was admitted in evidence it afforded a very strong corroboration DAMODARPRASAD V. MAHARASHTRA (Ray, J. ) 627 to the testimony of Choharjasing so far as the complicity of accused No.
1 to 4 in the crime was concerned and the first information report was admissible under section 157 of the Evidence Act. The first information report is not substantive evidence. It can be used for one of the limited purposes of corroborating or contradicting the makers thereof. Another purpose for which 8 the first information report can be used is to show the implication of the accused to be not an afterthought or that the information is a piece of evidence res gestao. 1n certain cases, the first information report can be used under section 32(i) of the Evidence Act or under section 8 of the Evidence Act as to the cause of the informant's death or as part of the informer's conduct. The High Court was wrong in holding that the first information report would be admissible under section 15 7 of the Evidence Act. When the maker of the first information report was examined in court the report was not tendered by the prosecution in accor-dance with the provisions of the Evidence Act.
The appellants were denied the opportunity of cross-examination on the first ! ) information report. The first information report was therefore wrongly relied upon in evidence for the purposes suggested by the High Court. It is therefore to be seen as to whether the High Court was justified in convicting the appellants on the evidence and the grollf\ds mentioned in the judgment. lE The evidence of the complainant is that in the afternoon ·of 16 October, 1964 all the appellants came armed with lathis or somethink: like iron bars and all the four appellants assaulted Choharjasing and Nandlal with what the appellants had in their hands. The further evidence is that appellant No. 2 thrust the lathi into Choharjasing's mouth and he lost four of his teeth as a result of that. ' Nandlal in his evidence stated that appellant No. 2 · gave a blow with a stick on his head. Nandlal and Choharjasing were attempting to run away when appellant No.
3 assaulted Nandlal on his head with what looked like an iron bar and appellant No. 4 also assaulted him with what he was holding ar. d which also looked like an iron bar. Nandlal further said that appellant No. 2 assaulted him before he fell down and after he had fallen down all the appellants assaulted him. Witness Ramkeshwarsing said that he saw all the appehants and when Choharjasing and Nandlal had fallen on the ground they were assaulted by all the appellants with sticks and iron bars. Ramkeshwarsing further said that in the 'statement to the police he mentioJ1ed that he saw appellant No. 1, 2 and two others. (1972] 2 S. C. R Witness Awadh Narayan said that he knew all the appellants and he saw sticks in their hands. He corroborated Nandlal's evidence that appellant No. 2 assaulted with a. stick Choharjasing on the mouth. He also said that all the appellants continued assaulting Choharjasing and Nandlal.
He said that in his statement to the police he mentioned the names of appellants No. 1 ·and 2. Witness Dinanath said that he knew Choharjasing and Nandlal for a few years and he also know the appellants. He said that appellant No. 2 had a stick in his hand and appellant No. 2 assaulted Nandlal on his head. His further evidence was that appellant NO. 2 gave a straight and perpendicular blow with a stick on the mouth of Choharjasing. The Sessions Court was wrong in holding that Ramkeshwarsing did not mention the name of appellant No. 2. He not only stated in his oral evidence that he had mentioned the name of appellant No. 2 to the police but this was also not challenged in cross-examination. The other witnesses Choharjasing, Nandlal, Awadh Narayan and Dinanath all. spoke about the appellants who assaulted Choharjasing and Nandla\. As to appellant No. 3 Choharjasing said that appellants No. 3 and 4 carried something like iron bars of a black colour. As far as appellant No.
3 is concerned there is no contradictory police statement on the part of Choharjasing. The oral evidence of Nandlal in relation to appellant No. 3 was that he aslaulted Nandlal. Nandlal in his statement to the police also mentioned about appellant No. 3. There is no contradicto~· police· statement on the part of Nandlal as far as appellant No. 3 was concerned. Nor was any such contradiction put to Nandlal. The medical evidence abput the injuries to Choharjasin_g was that the injuries could be caused by hard and blunt substance like iron bars and lathis and were likely to cause death if not medically attended to. The medical evidence about the injuries to Nandlal was that those injuries could be caused by coming in contact with hard and blunt substance such as lathi, bamboo. stones, iron bars etc. and were serious injuries and were likely to cause death if not medically attended to.
Ramkeshwarsing in his oral evidence said that the appellants assaulted Choharjasing and NandlaL He said that he did not mention appellants No. 3 and 4 in the police statement because he did not know them. There- is no contradictory police statement as far as witness Ramkeshwarsing is concerned in relation II! to appellant No. 3. In his police statement he mentioned appellants No. 1 and 2 and he said that two others assaulted Choharjasing and Nandlal. Ramakeshwarsing thus spoke of four persons DAMODARPRASAD v. MAHARASHTRA (Ray, J. ) 629' assaulting Choharjasing and Nandlal. That was not challenged in cross-examination. Witness Awadh Narayan spoke of appellant No. 3. There is no contradictory police statement of Awadh Narayan in relation to appellant No. 3. Witness Dinanath spoke about appellant No. 3 assaulting Choharjasing and Nandlal. There is no cross:examinati? n of Dinanath that appellant No. 3 gave a blow with a sack to Nandlal.
On behalf of the appellants it was contended that appellaol ( conviction setting aside an acquittal. One of the modes was to go through the evidence and find out whether the High Court had infringed the principles laid down in Samvat Singh v. State of Rajasthan (supra) or whether the appeal was an exceptional one within ! he ruling of this Court in State of Bombay v. Rusy Mistry A. I. R. 1960 S. C. 391 where the finding was such that 'it shocks the conscience of the court' or that it disregarded the forms of legal precess or sub· stantial and grave injustice had been done. In dealing with an appeal against an acquittal the High Court can go into the questions of law and fact and reach its own conclusion on evidence provided it pays due regard to the fact that the matter had been before the Court of Sessions and the Sessions Judge had the chance and opportunity of seeing tL witnesses depose to the facts [See Laxman Kalu Nikalie v. The State vf Maharashtra (1968) 3 S. C. R. ( 685].
The High Court was correct in setting aside the order of acquittal and convicting the appellants. The appeal therefore fails and is dismissed. If the appellants are on bail their bail bonds are cancelled. They wiU surrender and serve out the sentence. V. P. S. Appeal dismissed.
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