IMPORTANT POINTS
Question, as to whether in a given case common object has been made out or not, depends upon facts and circumstances thereof. Conduct of parties and manner in which occurrence has taken place, also has some bearing on question
Cryptic and anonymous oral message which not in terms clearly specify commission of a cognizable offence, cannot be treated as an FIR.

Headnote:Indian Penal Code, 1860 – Sections 302 r\w 149, 147 r\w 149 – Criminal Procedure Code, 1973 – Section 162 - Prosecution of Appellant accused persons five in number for causing death of one person and injuries on other by assaulting them by means of a bamboo stick – Conviction by Trial Court – High Court on Appeal affirmed conviction & Sentence passed by Trial Court – Appeal against conviction on plea that informant PW2 having informed officer in charge of police station on telephone which was recorded in writing, FIR lodged at 7:30 am on next day of occurrence was barred u\s 162 of CrPC – Validity – Relying upon decision in case of Tapinder Singh V. State of Punjab and another held that cryptic and anonymous oral message which did not in terms clearly specify commission of a cognizable offence cannot be treated as an FIR - No police post in village – Pw2 was adviced to make a phone call – PW2 had to go to house of one “M” to wake him as gram panchayat office where phone was available was adjoining to his house – Hence information given to police officer by PW2 on telephone would not have been in great Details – Delay in lodging FIR was explained as priority was given to treatment of deceased and injured – No reason to discard testimony of PW2 who was an independent witness – No statement made by Head constable or Investigating Officer that information given by PW2 on telephone was a Detailed report – If in such circumstances another FIR which was a detailed one came to be recorded, no exception could be taken to same being treated as a FIR - Major part of action taken by Investigating officer pursuant to FIR not being disbelieved, no reason to discard statement of pW2 made before officer in change on next day. (Paras 15,16,17,18,24,25,26,27,29)
       Indian Penal Code, 1860 – Sections 302 r\w 149, 147 r\w 149 – Appeal against conviction – Evidence of eyewitnesses – Admissibility of - Since eye witnesses were examined in Court two and a half years after date of occurrence even if there occurred some contradictions in their testimony same by itself not lead to a conclusion that appellants had been falsely implicated in case. (Paras 33,34)
       Indian penal Code, 1860 – Sections 302 r\w 149, 147 r\w 149 - Common object - Prosecution of Appellant accused persons five in number for causing death of one person and injuries on other by assaulting them by means of a bamboo stick – Conviction by Trial Court – High Court on Appeal affirmed conviction & Sentence passed by Trial Court – Appeal against conviction on plea that no specific overt act having been attributed to any of appellants conviction under Section 302/149 of IPC could not be sustained – Held question, as to whether in a given case common object has been made out or not, depends upon facts and circumstances thereof - Conduct of parties and manner in which occurrence has taken place, also has some bearing on question -Appellant accused persons came together and assaulted deceased and P.W.6 indiscriminately - Despite having been asked to stop assaulting not only by Informant P.W.2 but also by wife of deceased, appellants not paid any heed thereto and continued to assault victims – Appellant accused persons dragged victims to west bank of river and only left them there when a large number of people gathered and asked them not to do so - Not a case where despite fact that specific overt acts on part of each of appellant herein had not been specifically stated, they could not be held guilty only under Section 325 of IPC – Appeal having no merit, dismissed. (Paras 35,36,39)
       Facts of the case :
       The Appellant accused persons five in number herein in the instant case were convicted by Trial Court for causing death of one person and injuries on other by assaulting them by means of a bamboo stick. High Court on Appeal affirmed conviction and Sentence passed by Trial Court.
       Present appeal has been filed against said order of conviction on plea that informant PW2 having informed officer in charge of police station on telephone which was recorded in writing, FIR lodged at 7:30 am on next day of occurrence was barred u\s 162 of CrPC.
       Findings of the Court :
       Relying upon decision in case of Tapinder Singh V. State of Punjab and another Court held that cryptic and anonymous oral message which did not in terms clearly specify commission of a cognizable offence cannot be treated as an FIR. PW2 had to go to house of one “M” to wake him as gram panchayat office where phone was available was adjoining to his house. Hence information given to police officer by PW2 on telephone would not have been in great Details. Delay in lodging FIR was explained as priority was given to treatment of deceased and injured. No reason to discard testimony of PW2 who was an independent witness. No statement made by Head constable or Investigating Officer that information given by PW2 on telephone was a detailed report. If in such circumstances another FIR which was a detailed one came to be recorded, no exception could be taken to same being treated as a FIR. Major part of action taken by Investigating officer pursuant to FIR not being disbelieved, no reason to discard statement of pW2 made before officer in change on next day.
       Appellant accused persons came together and assaulted deceased and P.W.6 indiscriminately. Despite having been asked to stop assaulting not only by Informant P.W.2 but also by wife of deceased, appellants not paid any heed thereto and continued to assault victims. Appellant accused persons dragged victims to west bank of river and only left them there when a large number of people gathered and asked them not to do so. Held to be not a case where despite fact that specific overt acts on part of each of appellant herein had not been specifically stated, they could not be held guilty only under Section 325 of IPC. Appeal having no merit was, dismissed accordingly.

JUDGMENT

S.B. Sinha, J.—

1.Appellants who are five in number are before us being aggrieved by and dissatisfied with the impugned Judgment of the High Court of Bombay, Aurangabad Bench at Aurangabad dated 5.9.2005 passed in Criminal Appeal No. 398 of 1999 affirming a judgment of conviction and sentence dated 30.9.1999 passed by the Sessions Judge, Beed in Sessions Case No. 18 of 1998 convicting the appellants herein inter alia for commission of an offence under Section 302 read with Section 149, Section 147 read with Section 149 of the Indian Penal Code.

2.Appellants herein were proceeded against for committing an offence of culpable homicide amounting to murder of one Dnyandeo and for causing hurt to one Bapu (P.W. 6) on 22.1.1997 at about 10.30 p.m. in the night in Village Pangulgavhan within the Police Station Ashti in the District of Beed. First Information Report in respect thereof was lodged at 7.30 a.m. on 23.1.1997 by PW-2 Rohidas Gite alleging that while he had been sleeping in his house after taking meal, his uncle Ajinath Gite (P.W. 3) came to his house to inform him that thieves had come and some ‘tumult’ is going on, whereupon both of them went towards the place of occurrence and found that both the ‘deceased’ and the ‘injured’ were being assaulted by accused No.1 Vikram, accused No. 2 Mokinda, accused No. 3 Tatyaba, accused No. 4 Bhagan, accused No. 5 Rambhau, alongwith some others (who being juvenile, had been separately tried). They, although, tried to intervene, but were threatened not to do so. He thereafter went to the House of the deceased and informed his wife as well as Raosaheb Namdeo Gite who came to the place of occurrence. Other persons including Ashruba Pandharinath, Mahadeo Pandharinath, Shyamrao Gajaba, Ashok Baba, Mahadeo Lahanu also came to the spot. The injured were, by that time dragged upto the river by the assailants. They were asked to stop assaulting and were furthermore requested in the event they had any dispute with him in regard to their land should take recourse to the law whereupon the assailants left them in the river and fled. Both the deceased and Bapu Kisan Gite (PW-6) were found to be unconscious.

3.P.W. 2 Rohidas was advised by others to inform the Police Station on telephone whereupon he went to Village Bhalavani alongwith Ajinath, Gangaram and Bayaji Bhiva at about 1:00 a.m. and informed the Officer in charge of Police Station on telephone. On receipt of the said information, a police officer visited the place of occurrence at Village Pangulgavhan. In the meanwhile, the injured were shifted in front of the house of Laxmibai Ashruba Gite. They were later on shifted by the police personnel to the Government Hospital at Ashti. Whereas Dnyandeo Vithoba Gite was declared dead, PW-6 was admitted in the hospital. Mr. Suresh Gange, P.W. 8 registered a case under Section 147, 148, 149 and 302. He seized three articles including a bamboo stick measuring about 2 ft. and 5 inches with a diameter of about 2 inches. Other articles were also seized. Appellants were arrested on 24.1.1997. The prosecution case was proved primarily by PW-2 the informant, PW-3 Aginath, PW-4 Janardhan and the injured witness P.W. 6 Bapu.

4.The learned Trial Judge by reason of a judgment of conviction and sentence dated 30.9.1999 on arriving at a finding of guilt, awarded life imprisonment and a fine of Rs. 1,000/- each under Section 302 read with Section 149 of the Indian Penal Code, simple imprisonment of 6 months for commission of the offence under Section 149, fine of Rs. 500/- each under Section 147 read with Section 149 and fine of Rs. 500/- under Section 149 of the Indian Penal Code. The appeal preferred by the appellants thereagainst has been dismissed by the High Court by reason of the impugned judgment.

5.Mr. Arvind V. Savant, learned senior counsel appearing on behalf of the appellants in support of this appeal inter alia would submit ;

(i)P.W. 2 having informed the officer-in-charge of Police Station Ashti

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2007 Supreme(SC) 689

Cases Referred (7)