LexDHARMA RAMA BHAGARE versus THE STATE OF MAHARASHTRA
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DHARMA RAMA BHAGARE v'. TIIE STATE OF MAHARASHTRA. December 13,, 1972 [A. ALAG!RISWAMI, I. D. DUA AND C. A. VAID!ALINGAM, JJ.] Criminal Trial-Evidence-Alleged discrepancy between medical evl- ...Jence and testiffl.ony of eye-witnesses whether justifies acquittal-F .l.R. whether can be used to contradict statements of witnesses other than the •maker thereof-Sentence of death-No leniency when only reason for kill· iiig is difference of religion. · The appellant was conVicted by the Sessions Judge of offences under ss. 148,323 and 302· J.P.C. 'The High Court maintained his conviction and confirmed the sentence to de3th. Jn appeal by special leave to this Court ·it was contended that (i) the evidence of the eye-witnesses went against- tbe medical evidence and thereof the former was wrongly relied on bv the ·courts below; (ii) the evidence of the three eye-witness.es on which the conviction of the appellant was based was contradicted by the F.I.R. lod- ·ged by S, one of the victims of the incident and therefore should not have been relied on; and (iii) the sentence of death passed against the appel- ·1ant was ex~essive. Dismissing the appeal, A B c D HELD: (i) 'The fact remained that an arrow was aciually found ·underneath A's dead body and according to the ·doctor the injury on the deceased could be caused by that arrow.. The mere fact, therefore that in the opinion of the doctor the arrow with the · hook, unless skilfully E pulled out of the wound. was likely to cause more damage was not ai suffi- · ciently strong factor to reject the testimony Of the three eye-\\'itnesses believed by the courts below and about whose trustworthiness there could ·'be no reasonable doubt, (ii) 'The F.I.R. could only discredit the testimony of S whose evidence had not been relied upon to support the.appellant's conviction. 'The F.I.R. could by no means be utilised for contradicting or discrediting the other withnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant. 'The evidence of the <!ye·witn.esses believed by the two courts appeared to be free from any serious ~firmity justifying its rejectiC'n., The case was obviously' not one in which any reasonable doubt could be cast on the testimony of the · eye-witnesses on the mere ground that S who apparently In his attempt 'to save himself from the fierce indiscriminate assault by the assailants was not able carefully to see and remember '3S to i~- what manner and . 'by what weapon his parents and eldest brother bad been killed. (iii) The relevant· considerations in determining the sentence, broadly Mstated, include the motive for, and the magnitude of, the offence and the -manner of its commission .. Jn this case the victims of the assault had ·given no offence to the appellant or his associates. They. were actually -running ~ panic on seeing the mob, to save themselves. · 'The commission of offences motivated only by the fact that the ·,'"'Victim professes a different religious faith could not be treated with leniency. 92 F G H ( ' A B c D E F G H DHARMA v. MAHARASHTRA (Dua, l.) 93 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 281 of 1971. Appeal by special ·leave from the Judgment and order dated May 18, 1971 of the Bombay High Court in Cr. A. No. 262 of 1971 and confirmation case No. 5 of 1971. S. K. Dholakia and R. C. Bhatia, for the appellant. H. R. Khanna and B. D. Sharma, for the respondent. DuA, J.. The appellant in this appeal by special leave (accused no. 1 in the trial court) was convicted by the Second Additional Sessions Jud~ of Thana of offences under ss. 148, 323 and 302, I.P.C. and was sentenced to death under s. 302 and to various terms of rigorous imprisonment under ss. 148 and 323 of. the said Code. The High Court maintained his convic- tion and confirmed the sentence of death. He has now appealed to this Court and Shri Dholakia, learned counsel appearing in support of this appeal has addressed lengthy arguments challeng- ing both the conviction and the sentence. This case is an off-shoot 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 th.e town of Bhiwandi it spread to the neigh- bouring towns and villages. In the Thakurpada of Tansa village there lived one Abdul Khalil aged about 55 years
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