M.L. Visa, J.@mdashBoth these appeals have been heard together and are being disposed of by this common judgment because both the appeals are directed against the judgment and order dated 19.8.87 passed by 4th Addl. Sessions Judge, Arrah in Sessions Trial No. 374 of 1984 convicting and sentencing appellant Jairam Pandey to undergo imprisonment for life u/s 302 of the Indian Penal Code (in short, I.P.C.), appellant Jagdish Pandey to undergo imprisonment for life u/s 302 read with Section 109, I.P.C. (in the last para of judgment wrongly typed as 302/149) and appellant Madan Pandey to undergo life imprisonment u/s 302 read with Section 34, I.P.C. All the appellants have been further convicted u/s 440, I.P.C. and appellant Jairam Pandey has further been convicted u/s 27 of Arms Act but no separate sentences under these heads have been passed.
2. The case of prosecution in short is that informant Rajdayal Pradhan (P.W. 7) got his fardbeyan (Ext. 4) recorded by S.I. Kameshwar Prasad Singh (P.W. 6) on 9.7.84 at 13.15 hours at Dumraon Police Station Campus stating therein that on the same day at about 8.30 a.m. he along with his deceased brother Jagdayal Pradhan was near his house when all the three appellants along with co-accused Jitendra Pandey came in a lane. Appellant Jairam Pandey was armed with his licensee gun, appellant Mohan Pandey was carrying ''bhala'' and appellant Jagdish Pandey and co-accused Jitendra Pandey were carrying ''lathis''. All the aforesaid four persons at the order of appellant Jagdish Pandey started cutting earth from the land situate north to the land of informant. The cutting of earth would have caused stagnation of water near the house of informant. The informant and his deceased brother asked the appellants not to cut the earth and on this point an altercation took place between both the parties. The villagers, namely, Bhikhari Rai (P.W. 1), Kamalwash Pradhan (P.W. 2), Jay Ram Pradhan (P.W. 3) came there and tried to pacify the matter but appellant Jairam Pandey did not listen to them. When informant and his brother raised protest appellant Jagdish Pandey ordered for killing on which appellant Jairam Pandey fired from his gun hitting the deceased Jagdayal Pradhan, the brother of informant, who received injuries on his abdomen, chest and arm and fell down. The informant then with the help of villagers carried his injured brother Jagdayal Pradhan on a cot to Dumraon for treatment and when he reached near Dumraon Station his injured brother died. Thereafter, the informant with the dead body of his brother on a tractor came to Dumraon Police Station and got his fardbeyan (Ext. 4) recorded. Since the place of occurrence lies within Semari Police Station. Dumaraon police made endorsement on the fardbeyan for forwarding the same to Semari Police Station and the fardbeyan was handed over to Pradeep Singh (P.W. 8), who at the relevant time was posted at Semari Police Station and had reached. Dumraon Police Station on the same day at about 2.00 p.m. After receipt of fardbeyan he sent the fardbeyan to the Semari Police Station for registering a case and took up the investigation. After investigation charge-sheet under Sections 302/34, 302/109, 440, I.P.C. and 27 of Arms Act was submitted against the appellants and co-accused Jitendra Pandey. After taking cognizance, the case was committed to the Court of Session where the trial of co-accused Jitendra Pandey was separated for conducting an inquiry under the Children Act in respect of his plea that on the day of occurrence he was less than 16 years and charge u/s 440, I.P.C. against the three appellants Jairam Pandey, Jagdish Pandey and Mohan Pandey, charges u/s 302, I.P.C. and Section 27 of Arms Act against appellant Jairam Pandey, charge u/s 302 read with Section 34, I.P.C. against appellants Jagdish Pandey and Mohan Pandey and charge u/s 302 read with Section 109, I.P.C. against appellant Jagdish Pandey were framed. The appellants denied the charges. The case of the appellants as it appears from the trend of cross-examination of prosecution witnesses as well as from the witnesses examined on behalf of the appellants is that on the day of alleged occurrence appellant Jagdish Pandey was at Patna where he had gone on 8.7.84 for participating in the ''saradh'' of one Surajdeo Sastri and he returned from Patna on 10.7.84 and appellant Jairam Pandey was posted as commercial clerk at Tetulmari railway station within the Dhanbad Division of Eastern Railway and the appellants have been falsely implicated in this case. The Court below after trial found all the appellants guilty u/s 440, I.P.C.. It further found appellant Jairam Pandey guilty u/s 302, I.P.C. and 27 of Arms Act, appellant Jagdish Pandey guilty u/s 302 read with Section 109, I.P.C. and appellant Mohan Pandey guilty u/s 302 read with Section 34, I.P.C., and sentenced them as indicated above.
3. In order to prove its case the prosecution has examined eight witnesses. Rajdayal Pradhan (P.W. 7) is the informant. Dr. Bimal Chand Kumar (P.W. 4) is the doctor who had held post-mortem examination on the dead body of deceased Jagdayal Pradhan. Pradeep Singh (P.W. 8) is the I.O. of this case. Ram Mithun Rai (P.W. 5), a police constable, had carried the dead body of deceased to Buxar Hospital for post-mortem examination and the doctor who conducted the post-mortem examination had given him a bottle containing pellets. He has proved the sealed bottle (Material Ext. I). S.I. Kameshwar Prasad Singh (P.W. 6) was posted at Dumraon Police Station where he recorded the fardbeyan (Ext. 4) of informant and made an endorsement (Ext. 3) for forwarding the case to Semari Police Station and had prepared inquest report (Ext. 5). Bhikhari Rai (P.W. 1), Kamalwash Pradhan (P.W. 2) and Jay Ram Pradhan (P.W. 3) are said to be eye-witnesses to the occurrence.
4. Dr. Bimal Chand Kumar (P.W. 4) in his evidence has stated that on 9.7.84 at 4.30 p.m. he held post-mortem examination on the dead body of Jagdayal Pradhan and found the following ante-mortem injuries on the person:
(i) Multiple pellets wounds scattered over the front portion of the chest. The size of the pellets wounds were 1/4" diametre.
(ii) Multiple pellets wounds over the front portion of the abdomen.
(iii) Four pellets wounds over the left side of face.
On deep dissection of the wounds of injury No. (i) on chest, it was found the pellets had perforated the substance of both lungs, sides and the heart. He has further stated that 12 pellets were removed from the substance of the lungs and heart and were preserved and sealed under his signature and handed over to P.W. 5. About the cause of death, he has stated that it was due to shock and haemorrhage as a result of gun fire and time elapsed since death was within 12 hours and the injuries were sufficient to cause death in ordinary course. In cross-examination, he has said that the injuries were possible by one fire and not possible by two independent firing. He has proved his post-mortem examination report (Ext. 2). The evidence of doctor establishes that the death of deceased was homicidal and the time of death tallies with the time of occurrence as given by the prosecution.
5. Rajdayal Pradhan (P.W. 7), the informant, in his evidence has stated that at the time of occurrence he along with his deceased brother Jagdayal Pradhan was at ''darwaja'' of his house when all the three appellants along with co-accused Jitendra Pandey came there. Appellant Jairam Pandey was with his licensee gun, appellant Mohan Pandey was armed with ''bhala'' and Jagdish Pandey and Jitendra Pandey were armed with lathis''. All the aforesaid four persons started cutting a ''merh'' (ridge) in front of the ''darwaja'' of his house and when he and deceased asked them not to cut the ''merh'' they did not listen to them and cut a portion of the ''merh''. At that time P.Ws. 1, 2 and 3 were also there and they also asked the appellants not to cut the ''merh''. Thereafter, appellant Jagdish Pandey ordered to fire on which appellant jairam Pandey fired from his gun hitting the deceased and the deceased after receiving injuries from gun fire fell down and the appellants and co-accused Jitendra Pandey then fled away in their house. He has-further stated that he put the injured on a cot and proceeded to Dumraon Hospital but injured died when he reached Dumraon police station. He then took the dead body of the deceased on a tractor to Dumraon Police Station and when he reached the police station, no officer was present there and the ''Munsi'' who was there told him that his case would be registered on return of the Officer-in-charge. When there was delay in return of the Officer-in-charge of the Police Station the ''Munsi'' told him to go to Semari police Station and he then proceeded for Semari Police Station on tractor but near agumti he met the Officer-in-charge and other officers of Dumraon Police Station who asked him to come to Dumraon Police Station and he then went there where his fardbeyan was recorded and inquest report was prepared and dead body was sent for post-mortem examination.
6. Bhikhari Rai (P.W. 1), Kamalwash Pradhan (P.W. 2) and Jay Ram Pradhan (P.W. 3) supporting the case of prosecution have stated that when the appellants and co-accused Jitendra Pandey were cutting the ''merh'' and when the informant and deceased asked them not to do so appellant Jagdish Pandey ordered to kill on which appellant Jairam Pandey fir d from his gun hitting deceased Jagdayal Pradhan who after receiving injuries fell down and the appellants and co-accused Jitendra Pandey then fled away. P.W. 1 has said that the deceased died when he fell down whereas P.Ws. 2 and 3 have said that deceased died in the way when he was being taken to Dumraon Hospital.
7. Pradeep Singh (P.W. 8), I.O. has said that on 9.7.84 he was posted at Semari Police Station and on that day he received information that some incident had taken place in Chhotaki Dhakaich'' and he then entered this information in Station Diary Entry No. 107 dated 9.7.84 and for verification of this information proceeded to Chhotaki Dhakaich where he came to know that some persons had gone to Dumraon Hospital and then he proceeded to Dumraon where he returned at about 2.00 p.m. where he met S.I. Kameshwar Prasad Singh (P.W. 6) who informed him that the dead body had been sent to post-mortem and handed over him the fardbeyan and inquest report. He then sent fardbeyan (Ext. 4) to Semari Police Station for registering a case and started investigation. He has further stated that he reached the place of occurrence at about 4.00 p.m. on the same day. According to him, the place of occurrence is the land of informant which is situated south to the main ''darwaja'' of the house of informant and joins with the main lane. He has further found that a ''merh'' which was raised to stop the flow of water was found cut. About the blood stains, he has said that he did not find any blood stains because of heavy rain and stagnation of water at the place of occurrence. He has further stated that he found trampling marks on the soil of the ''merh''.
8. Seven witnesses have been examined on behalf of the appellants. Narendra Deo (D.W. 1) has said that his father died on 27.6.84 and on 9.7.84 ''saradh'' of his father was held at Patna and this ceremony was attended by appellant Jagdish Pandey, who happens to be one of his relations and who had come to Patna on 8.7.84 and after ''saradh'' ceremony he returned to his village on 9.7.84. Radhey Shyam Pandey (D.W. 2) is the ''mama'' of D.W. 1 and he has also stated that in the ''saradh'' ceremony of father of D.W. 1 which was held on 9.7.84 he had met appellant Jagdish Pandey at Patna who had come to Patna to attend the ''saradh'' ceremony. He is an assistant in the Secretariat at Patna but in cross-examination has stated that for attending the ''saradh'' ceremony he had not taken any leave. In para 8 of his cross-examination, he has stated that for the first time he is deposing that appellant Jagdish Pandey had attended the ''saradh'' ceremony of father of D.W. 1 on 9.7.84. The Court below has rightly rejected their evidence because both happens to be the relations of appellant Jagadish Pandey. Man Chandra Prasad Sinha (D.W. 3), a clerk in D.R.M. office, has stated that appellant Jairam Pandey is working as commercial clerk in the officer of D.R.M., Dhanbad since 1982 and in the year 1982 his jurisdiction was Tetulmarhi Railway Station. He has proved an entry dated 7.7.84 said to be in the writing and signature of appellant Jairam Pandey (Exts. A & A/1) in the daily Trains-cum-summary book and writing and signature of appellant Jairam Pandey in a balance-sheet of the month of June 1984 (Ext. B), writing and signature of appellant Jairam Pandey in outstanding list of June 1984 (Ext. C). In cross-examination, he has said that on Ext. A there is neither a seal of Station nor certificate of any officer and the aforesaid entry was not made in his presence. He has further stated that in the register in which Ext. A has been proved by him there is no signature or any date by any one on any other page of the register. Paras Nath Thakur (D.W. 4) has stated that the deceased was son-in-law of Badri Thakur and there was a dacoity case against the sons of brother of Badri Thakur in which deceased and informant were making ''pairvi''. Bishwanath Pradhan (D.W. 5) has stated that the deceased was son-in-law of Badri Thakur and informant had stood a bailor of Deopujan Thakur, son of Badri Thakur, in a criminal case. He has further stated that Sheo Lakhan Thakur is the nephew of Badri Thakur and he was an accused in a case in which Jay Ram Pradhan (P.W. 3) was his bailor. He has proved the bail-bond (Ext. D). Baijnath Pandey (D.W. 6) has said that the deceased was murdered in a field and ''hulla'' was raised in the house before sun rise and he then went to the place and found the dead body of the deceased in a field and the dead body was carried on a cot. Pashupati Nath Upadhyay (D.W. 7) has proved the bail-bond (Ext. D/1) executedby Badri Thakur and informant.
9. So far the alibi of appellant Jagdish Pandey is concerned, we find that D.W. 1 and D.W. 2 who have deposed about it are own relations of this appellant and their evidence on this point cannot be relied upon. The other defence witnesses have simply stated that the informant once stood bailor of son of Badri Thakur in a criminal case and Badri Thakur was father-in-law of deceased and informant and deceased used to make ''pairvi'' in a case in which sons of brother of Badri Thakur were accused. If their evidence is believed, it does not disclose any reason why the appellants would be falsely implicated in this case. Admittedly, the appellants had no enmity with informant or deceased or even with Badri Thakur who is said to De the father-in-law of deceased. In view of the evidence of informant, P.W. 1, P.W. 2 and P.W. 3 the evidence of D.W. 6 that deceased was murdered in a field, it cannot be accepted especially in view of his evidence that he came to know that the name of appellants figured in this case but he did not make any inquiry from them which is quite contradictory. So we find that the Court below has rightly rejected the evidence adduced on behalf of defence.
10. Learned Counsel appearing on behalf of appellants has submitted that the I.O. (P.W. 8) in his evidence has admitted that on 9.7.84, he received information that some occurrence had taken place in the village and he made a Station Diary Entry No. 107 dated 9.7.84 and thereafter proceeded to village Chhotaki Dhakaich. According to him, this station diary entry which is First Information Report has not been produced by the prosecution and the fardbeyan (Ext. 3) cannot be treated the F.I.R. of this case and it is hit by Section 164 of the Code of Criminal Procedure particularly in view of the admitted fact that this fardbeyan was recorded on 9.7.84 at 1.15 p.m. as per the evidence of P.W. 6 and the evidence of I.O. (P.W. 8) that on 9.7.84 from 11.30 a.m., he started writing the case diary of this case. It is true that fardbeyan (Ext. 3) was recorded on 9.7.84 at 1.15 p.m. It is also true that P.W. 8 in para 6 of his evidence has stated that on 9.7.84 from 11.30 a.m., he started writing the case diary. The evidence of P.W. 8 is that on 9.7.84 he received information that some occurrence had taken place at Chhotaki Dhakaich. In para 6 of his evidence, he has further stated that he made the entry in station diary to the effect that he heard rumours that an unpleasant incident had taken place. But, he did not write what had happened and with whom. Now, the question arises whether the entry of this information in the station diary can be treated as F.I.R. of this case. The First Information Report is not defined under the Code of Criminal Procedure but it certainly means information received and recorded u/s 154 of the Code of Criminal Procedure. Section 154(1) of the Code of Criminal Procedure, 1973 reads as follows:
154. Information in cognizable cases-(1) Every information relating to the commission of a cognizable offence, if given orally to an Officer-in-Charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
11. From the aforesaid provision, it is clear that it is only the information relating to the commission of cognizable offence given to the Officer-in-charge of the Police Station which authorises him u/s 157(1) of the Code of Criminal Procedure to take steps for investigation of the case. If the information is not definite enough to enable the police to start investigation and it is quite vague, it cannot be treated as First Information Report and it will not authorise the police to start investigation. In the present case admittedly, the I.O. simply heard rumours that an unpleasant incident had taken place in the village and he then made an entry to this effect in the Station diary and left the police station for the village. He had not received information of commission of any offence what to talk of the information about the commission of any cognizable offence. The happening of an unpleasant incident does not mean that a crime had been committed. When the I.O. went to village there he came to know that some persons had gone to Dumrao Hospital. There also he did not receive information of commission of any offence. He then went to Dumraon where he was given fardbeyan (Ext. 3) by P.W. 6 along with inquest report. The evidence of P.W. 8 is that after receipt of this fardbeyan and inquest report he assumed the jurisdiction of investigating the case and started investigation. In view of this matter, his earlier evidence that he on 9.7.84 from 11.30 a.m. started writing case diary does not carry any weight. The learned A.P.P. has submitted that even the case diary does not show that before receipt of fardbeyan (Ext. 3), the I.O. had taken any step towards investigation of the case such as visiting the place of occurrence or recording the statement of any witness because it is not mentioned in the case diary that before receipt of fardbeyan any such step was taken by the I.O. except that he recorded the station diary entry about the rumours that an unpleasant incident had taken place in the village. We, therefore, find that the decision cited by learned Counsel appearing on behalf of appellants in the case of State of
12. The next point argued on behalf of appellants is that the place of occurrence admittedly falls within Semari police station but in spite of it the fardbeyan was lodged at Dumraon police station. He has further submitted that Bhikhari Rai (P.W. 1) in his evidence has admitted that at the relevant time, one Jagarnath Pradhan was posted as Police Inspector at Dumraon police station and this witness owns a land along with this Jagarnath Pradhan in his village. He has further submitted that Jay Ram Pradhan (P.W. 3) in his evidence has admitted that this Jagarnath Pradhan belongs to his village and ''gotra''. On this basis, it has been argued that informant deliberately went to Dumraon police station in order to lodge false fardbeyan because Jagarnath Pradhan was posted there and the informant did not go to Semari police station where the place of occurrence lies and the case of prosecution that the deceased was being taken to Dumraon Hospital for treatment is not true because Bhikhari Rai (P.W. 1) in his evidence has stated that after receiving the injuries, the deceased fell down and died. He has argued that if the deceased had died at the spot as per the evidence of P.W. 1 the question of taking him to the Dumraon Hospital could not have arisen. It is true that P.W. 1 has stated that after receiving the injuries, the deceased fell down and died. On the other hand, informant, P.W. 2 and P.W. 3 have said that while the deceased was being taken to the Dumraon Hospital and when they reached Dumraon Station, the deceased died before reaching Hospital. So we find that there is nothing unusual if the deceased immediately after the occurrence was being taken to hospital. P.W. 1 is hot a medical expert who could say that the deceased died at the spot. Even in cases where the death takes place at the spot, the deceased is immediately taken to hospital with the hope that he may survive.
13. So far as the question of posting of one Jagarnath Pradhan as Police Inspector at Dumraon police station at the relevant time is concerned, we find that this Jagarnath Pradhan neither recorded the fardbeyan of informant nor he took any part in investigation of this case: Admittedly fardbeyan was recorded by S.I. Kameshwar Prasad Singh (P.W. 6) who after recording the fardbeyan made endorsement (Ext. 3) on the same day for forwarding the case to Officer-in-charge Semari police station for necessary action and handed over the fardbeyan to P.W. 8 When he met P.W. 8 on the same day. On the point of informant''s going to Dumraon police station, we find that the evidence of I.O. that Dumaraon is situated at about 2 kms. from the village of occurrence has not been disputed. He has further stated that he had gone to Dumraon from the village of occurrence on foot and it took only about one hour. The informant in para 15 of his evidence has stated that because Dumraon police station is nearer to his village and therefore he first went there and when he met the Officer-in-charge of Dumraon police station in Dumraon he told that he was going to Semari police station but he was asked by Officer-in-charge Dumraon police station to come to Dumraon police station. Therefore, he went there and got his fardbeyan recorded. We, therefore, find that no adverse inference can be drawn by the fact that the informant got his fardbeyan recorded at Dumraon police station.
14. Learned Counsel appearing on behalf of appellants has further argued that the informant in his evidence has stated that along with his ''merh'', some portion of his land was also cut and by cutting of the ''merh'' water had stored in his land and some water had entered his house also damaging his husk kept in a bag which was seen by the I.O. but the I.O. in his evidence has stated that he has not stated in his case diary that anything kept in the house of informant was damaged by the entry of water. We find that the I.O. in his evidence has stated that he found that half portion of the ''merh''was cut and he also found trampling marks on the soil of remaining ''merh''. If the I.O. in his case diary has not stated that the water had entered the house of informant and had damaged some of his articles, it cannot be said that the evidence of informant is not true on this point particularly in view of evidence of I.O. that he had found that there was water stagnation in the ''parti'' land of informant. Lastly, learned Counsel appearing on behalf of the appellants has stated that in the inquest report (Ext. 5), it is not/mentioned that the clothes found on the body of deceased had any mark of hole made by tiring and it is also not mentioned that the clothes worn by deceased were smeared with mud whereas the evidence of prosecution witnesses, who have claimed themselves to be eye-witnesses, is that after receiving injuries, the deceased fell on the ground where there was water and his entire body was smeared with mud. We find that in the inquest report, it is clearly mentioned that there were marks of blood on the abdomen, chest and left arm appearing to be caused by fire-arm and about the opinion of witnesses and police officer as to cause of death it is stated that the death was due to fire-arm. In this view of the matter, in the column meant for inspection of clothes, ornaments, weapons and other articles found near the dead body, if it is not mentioned that the clothes worn by deceased at the time of preparing inquest report were found smeared with mud or having holes caused by fire-arm it is not a ground to disbelieve the entire evidence of prosecution.
15. In this case, we find that appellant Mohan Pandey has also been convicted u/s 302 read with Section 34 and 440, I.P.C.. The case of prosecution is that appellant Jagdish Pandey ordered on which appellant Jairam Pandey fired on deceased from his gun. About appellant Mohan Pandey the prosecution has not made out any case that he also took part in the assault to deceased. It is true that prosecution witnesses have stated that appellant Mohan Pandey was also there and started cutting the ''merh'' and he was armed with ''bhala'' but Kamalwash Pradhan (P.W. 2) in para 13 of his evidence has stated that he does not know whether appellant Mohan Pandey is suffering from polio since his childhood but after attaining ''hosh'' he is seeing the left leg of Mohan Pandey defective. If Mohan Pandey was armed with a ''bhala'', there was no reason that why he did not take part in assault to the deceased after appellant Jagdish Pandey ordered to kill the deceased when he after making all preparations, as alleged, had gone with other appellants to the place of occurrence. His presence at the place of occurrence appears quite doubtful and he is, therefore, entitled to get the benefit of doubt.
16. Considering the entire evidence adduced on behalf of prosecution, we find that so far as the case of appellants Jagdish Pandey and Jairam Pandey is concerned, the prosecution has been able to prove its case beyond all reasonable doubts and the judgment and order of the Court below convicting and sentencing both these appellants does not require any interference by this Court. But, so far as the case of appellant Mohan Pandey is concerned, as stated earlier he is given benefit of doubt and he is acquitted for the charges framed against him.
17. In the result, Cr. Appeal No. 500 of 1987 is dismissed and Cr. Appeal No. 396 of 1987 is also dismissed with the modification that appellant Mohan Pandey is acquitted and he is discharged from the liability of bail-bonds. Bail-bonds of appellants, Jagdish Pandey and Jairam Pandey are cancelled and they are directed to surrender before the Court below to serve out the remaining period of sentence passed by the trial Court.
R.N. Prasad, J.
18. I Agree.
