minal Appeal No 175 of 1967
Appeal by special leave from the judgment and order dated May 17 1967 of the Allahabad High Court Lucknow Bench in Criminal Appeal No 72 of 1967 and Capital Sentence Reference No 9 of 1967
section P Sinha
and M I Khowaja for the appellants
G N Dikshit and O P Rana for the respondent
The Judgment of the Court was delivered by Sikri J
This appeal by special leave by Ram Charan Duila rey and Ram Bux is directed against the judgment of the Allahabad High Court Lucknow Bench confirming the convictions under section 302 read with section 34 IPC Ram Charan and Dularey were sentenced to death while Ram Bux was sentenced to imprisonment for life
355 The relevant facts in brief are as follows  On December 24 1965 at about 8 am four persons started for Lucknow on two cycles Shanker Singh and Radhey Shyam were on one cycle and Surat Singh and Bachchu Lal on another
Radhey Shyam had some business in Lucknow including consulting Sri Pal Singh Advocate PW 20 regarding the preparation of a reply to a notice received by him
After the work was finished the four left Lucknow
It appears that Radhey Shyam was sitting on the carrier of the cycle driven by Shankar Singh and Bachchu Lal was sitting on the carrier of the cycle driven by Surat Singh
Radhey Shyam carried a leather bag in which he had kept money which he had received as the sale proceeds of jau sold by him in Lucknow
For some reasons which need not be detailed Shankar Singh and Radhey Shyam went ahead of Surat Singh and Bachchu Lal and the distance between them when they came near about the scene of occurrence was according to Surat Singh between 1 12 and 2 furlongs
When Shankar Singh and Radhey Shyam reached near the drain of Rastogi they met Ram Charan accused
Radhey Shyam got down from the cycle and started walking with Ram Charan while Shankar Singh followed a little behind
Then the attack on Radhey Shyam took place and is described thus by Shankar Singh  When we reached the grove of Durga Maharaj  then Ram Bux and Dularey accused were sitting at the well
Then Ram Charan by extending his hands Kantiya Kar caught hold of Radhey Shyam and threw him down on his face and after drawing his hands towards his back sat down catching him
Dularey and Ram Bux came up running
Dularey had a Banka and Ram Bux had a lathi
Ram Charan told Dularey Bring the Banka why are you delaying it  Thereupon I cried out
Then Dularey gave 5 6 7 Banka blows to Radhev Shyam on his neck
As I was crying so Ram Charan saia Beat Thakurwa
He will go to the village and tell that such and such persons had hacked Radhey Shyam  At this Ram Bux gave 5 6 Lathi blows to me
By that time Surat Singh and Bachoo Mahraj also came there and Rupan also came
 Surat Singh corroborates this statement
He says that he saw all this from a distance of 1 i furlongs
Bachchu Lal PW 7 also corroborates this version
He says that on seeing the attack he and Surat Singh ran towards the scene of occurrence
He further adds that when they were at a distance of about 30 35 paces the accused ran away
The First Information Report was lodged at the police station four miles from the scene of the occurrence at 1730 hours by Shanker Singh
356 The learned counsel for the appellants says that the First Information Report was written much later than the time men tioned above
He relies first on the fact that the first page of the First Information Report was written very closely and the second page written not so closely
He suggests that the draft was prepared sometime later and then it was copied into the Register in which first information reports are written the writer having left only two pages for the report to be transcribed wanted to be quite certain that the report would finish in two pages
This suggestion is however denied by Liaqat Hussain PW 6 who was posted as Head Moharrir at the police station Kakori in 1965
He says that he wrote on the first page of the report closely because he wanted that the whole matter should be completed on that page and that there was no other reason after finishing the first page when he started writing on the second page then he did not write closely as the report had come to an end
He denied the suggestion that two pages were left for writing this report
This explanation seems to be true
The special report of this case was sent according to this witness on December 24 1965 at 755 pm through Abdul Rashid Constable who was called as Court Witness
He says that he delivered the special report at the place of SSP I at 910 am on December 25 1965
The special report was sent to SSP DM Additional SPCO SDM and DCRRS on Invoice Book at No 54 which was exhibited in Court
The learned counsel criticizes his evidence on the ground that there is no reason why he should have slept on the way
The reason given by Abdul Rashid for breaking his journey on the way is that the ekka drivers and riksha drivers were charging too much
In our view there is no force in this contention of the learned counsel for the appellants
The second ground of attack against the First Information Report is that the report itself discloses that it could not have been dictated by Shanker Singh
He says that Shanker Singh was literate and yet the First Information Report bears his thumb mark
He further says that it mentions the names of the fathers of Radhey Shyam Ram Charan Mata Pershad Dayal Lallu and Ram Bux but in cross examination Shanker Singh admitted that he did not know the names of Ram Charan s father and Rain Dayal s father and also he did not know the name of Ram Bux s father
He however further added in cross examination that at the time he gave the First Information Report the names of the fathers of Ram Charan and Ram Dayal were then in his memory
Another fact relied on by the learned counsel is that the First Information Report contains the word sazish while in cross examination Shanker Singh admitted that he did not know the meaning of this word
He urges that looking at all these circumstances it is clear that the First Information Report was either 357 written at the scene of occurrence after the Investigating Officer had gone there or that a draft was first written on a piece of paper some people supplying the names of the fathers of the various persons and suggesting words
We are however unable to accede to this contention
It may well be that the chowkidar who accompanied Shanker Singh supplied the name of the father of a particular person and the Head Moharrir may have substituted a word or two of his own without changing the meaning
The Investigating Officer went straightaway to the scene of the occurrence and started investigation
None of these facts in our opinion cast doubt on the prosecution story
It may be that Shanker Singh is able to sign but he put his thumb impression not only on the First Information Report but on his statement under section 164 Cr
PC and this statement before the Committing Magistrate
It may be that It was felt safer to have his thumb impression which he could not effectively deny later
But the fact that the special report was sent on December 24 1965 in the evening dispels any doubt about the fact that the First Information Report was lodged at 530 pm on December 24 1965
Dealing with the eye witnesses the learned counsel drew our attention to the endorsement which was made by the Magistrate who took down the statements under section 164 Cr
Below he statements is appended a certificate in the following form Certified that the statement has been made voluntarily
The deponent was warned that he is making the statement before the 1st class Magistrate and can be used against him
Recorded in my presence
There is no police here
The witness did not go out until all the witnesses had given the statement
 This certificate appears below the statements of Shanker Singh Surat Singh and Bachchu Lal
The learned counsel rightly suggests that the endorsement is not proper
But we are unable to pay that it follows from this endorsement that any threat was given to these witnesses or that it necessarily makes the evidence given by the witnesses in Court suspect or less believable
The learned counsel further relies on the following passage rom the judgment of Dhavle J in Emperor vs Manu Chik1 There is yet another circumstance which calls for remark and that is the examination of Ladhu and Rebi among other witnesses under section 164 Criminal PC it was pointed out by Prinsep J in the well known case in Queen Empress vs Jadub Das2 that a statement of a 1 AIR 1938 Pat 290 295
2 358 witness obtained under this section always raises a suspicion that it has not been voluntarily made and that the section was not intended to enable the police to obtain a statement from some person in that case it was an incriminating statement and as it were to put a seal on that statement by sending in that person to a Magistrate practically under custody to be examined before the judicial inquiry or trial and therefore compromised in his evidence when judicial proceedings are regularly taken
 These observations were dissented from by the Andhra Pradesh High Court in In re  Gopisetti Chinna Venkata Subbiah1 and Subba Rao CJ preferred the following observations of the Nagpur High Court in Parmanand vs Emperor1 We are of the opinion that if a statement of a witness is previously recorded under section 164 Criminal Procedure Code it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout the mere fact that his statement was previously recorded under section 164 will not be sufficient to discard it
The Court however ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness it can be acted upon
 We agree with Subba Rao CJ that the observations of the learned Judges of the Nagpur High Court lay down the lay correctly
In the result the appeal fails and is dismissed
VPS Appeal dismisses 1 ILR 2 AIR 1940 Nag 340


Summary:
The statements of eye witnesses to a murder were recorded under section 164 Criminal Procedure Code and a certificate was appended to each of the statements to the effect that the deponent was warned that he was making the statement before a Magistrate and that it might be used against him
On the question as to the weight to be attached to the evidence given by the witnesses in court HELD  It did not follow from the endorsement that any threat was given to the witnesses or that it necessarily made their evidence in court suspect or less believable
357 G If a witness in his evidence in court sticks to the version given by him in the statement under section 164 Cr
PC the mere fact that the statement was previously recorded under the section is not sufficient to discard his evidence
The only inference that can be drawn is that there was a time when the police thought the witness may change his evidence
The Court
however ought to
receive the evidence with caution
358 D Observations in Parmanand vs Emperor AIR 1940 Nag 340 344 and In re  Gopisetti Chinna Venkatasubbialh
 ILR  639
approved
Observations contra in Emperor vs Manu Chik AIR 1938 Patna 290 295 disapproved