^/R/ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLEMR. R.N. CHANDRAKAR, JJ. Criminal ADDealNo,1147 ofi994 Marwadi (dead) and others - Versus - The State of Madhya Pradesh (now the State of Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- ,„ ' T.P.Sharma Judge iE 1 HON'BLE MR. JUSTICE R.N. CHANDRAKAR 3 o Sd/- ^ R.N. Chandrakar Judge Post for Dronouncementof judament on <-){ September. 2011 Sdf- -. 30QGE -9-2011 k-!"';li- 1 \^y~ RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.06 12:32:44 +0530 ...-^^g, ^fc/ ^ ^^ . T; IIIS. i'"1-^^ il°llte^ "fWzSll^'" CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. APPELLANTS: (In Jail) Criminal Appeal No.1147^L1994 1. Marwadi (Died) RESPONDENT: 2. Malarram son of Bisahuram, aged 24 years, Agriculturist. 3. Sonsai son of Kondaram, aged 25 years, Agriculturist. 4. Nainsukh son of Budhram, aged 30 years service. All resident of Village Inderpur, Police Station Ambikapur,! Distt. Surguja, M.P. (nowC.G.) Versus The State of Madhya Pradesh (now the State of Chhattisgarh) {Criminal appeal under Section 374 (2) ofthe Criminal Procedure Gode} Present: Appellant No.1 died. Mr. V.C. Ottalwar with Mr. Shakti Raj Sinha, counsel for appellants No.2 to 4. Mr. Neeraj Mehta, Panel Lawyer for the State/respondent. JUDGMENT (Delivered oh 26th September, 201 1) The followina iudament of the Court was passed bv T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 19-9-1994 passed by the 2nd Additional Sessions Judge, Ambikapur in Sessions Trial No.273/89, whereby & whereunder ilearned Additional Sessions Judge after hplding the appellants gyilty for formation of unlawful assembly armed with deadly weapons having its common object to culpable homicide amounting to murder and in ^ (i,,;Lil'!"^ uW furtherance of common object of the assembly for committing the murder of Rajaram, convicted the appellants under Sections 147, 148 & 302 read with Section 149 of the IPC and sentenced them to undergo Rl for one year, Rl for one year and imprisonment for life, respectively. 2. Conviction is impugned on the ground that without any iota of evidence and admissible evidence, the trial Court has convicted & sentenced the appellants and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 7-12-1987 at about 9 a.m. unfortunate deceased Rajaram was working in the field situate at Parsa Nakhi Khar, Village Bakmer, Police Station Ambikapur, along with other persons which was owned by Navapariha; appellants Malar Ram Uraon & Marwadi (since deceased) came to the field; other appellants Sonsai, Nainsukh, juvenile offenders Bulkan, Mukund & Mansukh accompanied them; Malar Ram was holding axe, Marwadi was holding betel axe and remaining accused were holding sticks; appellants Malar Ram & Marwadi came near Rajaram whereas remaining accused stayed at some distance. Rajaram requested both the persons that he is ready to receive punishment which they will give, but not to kill him, he requested with folded hands, but on account of land dispute, Malar Ram attacked Rajaram by axe over his head which Rajaram saved, thereafter, Marwadi assaulted Rajaram by betel axe over his head and caused fatal injuries. Rajaram fell down then, Malar Ram & Marwadi went back and fled away from the spot. Other accused/appellants also accompanied them. Rajaram was badly injured and was unconscious. Other persons namely Malik, Prithvinath & Asharam immediately took him to Government Hospital, Ambikapur. 4. After some time, Ambikapur police came to the spot whom Rampati (PW-1) lodged dehati nalsi vide Ex.P-1 at 1 p.m.. FIR was recorded on the basis of dehati nalsi. Injured Rajaramwas examinedat aboy1| 11.45 a.m. by Dr. R.K. Bajaj (PW-7) who intimated the police vide Ex.P-14 at 1.15 p.m. and on the basis of information Ex.P-14, the police came to the hospital and gave requisition for examination of Rajaram vide Ex.P-21. Dr. R.K. Bajaj (PW-7) noticed incised wound of4" x %" x bone deep over middle of head, bone beneath the injury was found cut, part of braih came out from the injury badly stained with blood and active bleeding; bruise over forehead of 3" x 3";andswelling of 2" x 2" over right parietal W.V region. Rajaram was semi-conscious. He was advised for X-ray. He was admitted in the hospital for immediate treatment. During the course of treatment, he died on second day at 12.05 p.m.. Death of Rajaram was intimated to the policevide Ex.P-22 and the police recorded morgue intimation vide Ex.P-23. After summoning the witnesses, inquest over the dead body was prepared vide Ex.P-12. Dead body was sent for autopsy to District Hospital, Ambikapur. Dr. P.K. Banerjee (PW-15) conducted autopsy vide Ex.P-19and found treated and stitched injuries of 7" over head with swelling on edges. Injuries were ante mortem in nature. Depressed fracture of parietal bone, blood inside brain under scalp from frontal to, occipital and both sides' temporal regions with fracture of sagital suture 7" in length extending from frontal bone to occipital bone. He has not noticed other adverse thing. Mode of death was shock. After recording dehati nalsi on 7-12-1987, the Investigating Officer took appellant Malar Ram into custody, he made discloser statement of axe vide Ex.P-2 on 7-12-1987 and same was recovered at the instance of Malar Ram vide Ex. P-3. Appellant Marwadi (since deceased) made discloser statement ofsmall betel axe vide Ex.P-4 and same was seized at his instance vide Ex.P-5. Appellant Sonsai also made discloser statement of stick vide Ex.P-6 and same was recovered at his instance vide Ex.P-7. Mansukh made discloser statement of stick vide Ex.P-8 and same was recovered at his instance vide Ex.P-9. Bulkan made discloser statement of stick vide Ex. P-10 and same was recovered at his instance vide Ex.P-11. Sealed clothes of the deceased were seized vide Ex.P-15. Bed head ticket was seized vide Ex.P-16. Statement of the witnesses were recorded under Section 161 of the CrPC. Spot map was preparedvide Ex.P-24. 5. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Ambikapur, who committed the case to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge received the case on transfer for trial. Charge sheet of juvenile offender was filed before the Juvenile Justice Board. 6. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as eighteen witnesses. The accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them and pleaded innocence &false implication. They have examjned defence witnesses Biruch (DW-1) & r •»r ^ K •V Ramlal (DW-2) and have taken defence that at the time of incident, Rampati (PW-1) was not present on the spot, he was at school. 7. After providing opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced theappellants in the aforesaid manner. 8. We have heard learned counsel for the pari:ies, perused the judgment and record of the trial Court. 9. Learned counsel for the appellants vehemently argued that in the present case, the prosecution has concealed material evidence and material documents; even it has concealed the first information report. FIR has not been intimated to the Magistrate under Section 157 of the CrPC. The investigating agency has committed grave illegality and caused serious prejudice to the appellants. Even the prosecution has not examined the Investigating Officer and the defence has been denied the opportunity and right of its cross-examinatio'n. In absence offirst information report, evidence of the Investigating Officer, intimation to the Magistrate under Section 157 ofth§CrPC and hide & seek tendency of the prosecution, no definite inference would be possible that as to who has caused homicidal death of Rajaram, whether the appellants have formed unlawful assembly and were knowing the object of the unlawful assembly. There is inconsistency in ocular and medical evidence and eventhere is inconsistency of two doctors relating to injuries. As per Dr. R.K. Bajaj (PW-7) and his medical examination report Ex.P-13, he has first examined the injured and noticed three injuries, but second day when autopsy was conducted by Dr. P.K. Banerjee (PW-15) vide Ex.P- 19, he has noticed only one injury. As per Ex.P-13 & Dr. R.K. Bajaj (PW- 7), size of injury found over head of the injured was 4" x %" x bone deep, but in autopsy report, size of the injury was mentioned as 7" ih length, about double. The prosecution was under obligation to prove its case beyond all reasonable doubts and the defence was only required to raise doubt on caseof the prosecution. In the present case, entire prosecution case is full of doubt and no definite opinion would be possible, there is false story; who is truthful witness, who is wholly reliable witriess and who is partially reliable witness is not clear. Even as per case of the prosecution and evidence of the prosecution, pnly appellant Marwadi (since deceased) has caused fatal injuries resulting in death of the :^N\ deceased. Marwadi died during the pendency of appeal. In absence of any evidence against other appellants namely Malar Ram, Sonsai & Nainsukh, they are entitled for acquittal. lO.Learned counsel for the appellants placed reliance in the matter of MahabirSingh and another v. State in which the Delhi High Court has held that motive to commit the crime is a double edged weapon. If it can be a ground to commit a crime, it can also be an equally good reason to falsely inculpate innocent persons. The evidence, therefore, requires to be scanned with a note of caution. The Delhi High Court has further held that non-compliance of Section 157 of the CrPC bound to cast shadow on the prosecution case. Learned counsel further placed reliance in the matter of Gabbu B. Lodhi and others v. State of Madhya Pradesh in which the Madhya Pradesh High Court has held that in absence of proof of sending copy of FIR to the Magistrate, possibility of FIR ante-dated cannot be ruled out. The Madhya Pradesh High Court has further held that non-disclosure of incident before police or any other person keeping silence for long period by eye witness, his entire evidence is liable to be discarded being abnormal. Learned counsel also placed reliance in the matter of Ramcharan and etc. v. State of Chhattisgarh in which this Court has held that suppression of origin and genesis of offence by prosecution, discrepancies about the time of incident and FIR, first on the point of time on the basis of which police authority reached. place of occurrence and took complainant to police station suppressed, conviction is not sustainable. Learned counsel relied upon the matter of Arjun Marik and others v. State of Bihar in which the Supreme Court has held that non-compliance of the provisions of Section 157 of the CrPC and non-sending of intimation forthwith lead to the conclusioh that the FIR had been recorded much later than one as shown in the said documents. Learned counsel further relied upon the matter of Tulshiram Bhanudas Kambale and others v. State of Maharashtra in which the Bombay High Court has held that non-sending of intimation under Section 157 of the CrPC casts doubt and gives presumption that the FIR was ante-dated. Learned counsel also relied upon the matter of 1 1979Cri.L.J. 1159 22004Cri.L.J.2001 3 2007 Cri.L.J. 4223 4 1994 SCC(Cri) 1551 52000Cri.L.J.1566 '^ Nankun & others v. State of M.P. (now C.G.) in which this Court has held that if some accused were acquitted on the basis of same set of evidence, other accused are also entitled for same treatment and entitled for acquittal. 11.0n the other hand, learned State counsel vehemently opposed the appeal and submitted that there is some discrepancy and laches in investigation, but same are not sufficient to discard the testimony of eyewitnesses or not sufficient for discarding entire evidence of the prosecution witnesses. Even faulty investigation or interested investigation is not sufficierit to discard case of the prosecution, erring officer may be taken into task and sufficient action may be taken against erring officer. Learned State counsel further submitted that evidence of Rampati (PW-1)who has lodged dehati nalsi, Devnarayan (PW-13) & Om Prakash (PW-14) is sufficient to establish the fact that the appellants have formed unlawful assembly having its common object to kill Rajaram and in furtherance of common object, members of ynlawful assembly i.e. the appellants herein along with other juvenile offehders have committed homicidal death amounting to murder of Rajaram. After appreciating evidence available on record, the trial Court has rightly convicted and sentenced the appellants as aforementioned. 12.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 13.1n the present case, the appellants have not disputed injuries found over the body of Rajaram but have tried to dispute his homicidal death as a result of such injuries on the ground of ihconsistency in medical evidence. As per evidence of Dr. R.K. Bajaj (PW-7) and his report Ex.P- 13, three injuries were found over the body of the deceased. As per autopsy report Ex.P-19 and evidence of Dr. P.K. Banerjee (PW-15), one injury was found over head of the deceased. Size of the injury was different in Ex.P-13 and Ex.P-19. Dr. R.K. Bajaj (PW-7) has examined Rajaram at 11.45 a.m. and intimated to the police vide Ex.P-14 at 1.15 p.m.. Police came at about 3.10 p.m. and gave requisition for examination of the deceased vide Ex.P-21 on which Dr. R.K. Bajaj (PW- 7) noted the injuries sustained by the deceased on back side of requisition, vide Ex.P-13. Police has seized the bed head ticket which 2010 (2) C.G.L.J. 483 (DB) ry,,.-A j?| :]|i . , •f'i? '''•': :N'.^.:1?i. M ^^.^[^ % •-/ was primary evidence in the case, but for the reasons best known to the prosecution it has not proved such bed head ticket. Defence has cross- examined Dr. R.K. Bajaj (PW-7) but has not suggested anything that he has not found aforesaid three injuries on the person ofthe deceased and has concocted the document Ex.P-13. In other words, his evidence appears to be natural, he has categorically deposed that he has examined Rajaram at 11.45 a.m., he has sent intimation at 1.15 p.m. to the police vide Ex.P-14 and when the police came and provided requisition Ex. P-21, he has mentioned injuries found over the body of Rajaram on the document Ex.P-13. In absence of any adverse suggestion, we are not inclined to reject or discard the evidence of Dr. R.K. Bajaj (PW-7) on the ground that he has mentioned the injuries in Ex.P-13 on the basis of his previous report, especially when he had treated the injured at hospital at 11.45 a.m. and also at 3.10 p.m.. 14. Dr. P.K. Banerjee (PW-15) has specifically deposed that he has notieed injury over head of the deceased of 7" in length but in Ex.P-13, lengthof injury was mentioned as 4". Notable thing is that as per evidence of Dr. P.K. Banerjee (PW-15), he has noticed stitched/treated injury, fracture and deposit of blood beneath the injury. 15.At the time of surgical treatment, definitely, length of injury caused and length of wound could not be one and same, there may be considerable change in dimension.on this ground evidence of Dr. P.K. Banerjee (RW- 15) cannot be discarded. He has also noticed swelling over head ofthe deceased which has also been noticed by Dr. R.K. Bajaj (PW-7). Dr. P.K. Banerjee (PW-15) has not noticed another injury i.e. bruise found over forehead. Only on this ground, his evidence cannot be discarded. Evidence of both the doctors is natural, inspires confidence and same were sufficient to establish that death of Rajaram was homicidal in nature. 16.As regards complicity of the appellants in the crime in question, conviction is substantially based on evidence of Rampati (PW-1), Devnarayan (PW-13) & Om Prakash(PW-14). 17.1n the present case, the prosecution has not examined the investigating officer and has not proved the so called FIR registered in Crime No.832/87. The alteged dehati nalsi Ex.P-1 has been recorded at 1 p.m.. On perusal of evidence of Rampati (PW-1), Devnarayan (PW-13) & Om '^ 8 Prakash (PW-14), Dr. R.K. Bajaj (PW-7), Prithvinath (PW-4) & Aashram (PW-5), it clearly reveals that after receiving intimation Ex.P-14, the police officer reached to the hospital and served requisition Ex.P-21, and simultaneously they proceeded for the spot. Intimation recorded on the basis of Ex.P-14 would be the FIR which is a brief description of the person admitted in the hospital, but detailed information relating to the incident finds place in dehati nalsi Ex.P-1 alleged to have been recorded at 1 p.m.. Normally, there cannot be more than one FIR but if police receives any information by telephone i.e. brief information that some incident took place, without any details and if the person who witnessed the incident gives detailed information thereafter, same can be treated as FIR. IS.While dealing with the validity of second FIR, the Supreme Court in T.T. Antony v. State of Kerala and others has held that there can be no second FIR and consequently there can be no fresh investigation in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. Paras 17 & 18of the said judgment read thus, "17. Sub-section (1) of Section 154 CrPC contains four mandates to an officer in-eharge of a policestation. The first enjoins that every information relating to commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such informationshall be entered in the station house diary. It will be apt to note here a further directive contained in sub-section (1) of Section 157 CrPC which provides that immediately pn receipt of the information the officer in charge of the police station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate or depute his subordinate officer to investigate the facts and circumstances of the case. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Sub- section (3) says that in the event of an officer ih charge of a police station refusing to record the information as postulated under sub-section(l), a person aggrieved thereby may send the substance of such information in writing and by post to theSuperintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made 7 (2001)63cc 181 by a policeofficer subordinate to him, in the manner provided by CrPC, if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station in relation to that offence. 18. An information given under sub-section (1) of Section 154 CrPC is commonly known as First Information Report (FIR) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house daary and this is impliedin Section 154CrPC. Apart frbm a vague information by a phone call or a cryptie telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - FIR postulated by Section 154 CrPC. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. No such information/ statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC. Take a case where an FIR mentions cognizable offence under Section 307 or 326 IPC and the investigating agency tearns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 3021PCneed be registered which witt be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against 1-1 - the real offender - who can be arraigned in the report under Section 173(2) or 173(8)crPc, asthecase maybe. Itis of course permissible for the investigating officer to send up a 10 report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused." 19.While dealing with same question, theSupreme Court in thematter of Kari Choudhary v. Most. Sita Devi and others has held that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Para 11 of the said judgment reads thus, "11. Learned counsel adopted an alternative contention that once the proceeding initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even thatapart, the report submitted by the Court styling it is as FIR No.208 of 1998 need be considered as an information submitted to the Court regarding the new discovery made by the police during investigation that persons not named in FIR No.135 are the real culprits. To quash the said proceeding merely on the ground that final report had been laid in FIR No.135 is, to.say the least, too technical. The ultimate object ofevery investigation is to find out whether the offences alleged have been committed and, if so who have committed it." 20.While dealing with same question, the Supreme Court in the matter of Ramesh Baburao Devaskar and others v. State of Wlaharashtra has held that in case of cryptic message not disclosing the identity and other requirements to satisfy the requirement of Section 154 ofthe Cr.P.C., the .information regarding commission of offence may be recorded. When,