1 CRIMINAL APPEAL No.72 OF 2003 - - - - Against the judgment of conviction dated 10.12.2002 and order of sentence dated 12.12.2002 passed by 8th Additional Sessions Judge, Gaya, in Sessions Trial No.8 of 2000/139 of 2000 arising out of Roshanganj P.S.Case No. 15 of 1999, G.R. No. 176 of 1999. - - - - LALDEO BHUIAN … … Appellant Versus STATE OF BIHAR … … Respondent For the appellant: Shri Anil Kumar Singh, Amicus Curiae For the State : Shri Ashwini Kumar Sinha, Addl. P.P. P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE RAKESH KUMAR - - - - Dharnidhar Jha & Rakeksh Kumar, JJ.- The solitary appellant Laldeo Bhuian stands convicted under Section 302 of the Indian Penal Code for committing the murder of Sahendra Bhuian alias Satyendra Bhuian on 28.3.1999 at village Parsachua within Roshanaganj Police Station in the District of Gaya. The appellant was tried by the learned Additional Sessions Judge, 8th Court, Gaya in Sessions Trial No.8 of 2000/139 of 2000 arising out of Roshanganj Police Station Case No.15 of 1999( G.R. No.176 of 1999) and by the judgment of conviction dated 10.12.2002 the above order of conviction was recorded by the learned Judge. The sentence of rigorous imprisonment for life was inflicted by the learned trial Judge on 12.12.2002 after hearing the appellant on sentence. The appellant questions the propriety of the findings through the present appeal. 2 2. The prosecution case is contained in Ext.1, the F.I.R. of the case, lodged by Mahendra Bhuian( P.W. 9), the full brother of the deceased. It was stated by the informant in Ext.1 that he had just left his house with Rahar( Arhar) for Roshan Bazar so as to bartering it to meet his daily expenses and he had traveled a few steps away from his house when he heard a hulla that his brother had been hacked to death by a tangi by being assaulted on the back of his neck by the appellant. He also heard that the appellant was running away from the scene of occurrence. 3. P.W. 9, the informant, also rushed to the scene of occurrence which was just by the side of the house of one Laldeo Bhuian( P.W. 2) and found that his villagers Amresh Bhuian( p.w.7) and Krisna Bhuian( not examined) were running after the appellant and had caught him also. The informant went near his brother and found that he had been attacked on his neck as also on his right temple by a tangi. The informant stated that while his brother was being carried to the hospital by P.W. 8 Chandradeo Bhuian, Amresh Bhuian, P.W.7 and Rameshwar Bhuian( not examined), he started to the Police Station for lodging a report, but his brother died on way to the hospital. 4. The informant alleged that the reason for commission of the murder of his brother was that the appellant was accusing the deceased of carrying on an 3 illicit relationship with the wife of the appellant which allegation was unfounded. 5. The informant alleged that the occurrence took place just under the Goldmohar tree which was situated by the side of the house of Laldeo Bhuian( P.W. 2) where some boys were engaged in some play and, further, that the appellant Laldeo Bhuian was brought to the police Station with the help of Chaukidar and Dafadar after being arrested by the villagers and was handed over to it. 6. The accused was taken into custody by the Officer-in-charge of the Police Station who recorded the F.I.R., Ext.1, and it appears that the Officer-in- charge S.I. Subedar Prasad himself took up the investigation. 7. P.W. 5, S.I.Subedar Perasad after recording the statement of the informant and drawing up the F.I.R., came to the place of occurrence on 29.3.1999, i.e., on the next day of the occurrence, and, firstly, inspected the place of occurrence which was situated 7-8 feet north of the house of P.W. 2 Laldeo Bhuian. It was a place under the Goldmohar tree. A pathway was running east to west and up to the forest in the west and the same was going to the village in the east. The Investigating Officer found many houses standing around the place of occurrence as per his evidence and the boys were playing at the same place under the tree. 4 P.W.5 found blood stained earth and seized it in presence of P.W. 2 Laldeo Bhuian and Munarik Bhuian( not examined) by preparing a seizure memo and obtaining the signatures of the two witnesses. The seizure memo has been marked Ext.2. The Investigating Officer has stated that he also recovered a blood stained tangi from the house of the father-in-law of the appellant in presence of the above named two witnesses and prepared a seizure memo in that behalf also. The seizure memo prepared in respect of the seizure of the tangi has been marked Ext. 2/1. P.W.5 sent the dead body for post-mortem examination to Magadh Medical College Hospital, Gaya, and after winding up the investigation, sent up the appellant for trial who had already been remanded in the case. 8. The defence of the appellant was that he was innocent and had falsely been implicated and that he was not arrested while fleeing away from the place of occurrence, rather, he was illegally caught while he was standing on or around the place of occurrence. He denied his complicity in the offence. 9. The prosecution examined ten witnesses in support of the charge framed against the appellant under section 302 of the Penal Code. P.W.1 Sudama Bhuian, P.W. 3 Ram Swaroop Bhuian and P.W.4 Raj Kumar Bhuian, though not being named in the F.I.R. along with P.W. 6 Ram Pravesh Bhuian, have claimed themselves to 5 be the eye witnesses and appear giving evidence that way. P.W. 2 Laldeo Bhjuian, P.W.7 Amresh Bhuian and P.W. 8 Chandradeo Bhuian are named in the F.I.R. and except P.W. 8, P.Ws. 2 and 7 have given eye witness account of the occurrence by claiming their presence at the scene of the occurrence. P.W. 9, Mahendra Bhuian, has not claimed being an eye witness. P.W.10 Dr. Arvind Prasad, was the Head of the Department of the Forensic Science Medicine in Magadh Medical College Hospital, Gaya and has given evidence on the retirement of Dr. M.K.Sinha who had held post-mortem examination and prepared report Ext.3 and who was not being heard of since after his retirement. On consideration of the evidence of the eye witnesses, the learned trial Judge came to the conclusion that the accused had committed an offence and after recording a finding of guilt against him inflicted the sentence upon him as pointed out at the very out set of the present judgment. 10. As may appear from the records of the present appeal, the appellant had filed the appeal from jail and, as such, the Court appointed Shri Anil Kumar Singh Amicus Curiae, as appears from the order dated 25.2.2003. We have heard Shri Singh, finally in the present appeal who has been very critical of the findings recorded by the learned trial Judge and has set up some acerbic attack upon the findings recorded by the learned trial Judge. It was contended that the 6 place of occurrence has not been established which is further indicated by the fact that the blood stained earth or the so-called blood stained tangi, on the recovery of which there is varying evidence, were not sent for chemical analysis by the Investigating Officer. It was contended that as regards the witnesses being present at the place of occurrence from before or at the time of occurrence, the evidence of the witnesses is again contrary to each other. There was no question put on the finding of the blood stained earth or tangi to the accused in his statement under Section 313 of the Cr. P.C. and again there was contradiction, as such, in the evidence of the witnesses in the F.I.R. It was also contended that Ext.1, the F.I.R., was hit by the mischief of Section 162 of the Cr. P.C. on the very evidence of P.W.5 and on this score alone, the appellant deserves to be acquitted. 11. Learned Additional Public Prosecutor has given a very brief reply to the above contentions of the learned Amicus Curiae which has been supported by a huge number of decisions, which we could be discussing in the relevant part of the judgment, by submitting that after all why the accused would be implicated in this case has not been stated nor it has been suggested to any of the witnesses and the witnesses consistently were telling the court that it 7 was this appellant who had given the two blows upon the deceased so as to killing him. 12. We first want to examine the contention on the admissibility of the F.I.R. There could be a long line of decisions of the Supreme Court which is telling us that if the F.I.R. is given or drawn up after the investigation had started then it could be merely a statement which could be used only for the purpose of contradicting or corroborating the maker of the document in the light of the provision of Section 162 of the Cr. P.C.. Shri Singh was attempting before us to bring the F.I.R., Ext.1, within the mischief of the provision of Section 162 Cr. P.C. and thereby getting it declared as an inadmissible document. The premise upon which Shri Singh was framing his argument was that P.W.5 has admitted in his evidence that before receiving or recording Ext.1, the F.I.R., he had received some information-the source of which has not been disclosed to him- that some Bhuian people of place-of-occurrence village had quarreled between themselves and that a man had also been injured by being assaulted with tangi. It was contended by Shri Singh by citing before us a Division Bench decision of this Court reported in 2005(1) P.L.J.R. 446 Deo Pujan Thakur Vs. State of Bihar that the F.I.R. had already been received by P.W.5 and, as such, the subsequent report in the form of Ext.1 was inadmissible on account 8 of it being a mere statement under Section 161 Cr. P.C. We have considered the decision of this Court in Deo Pujan thakur( Supra) and we find that the same premise upon which the Court went to hold the F.I.R. or the fardbyan hit by the mischief of Section 162 Cr. P.C. was that in Deo Pujan Thakur(supra) the Investigating Officer had written the case diary in quite some good length, indicating that the investigation had proceeded and had been completed to some length on certain important aspects of the case. We respectfully agree with the view expressed by the Division Bench in the above noted case, but we respectfully disagree with learned Amicus Curiae to apply that law to the facts of the present case. The reason which appears to us is that the ingredients of the F.I.R. or the definition of the document which may be culled out from the reading of Section 154 Cr. P.C. does not qualify the station diary entry recorded by P.W.5 to the class of the document which is recognized as F.I.R. by the provision of Section 154 Cr.P.C. A written report on an oral statement given to the Officer-in-charge of the Police Station by a person(informant) disclosing the commission of some cognizable offence by any one known or unknown could be qualified to be a document which could be fully covered by the provision of Section 154 Cr. P.C. Mere rumours which could be lacking in some important details may not qualify any statement even if 9 it were a written statement to the class of the document as defined by Section 154 Cr. P.C. We have given our anxious consideration to the evidence of P.W. 5 as also to the criticism set up by the learned Amicus Curiae on the admissibility of Ext.1. We find there is some details in the evidence of P.W.5 that there had been some quarrel and that some one had also received some injury by tangi which may give rise to an inference that a cognizable offence had been committed. Still, the most important detail as to from whom the Officer-in-charge received the information and who had indulged into the acts complained of and that too against whom are clearly absent from the station diary entry which was recorded by P.W.5 on picking up the rumour from some unknown person. This, to us, appears not qualifying the omnibus rumour picked up by P.W.5 to be a statement which could qualify as F.I.R. within the four walls of the provision of Section 154 Cr. P.C. Furthermore, in the case of Deo Pujan Thaiur( supra) the investigation had already started and had proceeded to some length as appears recorded by the Hon’ble Judge rendering the judgment. Here, in the present case, no investigation had started. Even after having received the omnibus nature of information or rumour the Officer-in-charge of the Police Station had not moved out of his Police station. One may argue that the accused had been arrested by the villagers, as 10 appears recorded in Ext.1 and as appears coming to us from the evidence of almost all the witnesses examined by the learned trial Judge. But, the arrest of an accused could be the part of investigation only when it is during the course of investigation and the arrest is affected by the Investigating Officer or on his direction by some other police personnel. Here, in the present case, the arrest of the accused could be qualified as one under Section 43 of the Cr.P.C. which empowers even an ordinary citizen of India or any other person to arrest an accused who has either committed cognizable- non-bailable- offence in his presence or who is known to have committed such an offence. We do not want to deliberate much on that issue as that issue shall be merely academic in the present context. We simply want to record that on account of no investigation having taken place in the present case the record, Ext.1, to us, appears admissible for reasons we have just seen. 13. The motive has been established and this is the reason that learned Amicus Curiae was not attacking that part of the prosecution case or the evidence. The witnesses say that the attack was made either in their presence or just when they were around and further that they found the appellant running away from the scene of occurrence. The informant is not the eye witness. He appears honestly stating the court as to how he came to 11 know about the murderous assault on his brother. Other witnesses have stated that they had either seen the appellant giving two blows-one on the back of his neck and the other on his right temple- and further that they, thereafter, saw the appellant running away with tangi which he threw either at the scene of the occurrence or just around it. The contention was that the tangi was recovered from the house of the father- in-law of the appellant. If we go through the evidence of the Investigating Officer we could find that the house of the father-in-law of this appellant was not distantly located, all houses of the Bhuian-folk were located around the Goldmohar tree in the vicinity of a distance of 6-7 feet from the tree itself. It is further indicated by the evidence of P.W. 5 when he was describing the place of occurrence that a pathway was also running from the village south east of the place of occurrence to the forest situated west of it. Thus, the place appears to us a very compact place. The witnesses say that the appellant threw away the blood stain tangi. No one says that it was thrown into the house of the appellant’s father-in-law. None of the witnesses except P.W. 10 stated that he picked up the tangi. If the house of the father-in-law of the appellant was just round the corner and at a distance of 6-7 feet at that busy place where some children were playing which was watched by some elders, could not it 12 be a possibility that it landed somewhere in the house of the father-in-law of the appellant and, accordingly, it was seized. 14. Even if the tangi had not been seized, we are of the opinion that its non-seizure would not have made much of difference. It is a case of direct evidence. The witnesses appear to us reliable and, as such, their reason for presence at the place of occurrence acceptable and after having considered their evidence we do not have any doubt that the wounds were inflicted by the appellant. The same reason we assign for the non-examination of the Doctor who held post-mortem examination also because his evidence would not have been of much importance inasmuch as the evidence of the witnesses was clearly establishing the fact that it was the appellant who gave two repeated blows to the deceased which ultimately caused his death. After all, what is the importance of a medical opinion; it simply corroborates the manner of occurrence. The death could be proved by direct evidence. In the case of direct evidence the medical opinion does not appear of much importance except where the defence could be showing to the court that the very manner of occurrence was not possible as the injuries which were found by the Doctor were diametrically dissimilar to the ultimate result which could have occurred on account of the alleged assault. If the allegation is, say for the sake 13 of argument, that the deceased was fired at and killed and if the medical evidence found no firearm injury and rather reported an injury which was caused by a hard and blunt substance, then the benefit of that contradictory opinion could accrue to the accused. Here, in the present case, all the witnesses say that it was the appellant who had given two tangi blows, first, on the back of his neck and the second, on his right temple. The document which has been proved by P.W. 10, Ext. 3, fully supports the manner of occurrence also because two incised wounds are recorded in the document which were 4½” X1”X ½” bone deep and 2” X ½” X cranial cavity deep. The opinion of the Doctor was that the two injuries were caused by heavy sharp cutting weapon. This document could be admissible inasmuch as in his evidence P.W. 10 has given sufficient evidence to admit the document under the provision of Section 32(2) of the Evidence Act which permits such admission of a document if the witness is dead or cannot be found or whose attendance could not be procured without an amount of delay or expenses which under the circumstance the case appeared to the court unreasonable and if the entry or memorandum was made by him in discharge of his professional duty. The doctor was discharging his professional duty and the entry or memorandum of his findings was being recorded in the officially prescribed book of post-mortem 14 examination report under the Bihar Police Manual. P.W. 10 has stated that Dr. M.K.Sinha, after retirement was not heard of. He stated that he does not know whether he is alive or not. There is no material before us to show that he may be alive or living at a particular place. In That view, the document appears to us admissible. 15. It was contended in the above context that the tangi may not be a heavy sharp cutting weapon. We reject the argument inasmuch as a tangi is very much a sharp cutting weapon and if at all the defence was making such a submission it ought to have made it by virtue of cross examining P.W. 10 because he could have been competent to render the opinion in that aspect also. 16. The seizure of blood stained earth and tangi has been testified by P.W.2 Laldeo Bhuian and the Investigating Officer, P.W.5. The non-examination of other witness Munarik Bhuian, to us, appears of no consequence because one of the witnesses has testified that the blood stained earth was seized and that the blood stained tangi was also seized in his presence as is claimed by P.W.5, the Investigating Officer of the case. There is no doubt about the competence of P.W. 2 Laldeo Bhuian. In the case of Mathura Yadav alias Mathura Mahto and Ors. Vs. State of Bihar reported in 2002 S.C.C.(Cri.)1352 and relied by the learned Amicus 15 Curiae there were many circumstances for rejecting the evidence on seizure of blood stained mud and weapon because there could have been many other persons of independent character to be associated with the seizure and that there was a dispute also that the weapon was recovered from the possession of the accused. Here, in the present case, there is no challenge to the competence of P.W. 2 being an independent person. We also find after having gone through the whole plethora of evidence that it was not even suggested to any of the witnesses as to how he came to falsely depose against the appellant. The houses which were situated around the place of occurrence were either of the witnesses or of the informant or deceased’s father-in- law. There was no ill-will between the residents of that minuscule hamlet. There is no record brought before us even through oral evidence. In that view, the seizure of the blood stained earth and tangi appears to us an acceptable part of evidence. 17. As regards its non-examination by chemical analyst, we are of the opinion after having accepted the evidence of the witnesses directly on the fact of seizure, it is fault on the part of the Investigating Officer and could not render the judgment illegal. The Investigating Officer might have committed an error on account of any personal failing or any reason but for 16 that we could not throw out the prosecution case which otherwise appears to us fully established. 18. Learned Amicus Curiae was placing before us other decision on the above point which is reported in 2003 S.C.C.(Cri.) 481 State of U.P. Vs. Arun Kumar Gupta. For the same reason we respectfully want to hold that the decision was also not to be applied to the special facts of the present case. 19. Learned Amicus Curiae was submitting that it is doubtful that the accused had been arrested by the villagers and was produced before the police by them. For the above purpose, learned counsel was referring to the evidence of P.W. 5 in paragraph 1 at page 23 of the Paper Book in which he has stated that the appellant was produced before him after being arrested by Dafadar Jagdishs Paswan and Chaukidar Barho Paswan. It was contended that the claim of the informant and other witnesses that the appellant was captured by the villagers on chase appears completely a false statement. We do not see any reason to accept the contention of learned counsel inasmuch as the very basic prosecution document Ext.1 records the production of the accused before the Officer-in-charge of the Police Station. We have already dealt with in sufficient details the evidence that the appellant was arrested on chase by the villagers. The witnesses have stated that he was captured on chase by Laldeo Bhuian, 17 Krishsna Bhuian and some of the villagers firstly and thereafter was produced before the Officer-in-charge of the Police Station. The informant has stated in his evidence that the captured accused was handed over to the Chaudkidar and was brought by them in custody to the police Station. We have already indicated that the arrest by the villagers, thats, the general public, was justified under Section 43 of the Cr.P.C. after being