Decided on October 14,1952

LILADHAR Appellant
STATE Respondents

Referred Judgements :-


Cited Judgements :-



- (1.)THE appellant Liladhar in this case has been convicted by the Additional Sessions Judge, Dholpur under sec. 307 of the Indian Penal Code and sentenced to seven years' rigorous imprisonment and a fine of Rs. 400,- and to undergo six months' further rigorous imprisonment in default of payment of fine.
(2.)THE prosecution case against the appellant was that he and one Gyasi Brahmin were first cousins and residents of the same village Basaidang in Dholpur District. It was alleged that the appellant had his association with two persons namely Hema and Pati of the same village. Gyasi's son Gorey suspected Hema and Pati to be dacoits and, therefore he had advised the appellant not to associate with them. At this they got enraged with him and it is said, that the appellant had murdered Gorey and an enquiry into that alleged offence against the appellant is going on in the court of Extra Magistrate, Dholpur. THE present case against the appellant is that he was not content with Gorey's murder, but was further bent upon taking away Gyasi's life as well. On the 28th September, 1950 Gyasi left his village Basaidang, since he wanted to go to another village called Purani Chaoni. Five other persons namely P. W. 2 Babulal, P. W. 3 Parsa, P. W. 4 Shivlal, P. W. 5 Lajja Ram and one Nihal Singh were also in his company. When they proceeded about five miles from the said village and arrived at a place called Rate-e-khar, the appellant suddenly made his appearance from a ravine and challenged Gyasi saying that he had got him after a long time and he would not leave him alive. Gyasi thereupon, fled for his life. THE appellant chased him and fired at him thrice with a 12 bore gun but he missed his target and therefore, although he had aimed at Gyasi's murder, his action resulted only in an attempt to commit that offence. Gyasi went running to Patewari village where his companions other than Nihal Singh also arrived and joined him. Regarding Nihal Singh it is said that he ran away back to Basaidang when he saw the appellant firing at Gyasi. From Patewari P. W. 2, Babu Lal and P. W. 5 Lajja Ram proceeded to Dholpur while Gyasi Shiv Lal and Parsa went to Kesar Bagh. From that place Gyasi informed the police at Dholpur by phone about this occurrence. THE Circle Inspector, Dholpur who heard the call communicated it to P. W. 6 Girraj Prasad, Sub-Inspector, who was Station House Officer of Basaidang Police Station. Girraj Prasad then went in a truck to Kesar Bagh, contacted Gyasi and started investigation. He challaned the appellant under sec. 307 of the Indian Penal Code in the Court of the Magistrate First Class, Dholpur who committed the appellant to stand his trial in the court of the Additional Sessions Judge, Dholpur. Six witnesses were examined by the prosecution in that court. THE appellant had denied the whole occurrence in the committing Magistrate's court. He pleaded ignorance and innocence in the trial court as well, but the learned Additional Sessions Judge believed the prosecution story to be true and convicted and sentenced the appellant as mentioned above.
It has been argued by the appellant's learned advocate that the whole prosecution story is a mere concoction, that the first information report Ex. P. 1 was inadmissible in evidence, that the real first information report made by Nihal Singh was suppressed by the prosecution, that the appellant was further prejudiced in his trial because the police had recorded a joint statement of two witnesses Lajja Ram and Shiv Lal, that the trial court had drawn a wrong inference from the trend of the questions put to the prosecution witnesses by the appellant's counsel, that the prosecution witnesses were not worthy of any credence because of glaring discrepancies appearing in their statements that the police had failed to record the statement of the witnesses soon after the occurrence and that it has got up a case against the appellant and he has been wrongly convicted. Lastly, it has been argued that even if the prosecution story be believed, it cannot be said that the appellant wanted to murder Gyasi. It is also probable that he might have fired only to scare or terrorise him.

The points for determination, therefore, are (1) whether the appellant had fired thrice at Gyasi with a Gun and (2) whether the appellant has been rightly convicted of the offence under sec. 307 I. P. C. and if not, what offence if any he is guilty of ?

It may be pointed out at the outset that it was alleged by Gyasi that at the time of occurrence, he had several articles worth about Rs. 50/- in his possession, that when he fled for his life, he left those articles behind and he had seen the appellant picking them up. None of the articles mentioned by Gyasi have been recovered from the appellant's possession. Similarly the police has not recovered from him any gun nor has it found any blank cartridges near about the site of occurrence. It has also not been pointed out by the Investigating officer, P. W. 6 Girraj Prasad, if he saw anything at the site to corroborate the incident of firing. The whole prosecution case depends on the oral testimony of six witnesses.

To Begin with the first information report Ex. P. 1, P. W. 6 Girraj Prasad has stated that it was prepared by him on the very date of occurrence. He says that on the said date at about 4 P. M. when he was sitting with the Circle Inspector at Dholpur, the latter told him that he had received a telephone information from Gyasi from Kesar Bagh that some dacoits had chased him and fired at him and, therefore, he should proceed and find our what was the matter. The witness further says that he then proceeded to Kesar Bagh where Gyasi related to him the whole occurrence. He took down his statement and got it signed by him, while he was proceeding with him in the truck to Basaidang. He has admitted that Nihal Singh who was with Gyasi at the time of occurrence had also made a report at Basaidang on the same day, but it has not been produced by the prosecution. Gyasi P. W. 1 on the other hand has stated that he had made the report Ex. P. 1 on the next day, that is, the day following that of occurrence in the morning. It is, therefore, very doubtful in the first instance, if Ex. P. 1 was prepared on the date of occurrence, immediately after P. W. 6 Girraj Prasad contacted P. W. 1 Gyasi. Ex. P1 begins as follows: - "today Gyasi son of Balbhadra Brahmin resident of Basaidang made his appearance and stated that. . . " These very introductory words make it extremely doubtful if that was the first statement of Gyasi which P. W. 6 had recorded at Kesar Bagh. On the other hand it lends support to Gyasi's statement that he had made this report on the next day. This is the usual form in which reports are written at the Thana. In recording a statement at a place other than the Thana, it was not necessary to begin the statement by saying that Gyasi came and reported as follows. Moreover, if the statement was taken down at Kesar Bagh, when the Sub-Inspector had gone there and contacted Gyasi, it was wrong to say that Gyasi went to him and narrated the occurrence, Secondly even if P. W. 6 be believed that he had recorded this statement at Kesar Bagh, this statement could not be treated as the first information report because it was taken down after P. W. 6 had started the investigation of the case The first information report which the police had received regarding this occurrence, was either that which was communicated to the Circle Inspector on the phone or that which was made by Nihal Singh at the Police Station, Basaidang. It appears that the Circle Inspector did not reduce into writing the information which was given to him on the phone. It may be pointed out that he has not even been examined as prosecution witness. If the Circle Inspector had cared to record the information and signed it, it could be produced as the first information report or if the prosecution had cared to produce Nihal Singh's report, it could also be treated as such, or if P. W. 6 Girraj Prasad had reduced into writing the information which the Circle Inspector had given to him and got it signed by him, it could also be treated as the information report under sec. 154 Criminal Procedure Code, but when P. W. 6 had already started for investigating the case and when during the course of investigation, he took down Gyasi's statement, it was recorded under sec. 162 and not under sec. 154 of the Code of Criminal Procedure, and therefore, it was inadmissible in evidence. In the case of Shwe Pru vs. The King (1) (A. I. R. Rangoon, 1941, p. 209.), it was observed that: - "a telephone message given to police about the commission of a cognizable offence can be recorded by the station writer as a first information report, and the station writer may sign it himself as the person giving the information, for a first information report may be merely hearsay and need not necessarily be given by a person who has first-hand knowledge of the facts. And subsequent statements made to police must be regarded as statements mode to police in the course of the investigation of this cognizable offence and therefore as inadmissible under sec. 162. " In another case Moti Singh and others vs. Emperor (1) (A. I. R. All. , 1948, p. 289.), it was held by their Lordships of the Allahabad High Court that: - "if the circumstances indicate that after receiving some information, however incomplete, the police officer had commenced his investigation, any subsequent information given to him about the offence by any other person cannot be regarded as the first information report in the case and would not be admissible under sec. 162 Criminal Procedure Code. " We respectfully, agree with the above observations of their Lordships and thus even if P. W. 6 be believed, the document would he inadmissible in evidence. But as pointed out above, it appears that this statement was made by Gyasi on the next day after the occurrence in the morning. P. W. 6 has himself admitted that he had made a lot of investigations on the previous day and therefore, there remains no doubt about its inadmissibility and the trial court should not have acted upon it. The first information report is a very important piece of evidence and its absence in the case deprives the accused of his right of cross-examination of the first informant on its basis. Every prosecution case need not necessarily be thrown out simply because of the non-production of the first information report, because there may be a case in which other prosecution evidence may be so strong that conviction may be possible inspite of the absence of the first information report. It all depends on the particular circumstances of the case, but generally the absence of first information report does cast a cloud of suspicion and tends to weaken the prosecution case.

We have examined the statement of the prosecution witnesses closely and we think that the evidence is not reliable because of discrepancies, appearing in them. P. W. 1 Gyasi has admitted that when he gave the first information report to the Circle Inspector at Dholpur, he had only said that some badmashes had chased him. He has not given any satisfactory explanation as to why he did not give names of the badmashes and specially that of the appellant who was so intimately known to him. This creats a strong doubt whether it was the appellant who had met him and fired at him or there was some other incident or another story has been woven out to rope in the appellant.

In the committing Magistrate's court, Gyasi had stated that when they reached Rate-e-Khar, he first saw Hema and Mansingh gujars coming out of a nala and after them Liladhar appellant came out with a gun in his hand. In the trial court he had stated that he had only seen Hema and that he did not see Man Singh at that place. When his attention was drawn to his previous statement in the committing Magistrate's court on this point, he said that he did not remember if he had given any such statement. He has stated that he had seen two more persons but he could not see them clearly. P. W. 2, P. W. 3, P. W. 4 and P. W. 5 have all stated that they did not see any body except the appellant. It is not easy to believe that P. W. 1 who had fled for his life the moment he was challenged by the appellant should have seen four persons while the other four witnesses could not see even one more than the appellant, although they were present at the site for a much longer time.

Again P. W. 1 Gyasi, says that his companions Babu Lal, Parsa, Shiv Lal and Lajja Ram had left for Dholpur when the police party had arrived at Kesar Bagh but P. W. 4 Shiv Lal says that he and Parsa had not only gone to Kesar Bagh with Gyasi but had stayed there till the police party arrived there and picked up P. W. 1 in the truck. According to him he had related the whole occurrence to the police at Kesar Bagh when Darogaji questioned him about it. If the witness had stated falsely, he is not trust worthy and if the police failed to record the first statement given by P. W. 4 and took down another statement a few days after, it does cast some cloud of suspicion on the prosecution case. Next P. W. 1 says that he had sword with him and when the appellant challenged him, he wanted to face him but Parsa P. W. 3 told him that his sword would be no avail in the face of a gun, and thereupon he ran away from that place. Parsa P. W. 3 on the other hand says that the moment Gyasi saw Lila Dhar, he took to his heals saying that the would not leave him alive. He further says that he did not see any sword with P. W. 1. This makes it doubtful if P. W. 1 and P. W. 3 had any consultations before, about the use of sword. Most of the discrepancies pointed out above are not minor, but relate to salient facts and when the statements of prosecution witnesses are at variance on such points and when the case depends wholly on oral testimony, the contradictions cannot be lightly ignored.

P. W. 2, 3, 4, and 5 have no doubt supported P. W. 1 in saying that the appellant had fired at him but they are unreliable, firstly because of the discrepancies pointed out above and secondly because P. W. 2, 3, 4 and 5 are all gujars and resident of the same village Basaidang and they do not appear to be disinterested witnesses. The only witness who can be said to be independent is P. W. 2 Babu Lal Patwari, but even he, has not stuck to the truth. He says that his statement was recorded by the police four or five days after the occurrence, but when a copy of his statement was demanded by the counsel for the accused it was found that it was recorded after about six months on the 17th March, 1951. The witness tried to explain the delay and contradiction by saying that he had refused to give his statement early without the permission of his officer Tehsildar. Dholpur and therefore, it was recorded after a long time. But if it was so, he should not have stated early that he was examined only four or five days after the occurrence. On further examination, he has admitted that as a patwari it was his duty to make a report about the crimes occurring in his presence but he says that he did not make any report because nothing had happened to his person.

The appellant's learned advocate has also argued that the appellant has been prejudiced in his trial because the police had recorded the statements of Parsa and Lajja witnesses jointly and therefore, they could not be cross-examined properly on the basis of their previous statements. This argument seems to be correct. It appears that the police had recorded an extract of the statement of the said two witnesses in a way that it could not be clear as to what each witness had actually deposed. In the case of Emperor vs. Salik and others (1) (A. I. R. 1937 Oudh, p. 201.), it was observed by their Lordships of the Chief Court of Oudh that - "where the police officer has recorded in his police diary the statements made by two or three prosecution witnesses at one place, such joint statements cannot be legally used as statements of any particular prosecution witness for the purpose of contradicting that witness, for the simple reason that it is not known how much of any particular joint statement is the individual statement of any particular prosecution witness and how much is not his individual statement. " It is further significant that Nihal Singh who was reported to be in Gyasi's company and who is stated to have made a report at the Police station, Basaidang, was not examined by the prosecution and his report was also not produced.

It appears that the learned Additional Sessions Judge was influenced in his opinion on account of certain questions which were put to the witnesses by the appellant's counsel. In his judgment he says as follows: - "the manner in which Shiv Lal P. W. 4 is questioned and he replies to the effect that it was not a fact that at the place of firing he had seen Man Singh and Hema also, clearly shows that the presence of P. W. 4 at the place and time of occurrence is admitted and so is the fact of occurrence including fact of firing is admitted on behalf of the accused and when that is so there appears to be no reason why P. W. 4 (Shiv Lal) should be disbelieved. " He has further added that - "the manner in which Lajja Ram P. W. 5 is questioned and he replies to the effect that when they came near to the Rate-e-Khar, they saw Hema and Man Singh coming out from the Nala, clearly shows that P. W. 5 was also with P. W. I and others at the time and place of occurrence otherwise no such question could be put to him. Thus his presence is also established and so there appears to be no reason why his (P. W. 5's) statement should not be relied upon. "

In our opinion this is a very queer and undesirable way of reasoning. If the counsel for the accused put certain questions to a witness in cross-examination to enquire whether certain event had happened in his presence, it cannot be said that the accused had committed himself to the assertion that such and such event had actually taken place. In cross-examination questions are not always put in order to establish cross-examiners case, but very often they are also put to put off the witness or to bring out discrepancies in the evidence or to test his verasity or to impeach his credit. Therefore, simply because of certain questions being put in cross-examination, it is not proper to draw an inference against the accused that he admits the facts referred to therein. It is \ apparent that the accused had cross-examined P. W. 4 and P. W. 5 to bring out inconsistencies in the statements and the learned Additional Sessions J Judge should not have drawn an inference from the mere questions that the accused was admitting presence of these witnesses at the alleged place at the time of occurrence.

(3.)AS regards the evidence about the motive, we do not think it proper to express anything regarding the case which is already being enquired into the committing Magistrate's court about the alleged murder of Gorey by the appellant. It is only Gyasi's allegation that the appellant wanted to do away with him. The motive supplied by him may as well form the foundation for a false allegation. Gyasi has admitted in his cross-examination that the murder did not take place in his presence and that on that day he had gone to Bharatpur in a case of dacoity which was going on against him. This shows that Gyasi himself is not a witness of unimpeachable credit. He had not only suspicion but a serious grouse against the appellant and the trial court ought to have used his version with great caution.
In our opinion, the statements of the prosecution witnesses referred to above are not free from doubt and under the circumstances, the appellant's conviction cannot be maintained.

We, therefore, accept the appeal, set aside the conviction and sentence of the appellant Lila Dhar and order that he be released forthwith unless required in any other case. Fine if realised from him will be refunded. .

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