Madhya Pradesh High Court
State Of M.P. vs Pattu Alias Pratap Singh on 23 January, 2001
Equivalent citations: 2001CRILJ3217
Author: C.K. Prasad
Bench: C.K. Prasad
JUDGMENT
1. Pattu alias Pratap Singh, Roop Singh, Chuttu alias Jagat Singh, Kuddu alias Gajraj Singh, Karra alias Kallu, Narayah Singh, Vijay Singh, (hereinafter referred to as the accused) besides three other accused persons were put on trial for offence under Sections 147, 148, 302/149 (on two counts) and 436 of the Indian Penal Code. First Additional Sessions Judge, Katni, by judgment dated 30-11-1999 passed in Sessions Trial No. 230/98 acquitted three accused persons of all the charges, but found the aforementioned accused persons guilty for offence under Sections 148 and 302/149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one year and death respectively. Accused Pattu alias Pratap, accused Chuttu alias Jagat Singh, accused Kuddu alias Gajraj Singh and accused Narayan Singh have further been found guilty for offence under Section 436 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. As the learned Judge had awarded the sentence of death, he has transmitted the proceeding to this Court for confirmation, which has been registered as Criminal Reference No. 9/99. Accused persons being aggrieved by their conviction and sentence, have preferred appeal which has been registered as Criminal Appeal No. 3301/99. the reference and the appeal were heard together and they are being disposed of by this common judgment.
2. Prosecution started on the basis of a Dehati Nalishi (Ex. P/l) given by P.W. 1 Lutalram, father of the deceased Moolchand in village Imaliya, on 12-2-1998 at 13.15 hrs., according to which there was dispute between him, his son Moolchand and accused Vijay and Pratap on account of nonpayment of ploughing dues for the last three years. According to this report, deceased Moolchand has ploughed the field of accused Pratap Singh for which he was demanding wages of Rs. 2000/- which was not being paid by him. In order to prevent the deceased from realising the amount, all the accused persons started alleging that deceased Moolchand teased accused Pratap's wife Sheela Bai and as such they will not pay even a farthing to Moolchand. Instead, they were asking Moolchand to pay a sum of Rs. 25,000/- falling which he shall be killed. According to this report, all the accused persons on 11-2-98 demanded a sum of Rs. 25,000 from Moolchand and threatened him that in case he fails to pay the amount, he shall be killed. On the following day, according to this report, all the accused persons armed with lathis and kulhadi (axe) were standing in front of the house of deceased Moolchand and seeing the informant, accused Pratap asked him to call the deceased for talk, failing which he will be killed. Prosecution story further is that at this informant Lutairam called the deceased, who was inside the house and the moment he came out, accused Pratap assaulted him by axe which caused injury on his right palm. Thereafter, according to the report, all other accused persons started assaulting to Moolchand and in order to save his life, he ran inside his house and locked the door in which 20 days old son of Moolchand was also sleeping. Thereafter, according to the report, when deceased did not open the door, accused Pratap started cutting the door by axe and when he did not succeed in the same, they went to the roof of the house; made hold in the same and at that time other accused persons were standing at the door to prevent, the deceased from fleeing away from the house. It has been further alleged in the report that from the hole made in the roof, accused Pratap, Gajraj, Jagat Singh and Narayan Singh started throwing bricks on Moolchand and accused Karra threw a brick on Babbu (20 days old son of the deceased) who first cried and then stopped crying. In the report it has been further stated that the informant besides other witnesses collected there, requested the accused persons not to kill the decased Moolchand and they were prepared to pay a sum of Rs. 25,000/- but accused person did not agree and assaulted the informant and other witnesses. It has been further alleged that Moolchand was shouting from inside the house to save him failing which he shall be killed at which accused Pratap stated that Moolchand is still alive and the house be set on fire. Thereafter, all the accused persons poured diesel oil at the door and pushed straw in the room and set the house on fire. The informant and the other witnesses became helpless spectator as they were chased by the accused persons, whenever they tried to save the deceased. Aforesaid dehati nalishi was recorded by P.W. 19 Shahzad Singh, the Officer Incharge of the Rithi Police Station. He sent the Dehati Nalishi to the Police Staion through P.W. 13 Constable Basant Kumar and on receipt thereof; a formal first information report was registered at the Police Station on 12-2-1998 at 5 p.m. under Sections 147, 148, 149, 323, 324, 342, 426, 436 and 302 of the Indian Penal Code.
3. Shahzad Singh (PW 19) the Sub-Inspector of Police prepared the inquest report of the dead bodies of Moolchand and his son Babbu and sent the dead bodies to the Government hospital for post-mortem. Post-mortem was conducted by P.W. 2 Dr. Gopal Tarthani, who submitted his report (Ex. P/42) and found following injuries on the person of Moolchand :-
Bleeding from both nostrils, cherry red in colour, face, both shoulders, right side of chest congested both eyes show echymosis (redness). Rigidity in both upper and lower limbs present. Superficial burning of right foot antly, lower half of right leg, upper thigh, buttock, right back, right arm below neck, right upper total 1/2 pinna 15-20% burn.
In the opinion of the doctor, death has been caused by asphyxia (suffocation) due to inhalation of smoke containing carbon-dioxide and carbon monoxide leading to cardio respiratory arrest and death may be because of ante-mortem burn 15-20% which caused shock.
4. This doctor has further conducted autopsy of Babbu, son of Moolchand and submitted his report (Ex. P/43) and he found following injuries on his person :-
Superficial burn of lower abdomen, left elbow post; both thighs antly and both ankles. Total burn is about 20-25% very superficial and redness present. Rigidity is slightly present. No external sign of injury in the body.
In the opinion of the doctor, death has been caused by asphyxia due to inhalation of smoke containing carbon-dioxide and carbon monoxide as also because of neurozenic shock from superficial burn 20-25%.
5. During the course of investigation, P.W. 19 Shazad Singh seized the weapon used in the commission of crime on the memorandum of appellants in presence of the witnesses and prepared the seizure memo. The witness had also prepared the sketch map of the place of occurrence aan got one prepared (Ex. P/9) by the Patwari. P.W. 20 Kamal Kumar Burman, the Investigating Officer also sent the injured persons P.W. 1 Lutairam. P.W. 5 Dhaniyabai, P.W. 6 Raghunath, P.W. 8 Tejaniya, P.W. 9 Kusumbai and P.W. 18 Shankardeen for medical examination. He also sent accused Pratap, accused Chuttu and accused Karra for medical examination to the Govt. hospital Rithi. The doctor did not find any injury on the person of Lutairam and submitted his report Ex. P/47. The doctor also did not find any external injury on the person of Mst. Tejaniya, Raghunath, Shankardeen, Kusumbai and submitted his reports Ex. P/48, P/51, P/52 and P/53. However, the doctor found abrasion on the tip of the middle finger of Dhaniya Bai P.W. 5 and submitted its report Ex. P/49. In the opinion of the doctor, injury sustained by Dhaniya Bai was simple in nature. Aforesaid persons were examined by P.W. 7 Dr. Y. K. Mallaiya. This doctor has further examined accused Pratap Singh and found abrasion of the size of 1/4" x 1/4" in index finger. On the said date i.e. 14-2-1998 he also examined accused Kuddu and found abrasion of the size of 1" x 1/6" on the left hand. He also examined accused Chuttu and Karra but did not find any injury on their person. P.W. 19 Shazad Singh recorded the statement of the witnesses during the course of investigation and submitted charge-sheet. Accused persons were ultimately committed to the Court of Sessions to face trial. They denied to have committed any offence and their plea is that they have been falsely implicated in the case.
6. Prosecution in support of its case has altogether examined 22 witnesses. No defence witness has been examined. Inadvertently, evidence of both photographer Vipin Kumar Tiwari and Investigating Officer Shahzad Singh has been recorded by the trial Court as P.W. 19, P.W. 1 Lutairam, P.W. 5 Dhaniyabai, P.W. 6 Raghunath, P.W. 8 Tejaniya Bai, P.W. 9 Kusum Bai, P.W. 11 Premlal and P.W. 18 Shankardeen are eyewitnesses to the occurrence. P.W. 10 Mahendra Singh has been declared hostile by the prosecution. P.W. 2 Dr. Gopal Tarthani is the Block Medical Officer who has conducted autopsy of deceased Moolchand and his son Babbu. P.W. 13 Constable Basant Kumar Paroha had carried the Dehati Nalishi to the Police Station where a formal first information report was registered by P.W. 3 Asstt. Sub-Inspector of Police K. G. Goswami P.W. 7 Dr. Y. K. Mallaiya is an Asstt. Surgeon who has examined the witnesses and the accused persons. P.W. 14 Constable Ram Snehi had taken the dead bodies for post mortem. P.W. 15 Constable Suresh Kumar had taken the injured witnesses for medical examination. P.W. 19 Vipin Kumar Tiwari is the photographer who had taken the photographs of the place of occurrence and proved the photographs and the negatives. P.W. 19 Shazad Singh is a Sub-Inspector of Police who investigated the case and submitted the charge sheet. P.W. 20 Kamal Kumar Burman is the Patwari who has prepared the sketch map of the place of occurrence. P.W. 21 Dr. Subhash Patil is a Senior Scientific Officer who, on examination of the details of the place of occurrence submitted report Ex. P/6 and opined that death was homicidal.
7. P.W. 1 Lutairam is the father of deceased Moolchand and grandfather of deceased Babbu. P.W. 1 in his evidence has stated that deceased Moolchand had ploughed the field of the accused Pratap for which he was entitled to receive a sum of Rs. 2000/-. He has further stated in his evidence that accused Pratap, Roop Singh and Vijay Singh used to demand Rs. 2000/- from Moolchand and him on the allegation that Moolchand had illicit relationship with the wife of accused Pratap. He has stated in his deposition that at about 10 a.m. when he came to the house of deceased Moolch and he found his house surrounded by the ac-cused persons and decased Moolchand taking tea sitting on a chair. He also found Moolchand's mother Tejaniya Bai (P.W. 8) and Moolchand's wife Dhaniya Bai (P.W. 5) in the house. Accused persons abused this witness and exhorted deceased Moolchand to come out from the house. Thereafter accused Pratap assaulted Moolchand by axe and when he tried to catch hold of the axe, he received injuries on his right hand. Thereafter, deceased Moolchand was assaulted by lathi by other persons. Moolchand fled away from there and went into his house and bolted the door. In the house, 20 days old son of Moolchand, namely, Babbu was sleeping. According to this witness, all the ac-cused persons tried to breack-open the door by axe, but they did not succeed. According to this witness, some of the accused persons were cutting the door whereas some of the accused persons climbed on the roof of the house and started making hole in the roof by Gaiti. This witness has further stated that after the accused persons made hole in the roof, they started throwing bricks and stones on the deceased Moolchand and Babbu. Moolchand cried for help then accused persons shouted that he is still alive. Thereafter, accused Karra and Narayan pushed straw from the cut portion of the door and some of the accused persons pushed it from the roof. Accused persons also pushed Kanda inside the room, which were kept in the roof of the house. This witness has further stated that thereafter accused persons poured die-sel oil in the room and set the same on fire, as a result whereof. Moolchand and Babbu died in the room. This witness has further stated that when he wanted to save the deceased, he was chased by the accused persons.
8. P.W. 5 Dhaniya Bai is the wife of deceased Moolchand and mother of deceased child Babbu. She has stated in her evidence that dispute existed, between her husband and accused Pratap for non-payment of wages for ploughing his field. She has stated that when deceased used to demand wages, accused Pratap denied payment on the pretext that he had illicit relationship with his wife and he had caught hold of her hands. She has stated in her evidence that on the date of incident her husband was sitting on the chair in the courtyard of the house when accused persons came variously armed. At that time, her father-in-law P.W. 1 Lutairam also came and in the meanwhile, accused persons came inside and accused Pratap assaulted the deceased Moolchand by axe. This witness has stated that when accused persons assaulted Moolchand, he went inside the room in which her 20 days old child was sleeping and bolted the room. She has further stated that to prevent the decaesed from fleeing away, accused Pratap closed the door from outside. This witness has further stated that accused Pratap, Chuttu and Karra started cutting the door and some of the accused persons climbed on the roof and tried to make hole in the same. She has stated that some of the accused persons used to come down and were cutting the door whereas some of the accused persons who were earlier cutting the door, used to climb on the roof and making hole in the roof. She has stated in her evidence that when accused persons did not succeed in breaking open the door, they started throwing bricks and stones from the hole made in the roof. This witness has stated that on sustaining the brick injury. Babbu cried and Moolchand asked for help. At this, accused Pratap stated that Moolchand is still alive and thereafter accused persons pushed straw in the room, poured diesel oil and accused Chuttu set the same on fire. This witness has also stated that accused Pratap has set the house on fire from the roof and wheat, rice and cash amounting to Rs. 36,000/-were got burnt. She has further stated that on account of burn and smoke, her husband Moolchand and her son Babbu died in the room. She has further stated that whenever she tried to save her husband, she was chased by the accused persons.
9. P.W. 6 Raghunath, P.W. 8 Tejaniya Bai, P.W. 11 Premlal and P.W. 18 Shankardeen have also supported the prosecution case and they have stated that accused persons surrounded the house of the deceased. Deceased was first beaten whereupon, he went inside the room where his son Babbu was sleeping and bolted the door. Accused persons thereafter tried to break-open the door and when they did not succeed, they climbed on the roof, made hole in the same, pushed straw from the hole made in the roof as also from the space in the door and after pouring diesel oil; set the house on fire. As a result thereof, Moolchand and his son Babbu died in the room and grains and currency notes were also destroyed.
10. Sri S. C. Dutt appears on behalf of the accused persons whereas State is represented by Sri Dilip Naik, Addl. A. G. Mr. Dutt appearing on their behalf prays for discarding the evidence of eye witnesses P.W. 1 Lutairam, P.W. 6 Ragunath, P.W. 8Tejaniya, P.W.'9 Kusum Baiand P.W. 18 Shankardeen on the plea that although these witnesses have stated that they were assaulted by the accused persons but no such injury has been found by the doctor P.W. 7 who examined them. Mr. Naik, Addl. Advocate General, however, appearing on behalf of the State submits that absence of external injury on the persons of eye witnesses is not sufficient to discard their evidence. He further points out that these witnesses have not stated that on account of assault they have sustained external injuries. They have simply stated that when they tried to save the deceased, they were chased by the accused persons and assaulted. This itself shall not mean that they have sustained external injuries.
11. Having appreciated the rival submisions, we find substance in the submission of Sri Naik. These witnesses have clearly stated about the participation of the accused persons in the crime which finds support from the medical evidence and recovery of burnt articles from the place of occurrence. P.W. 2 Dr. Gopal Tarthani, who has conducted the post-mortem has found superficial burn on the person of the deceased Moolchand and has found black smoke and particles in the wind-pipe and echymosis in the lungs. The doctor has opined that death of Moolchand occurred on account of suffocation because of smoke in the wind-pipe resulting into respiratory and heart failure. This doctor has also found 20-25% burn injuries on the person of Babbu and he also found black smoke and particles in the wind-pipe and echymosis in the heart and in his opinion, this child also died because of suffocation on account of inhalation of smoke. Thus, the evidence of eye witnesses finds support from the medical evidence and hence we are not inclined to discard the evidence of these eye witnesses only on the ground of absence of injury on their person.
12. Yet another infirmity pointed out by Sri Dutt to discard the evidence of eye witnesses is that they were tutored by the Police personnel before they deposed in the Court. In this connection, our attention has been drawn to the evidence of P.W. 5 Dhaniya Bai in paragraph 25 of her cross-examination wherein she has stated that her statement recorded during the course of investigation under Section 161 of the Code of Criminal Procedure was read out to her. Our attention has further been drawn to the evidence of P.W. 8 Tejaniya Bai in paragraph 44 of her cross-examination wherein she has stated that the counsel had read out her statement recorded during the course of investigation. On the strength of the aforesaid statements, Mr. Dutt contends that the eye-witnesses are tutored and their evidence is fit to be discarded. In support of his submission, he has placed reliance on a Division Bench Judgment of this Court in the case of Ramvilas Ramdin v. State of M. P., 1984 MPLJ 492 : (1985 Cri LJ 1773) and our attention has been drawn to following pas-sage from paragraph 15 of the said Judg-ment (at page 1780 of Cri LJ) :
At the end of his deposition, he stated that his earlier statement had been read over to him and he was asked to give the same statement in Court. By earlier statement, he obviously meant his statement recorded by the investigating officer under Section 161 of the Code of Criminal Procedure. That also renders his testimony valueless, as I shall presently show.
13. Mr. Dilip Naik, Addl. Advocate General, however submits that the evidence of the two witnesses referred to above, cannot be construed to mean that they have deposed as desired by the Police personnel. It is relevant here to state that P.W. 5 Dhaniya Bai has although admitted the fact: of her statement recorded during the course of investigation being read out to her but she has not stated that she deposed as was desired by the counsel. In fact, P.W. 8 Tejaniya Bai has very categorically stated that although her statement was read out by the counsel but she had deposed according to her own knowledge, what value should be attached to the testimony of a witness depends upon various circumstances. In the case of Ramvilas Ramdin (supra), relied on by Sri Dutt, the fact of reading out the statement recorded during the course of investigation itself was not held sufficient to discard the evidence. Other factors were considered and on consideration of overall factors the testimony was found to be valueless. This is not the situation here. Hence, we are of the opinion that the evidence of the eye witnesses is not fit to be discarded on the ground urged by Sri Dutt and the authority relied on is clearly distinguishable. We are further of the opinion that even if we discard the evidence of these two witnesses, there are other eye witnesses and plenty of material which proves the case against the accused persons beyond all reasonable doubt.
14. It is relevant here to state that door of the room in which the deceased had concealed himself was seized in half burnt condition and according to evidence of the Investigating Officer, P.W. 19 Shahzad Singh in paragraph 56 of his cross-examination he has not found any hole in the door. With reference to the aforesaid evidence, Sri Dutt submits that according to the prosecution, straw and diesel oil were pushed into the room from the door and the Investigating Officer having not found any hole in the door, same clearly goes to show that the entire prosecution story is false. We do not have the slightest hesitation in rejecting this submission of Sri Dutt. It is relevant here to state that according to the prosecution, die-sel as also straw was pushed into the room through the door. Diesel is a liquid and straw is thin object and one has to assume that the door of the house would not be such which shall not admit entry of such articles even if hole is not found on it. It is common knowledge that when door is pushed, a little space is created and that is sufficient to push straw and diesel.
15. Mr. Dutt submits that the entire prosecution story is improbable and in this connection, he draws our attention to the prosecution case itself. He points out that according to the prosecution, accused persons attempted to break-open the door by axe and in case such a large number of accused persons in fact had attempted to break-open the door, nothing could have prevented them from breaking-open the door. Mr. Dilip Naik, however, submits that the axe which was in possession of the accused persons was small in size and thereafore it is not necessary that in case attempt is made to breack-open the door by such an axe; the door would be cut. In this connection, Sri Naik has drawn our attention to the seizure memo according to which the length of the axe including its handle was one foot ten inch and the size of the axe from the sharp-edged side was 2.8".
16. Having appreciated the rival submissions, we find substance in the submission of Sri Naik. In fact, we have found that some of the accused persons were attempting to break-open the door by axe and some were making hole in the roof. Their object was to kill Moolchand; which they succeeded by pushing straw from the roof and straw and diesel from the door. Having achieved their object, it was not necessary for the accused persons to pursue the act of breaking-open the door. The size of the axe is not so that it would have necessarily resulted in cutting the door.
17. Mr. Dutt submits that according to the prosecution, although the accused persons tried to break open the door, but infact it did not open, receives severe blow from the evidence of P.W. 1 Lutairam who according to Sri Dutt, has stated in paragraph 57 in his cross-examination that door got opened by axe and Gaiti. We have gone through the evidence of this witness in paragraph 57 of his cross-examination and his evidence in the paragraph referred to above, cannot be construed to mean that this witness has stated that door got opened by the accused persons. It is half-reading of the evidence. In fact this witness has categorically stated that the door did not get open before the incident. It seems that after the incident the door got opened by axe and Gaiti and the evidence of this witness does not indicate that he wanted to convey that door got opened by the accused person. We do not find any substance in this submission of Sri Dutt.
18. Mr. Dutt appeals for discaring the prosecution case on the ground of non-examination of independent witness, notwithstanding the case of the prosecution itself that large number of persons collected after the incident. He points out that witnesses examined are the relatives of the deceased. This according to Sri Dutt clearly goes to show that the prosecution wanted to conceal the real story from the Court. It may be mentioned here that the occurrence had taken place in the house of deceased Moolchand and as such, his wife, mother and father are the natural witnesses expected to be present at the place of occurrence. Further, P.W 10 Mahesh has been examined by the prosecution who is in no way related to the deceased. It has to be borne in mind that evidence of the witnesses cannot be discarded only on the ground of relationship. Evidence of such witnesses is to be appreciated with care and caution. Here the eye-witnesses who are related to the deceased have consistently stated about the participation of the accused persons in the crime, which finds support from the medical evidence and corroborated by the material seized from the place of occurrence. The evidence of these witnesses inspire confience and the same cannot be discarded on the ground that they are related to the deceased and non-examination of all the witnesses collected at the place of occurrence.
19. Mr. Dutt draws our attention to the evidence of P.W. 2 Dr. Gopal Tarthani and the post-mortem report of the deceased (Ex. P/42 and P/43) and contends that although according to the prosecution, diesel oil was poured and the house was set on fire but diesel-smell has not been found coming out from the bodies of the deceased persons either in the post-mortem report or in the evidence of the doctor. This according to Sri Dutt clearly falsifies the case of the prosecution. We do not find any difficulty in rejecting this submission of Sri Dutt. It is relevant here to state that according to the prosecution Moolchand and his son were inside the room in which diesel oil and straw were pushed and thereafter the room was set on fire. It is not the case of the prosecution that diesel oil was poured on the body of the deceased and thereafter they were set on fire. In the aforesaid circumstances, absence of diesel smell from the bodies of the deceased persons does not, in any way create doubt in the prosecution case.
20. Mr. Dutt points out that there is a vital contradiction as to the place where the deceased was first assaulted by the accused persons, which renders the prosecution case doubtful. In this connection, Sri Dutt has drawn our attention to the evidence of P. W. 1 Lutairam who has stated in his evidence that while Moolchand was sitting on the chair, he was assaulted by the accused persons but this statement of P. W. 1 Lutairam does not find support from any other evidence. Mr. Dutt is not right when he submits that assault on Moolchand has not been supported by any other person. Infact, P.W. 5 Dhaniyabai has stated in paragraph 5 of her evidence that while her husband was sitting on the chair, he was assaulted by the accused persons. It is relevant here to state that according to the prosecution, deceased Moolchand was first assaulted while he was sitting on the chair in the courtyard of the house and thereafter he ran inside the room and bolted the room. Other witnesses have reached the place of occurrence after the first incident and as such, they have not seen the first phase of the incident. Assault on the deceased by the accused persons in the chair of the courtyard of the house has been stated by P.W. 1 Lutairam, P.W. 5 Dhaniyabai and P.W. 8 Shankardeen and hence failure of the other witnesses to narrate about the first incident shall not in any way cast doubt on the prosecution story.
21. Mr. Dutt submits that the accused persons did not know about the presence of the deceased Moolchand and his son in the room and even if it is proved that the accused persons have set on fire the house, it can utmost be an offence Under Section 436 of the Indian Penal Code and the accused persons cannot be held guilty for offence Under Section 302 of the Indian Penal Code. We do not find any substance in this submission of Sri Dutt. P.W. 1 Lutairam, P.W. 5 Dhaniyabai and P.W. 18 Shankardeen have clearly stated in their evidence that after Moolchand was assaulted, he ran away and concealed him-self in the house. Witnesses have also stated that the accused persons bolted the door from outside. Witnesses have also stated about presence of Moolchand's son in the room. Even thereafter, accused persons pushed straw and diesel oil and set the house on fire. We are clearly of the opinion that the accused persons knew about the presence of the deceased persons inside the room and as such, the submission of Sri Dutt is devoid of any substance.
22. Mr. Dutt points out that infact the Police was informed about the incident telephonically and the said information must have led to registration of first information report, but the prosecution has concealed the same, which throws doubt in its case. He submits that the earliest information given to the Police has to be treated as the first information report. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Sunil Kumar v. State of Madhya Pradesh AIR 1997 SC 940 : (1997 Cri LJ 1183). Our attention has been drawn to the following passage from the said judgment (at page 1187 of Cri LJ) :-
20. While on this point we wish to mention however that the High Court erred in not treating the telephonic information that PW 3 gave to the police station as the FIR. It is not disputed that PW 3 did give an information to the police station wherein he stated that one person had been killed and another person had been dismembered and it was recorded accordingly in the diary book (Ex. P/17). The same entry discloses, notwithstanding the absence of the names of the assailants therein, a cognizable offence and indeed it is on the basis thereof that PW 6 initially started their investigation.
23. It is relevant here to state that Police personnel were informed about the incident but not the nature of the incident and it is only after the Police Officer has gone to the village, he knew about the incident and the same was recorded as Dehati Nalishi. The Dehati Nalishi was sent to the Police Station where a formal first information report (Ex. P/44) was registered. In a situation where the information given to the Police Station is in relation to some incident which is alleged to have taken place without its nature being known to the Police authorities, same is not required to be registered as the first information report. In that view of the matter, the telephonic information given to the Police Station cannot be said to be the first information report and hence the authority relied on is clearly distinguishable.
24. Mr. Dutt submits that it was Anari who has given telephonic message to the Police and although his name has been shown in the list of witnesses, but he has not been examined by the prosecution. Aforesaid infirmity according to Sri Dutt, creates doubt in the case of the prosecution. Reliance has been placed on a judgment of this Court in the case of The State of M.P. v. Jagdish, 1991 (3) Crimes 551 and our attention has been drawn to paragraph 11 of the said Judgment, which reads as follows :-
11. For the reasons given above we are of the opinion that evidence of Shyamlal is absolutely necessary for just and proper decision of the case. Exercising powers conferred under Sections 391 and 367, Criminal Procedure Code, 1973, we direct that the Court of Session, Narsinghpur shall with utmost despatch record the evidence of Shyamlal as a Court witness. The accused/appellants shall have the right to be present when that evidence is taken. We further direct that each of the accused/appellant shall be given an opportunity of explaining any circumstances that may appear in the evidence of Shyamlal and for that purpose, the Sessions Judge shall examine each of the accused with reference to that evidence. The defence shall have a right not only to cross examine witness of Shyamlal but also any of the prosecution witnesses already examined and finally to produce such further defence evidence as they may deem proper. We hope that the entire proceedings shall be completed by the Sessions Judge within one month from the date of receipt of this order.
25. Non-examination of Anari has been explained which would be evident from the order dated 13-1-1999 of the learned Judge. He was given-up the prosecution on the ground that he was gained over by the accused persons. In such a situation, his non-examination shall not affect the case of the prosecution in any way and in that view of the matter, the authority relied on by Sri Dutt is clearly distinguishable.
26. Mr. Dutt complains non-compliance of the provision of Section 157 of the Code of Criminal Procedure to contend that the first information report is ante-dated. He submits that prosecution is required to establish compliance of Section 157 of the Code of Criminal Procedure like any other fact. In support of his submission, he has placed reliance on two judgments of the Supreme Court in the case of Bir Singh v. The State of Uttar Pradesh AIR 1978 SC 59: (1978 Cri LJ 177) and in the case of Arjun Marik v. State of Bihar, 1994 (2) JT SC 627. In support of his contention, he has further placed reliance on a judgment of Allahabad High Court in the case of L/NK. Meharaj Singh v. State of U. P., 1995 Cri LJ 457: (1994 All LJ 1032). We do not have the slightest hesitation in accepting the broad submission of Sri Dutt that the compliance of Section 157 of the Code of Criminal Procedure is required to be proved by the prosecution. We are further of the opinion that mere non-compliance of Section 157 of the Code of Criminal Procedure shall not itself lead to throwing out the case of the prosecution. Compliance of this provision is an external check provided in the Code of Criminal Procedure to prevent ante-dating the first information report. Here in the present case, P.W. 3 K.G. Goswami, the Asstt. Sub-Inspector of Police, who has registered the first information report has clearly stated that he had sent the first information report to the Magistrate as required Under Section 157 of the Code of Criminal Procedure. We do not find any reason to disbelieve this statement of P.W. 3 Goswami and as such, we are of the opinion that the prosecution has proved compliance of Section 157 of the Code of Criminal Procedure.
27. Mr. Dutt submits that the investiga-tion in the case has not been fairly done. First information report has been ante- dated. Statement of the witnesses were not recorded by the investigating agency on the date shown and same statement finds incorporated in the statements of every witnesses, which creates doubt in the case of the prosecution. He submits that in a case when investigation has not been found to be fair, conviction of the accused persons would be unsafe. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Ramphal Pithwa Rahidass v. State of Maharashtra, 1994 Cri LJ 2320 : (1994 AIR SCW 1500). He has also placed reliance on the judgments of the Supreme Court in the case of Subhash v. State of U. P. AIR 1976 SC 1924 : (1976 Cri LJ 1521) and in the case of Sevi v. State of Tamil Nadu AIR 1981 SC 1230 : (1981 Cri LJ 736). The very assumption of Sri Dutt that the investigation was not conducted in a fair manner is unfounded on fact. There is nothing on record to suggest that the first information report has been ante-dated. If all the witnesses have made same allegation against the accused persons and the same finds incorporated in their statements recorded during the course of Police investigation. It cannot be said that investigation was not conducted fairly. On fact, we have found that the first information report has not been ante-dated and the investigating agency has complied with the provisions of Section 157 of the Code of Criminal Procedure. No question was put to the Investigating Officer as regard the actual date on which the [Statements of the witnesses were recorded and the dates shown in the statement. In such a situation, it cannot be said that the statements were not recorded on the dates shown. In view of aforesaid, we do not find any substance in the submission of Sri Dutt regarding the unfairness of the investigation and as such, the authorities relied on do not help the appellants.
28. Evidence of prosecution witnesses clearly show that accused Pratap, accused Chuttu, accused Narayan and accused Gajraj have set on fire the house of the deceased causing destruction to the property and as such they have been rightly convicted and sentenced for offence Under Section 436 of the Indian Penal Code. Prosecution witnesses have further stated that the accused persons were the members of unlawful assembly and in furtherance of their common object, they have committed the murder of Moolchand and his son. In that view of the matter, conviction of the accused persons Under Sections 147, 148 and 302/149 of the I.P.C. is fit to be maintained. Further, conviction of accused Pattu alias Pratap, accused Chuttu, accused Narayan and accused Gajraj for offence under Section 436 of the Indian Penal Code is based on material on record.
29. As a last straw, Sri Dutt prays for remand of the case so that the accused persons get opportunity to cross-examine the prosecution witnesses. He points out that the accused persons filed application for recall of the prosecution witnesses for cross-examination under Section 311 of the Code of Criminal Procedure but the said prayer was rejected by order dated 5-10-99 by the trial Court. He submits that this has prejudiced the accused persons and hence they may be given opportunity to cross-examine them. In support of his submission he has drawn our attention to a judgment of the Supreme Court in the case of Raghunandan v. State of U. P., 1974 SC 463 : (1974 Cri LJ 453) our pointed attention has been drawn to paragraph 20 of the said judgment (at page 458 of Cri LJ) :
20. We have anxiously considered the question whether this is a case in which we should consider the merits of the whole case ourselves on the evidence on record or sent it back for further consideration and decision in accordance with law, as laid down above, either by the High Court or by the Trial Court. We do not think that, in a serious case of murder, such as the one before us, persons who were if the prosecution case is true, acting as utterly irresponsible and callous bullies, should be judged on the evidence as it stands without the additional evidence mentioned above by us. We must emphasisye that, whatever may be the nature of the offence or the actions of the accused, as revealed by evidence, the accused are entitled to a fair trial which a well considered judgment, dealing satisfactorily with the material points in the case, evidences. For the reasons given above, we think that several material points have escaped consideration by the High Court.
On a perusal of the order of the learned Judge dated 5-10-1999 it is apparent that accused persons were given sufficient opportunity to cross-examine the witnesses. In case in the cross-examination the counsel did not put questions which ought to have been put, cannot give accused persons the right to recall the witnesses for cross-examination. Hence, I do not find any merit in this submission of Sri Dutt and the authority relied on is clearly distinguishable.
30. While assailing the sentence of death, Mr. Dutt submits that it is not rarest of the rare case and as such extreme penalty of death is not called for. Mr. Naik, Addl. Advocate General, however submits that house of the deceased was set on fire in which two persons have died and on account of this gruesome double murder, the learned Judge did not err in imposing the extreme penalty of death.
31. Having appreciated the rival submissions, we are of the opinion that case found proved against the accused persons cannot be said to be rarest of the rare case to warrant extreme penalty of death. According to the prosecution, accused persons being members of unlawful assembly, in furtherance of their common object; had intended to kill Moolchand and infact succeeded in that. And although the accused persons knew that Moolchand's son was in the room in which he had concealed himself, their initial object was to kill Moolchand only. It was unfortunate that Moolchand concealed himself in the house where his son was also sleeping. In such a situation, we do not consider it to be rarest of the rare case to warrant the extreme penalty of death.
32. In the result, we decline to confirm the death sentence and commute it to life imprisonment. Excepting the aforesaid modification in the sentence, the appeal stands dismissed.