Patai @ Krishna Kumar vs State Of U.P

302 read with Section 34 of the Indian Penal Code (for short

the "IPC").

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2. Shri Prithvi Pal Singh alias Chandra Prakash Singh, son of

the deceased had lodged a report at the Police Station

Maharajpur, District Kanpur contending, inter alia, that on

29.07.1977 while he alongwith his father, Vikramaditya

Singh and one Sri Jagannath Dubey were coming back to

their village by Kanpur Allahabad Passenger Train from the

Court of Munsif Hawali, Kanpur where a litigation was

pending between his father Vikramaditya Singh and Sri

Ganesh Singh and others, they alighted at the Rooma Halt

Station for the purpose of going to their house. Further

allegation was that the accused Sri Shrawan Kumar, Sri

Patai @ Krishna Kumar and Brij Kishore, who were armed

with country made pistols, accosted the deceased.

3. It was alleged that the accused Ganesh Singh, who was

travelling in the same train but in a different compartment,

after alighting from the train exhorted that it is the

opportune time to eliminate Sri Vikramaditya Singh, the

deceased, whereupon the present appellants Brij Kishore

and Patai @ Krishna Kumar dragged his father from the

2 platform of the station to a place under a Peepal tree

whereupon Sri Shrawan Kumar and Ganesh Singh put their

country made pistols at the deceased and fired shots

consequent to which Vikramaditya Singh died

instantaneously. On hue and cry having been made by

Prithvi Pal Singh @ Chandra Prakash Singh - the informant

and Sri Jagannath Dubey, Sri Iqbal, Sri Mahendra Singh,

Sri Ram Prasad Sharma and some other persons of village

Gangaganj came to the place of occurrence and saw the

appellants running away from that place. It is further

alleged that Prithvi Pal Singh had written the First

Information Report at the spot itself and had submitted the

same to the Police Station wherein an entry was made.

4. After registering a case, investigation was conducted during

the course of which all the accused persons were arrested.

On completion of the investigation, a chargesheet was filed

against all the accused persons under Section 302 read

with Section 34 IPC. As many as 8 prosecution witnesses

were examined which included, among others, Prithvi Pal

Singh, P.W. 1, Jagannath Dubey, P.W. 3, Sri Iqbal Singh,

3 P.W. 4. Sri Girja Shanker Yadav, the Sub-Inspector who

had started the investigation was examined as P.W. 6. Dr.

R.S. Pundrik who had conducted the post mortem

examination on the dead body was examined as PW-7. The

accused persons were examined under Section 313 of the

CrPC and on completion of the trial, the arguments of the

counsel appearing for the parties were heard.

5. The learned trial Court, after appreciating the evidence on

record passed a judgment and order dated 12.03.1980

finding all the accused persons guilty of the charge under

Section 302 read with Section 34 of the IPC and convicted

all of them under the aforesaid sections. By a separate

order, they were sentenced to undergo imprisonment for

life.

6. Being aggrieved by the aforesaid judgment and order passed

by the trial Court, three separate appeals were filed by the

accused persons - one by Shrawan Kumar and Brij Kishore

and the others by Ganesh Singh & Patai @ Krishna Kumar

respectively. The High Court after considering the entire

4 record upheld the order of conviction and sentence and

dismissed all the appeals.

7. Being aggrieved by the aforesaid judgment and order passed

by the High Court, the accused Ganesh Singh and Sri Patai

filed an appeal in this Court which was registered as

Criminal Appeal No. 1718 of 2007 whereas the accused Brij

Kishore filed a separate appeal which was registered in this

Court as Criminal Appeal No. 1719 of 2007. As the facts

and legal issues urged in both these appeals are similar in

nature, we propose to dispose of both the said appeals by

this common judgment and order. Before adverting to the

other issues, we may record that during the pendency of the

present appeal, one of the appellants namely Ganesh Singh

died and therefore his appeal stands abated. Thus, in the

present appeals we are concerned with only the two accused

persons namely, Sri Patai and Brij Kishore.

8. Both the counsel appearing for the said two accused

persons namely Patai and Brij Kishore very forcefully

submitted before us that none of the aforesaid two

5 appellants had fired any shot at the deceased and the

allegations that have been made against them are that they

were only holding the deceased and consequently, it could

not have been held that there was any pre-conceived or pre-

concerted meeting of minds and therefore their conviction

under Section 302 read with Section 34 IPC is illegal.

9. It was also submitted that the prosecution has failed to

prove that the present appellants had shared an intention

common with that of the other two accused persons namely

Ganesh and Shrawan Kumar who had in fact fired shots

from their country made pistols at the deceased resulting in

his death. The next submission of the counsel appearing for

the appellants was that this is a case where there were two

separate First Information Reports lodged with the police -

the first one was lodged at about 4.30 p.m. by the Assistant

Station Master whereas the First Information Report second

in point of time was lodged by P.W. 1 at about 5.15 p.m.

The counsel for the appellant forcefully contended before us

that since the said First Information Report indicates that

there was no eye-witness to the occurrence, framing and

6 calling of the three eye-witnesses by the prosecution could

not and should not have been believed and hence the

prosecution story should fail.

10.It was also submitted that under any circumstance it could

not be said that the present appellants are guilty of charge

under Section 302 and at the most they could be charged

under Section 304 of the Indian Penal Code.

11.We have considered the aforesaid submission in the light of

which we have carefully scrutinized the records. Since

there was a specific submission that there were two

separate First Information Reports lodged with the police on

the same date as aforesaid, we have analyzed the entire

records. The alleged First Information Report stated to

have been lodged by the Assistant Station Master is placed

on record as Annexure P-1.

12.The aforesaid report given by the Assistant Station Master

appears to be a telephonic message which was sent by the

Cabin man at the Rooma Halt Station to GRP. The text of

the message reads as follows: -

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"Message at 16.20 hrs. One passenger was shot dead at Roome cabin got down by 2 KA passenger p1 proved and arranged disposal of dead body."

13.It therefore appears that the aforesaid message was sent by

the Cabin man through the Assistant Station Master to the

GRP which was received at the GRP and on the basis of

which a chik report Ext. Kha-5 was prepared. This also

finds corroboration in the deposition of Shri O.N. Pandey,

DW-1.

14.He has also stated in his evidence that he registered a case

in GD No. 72, the true copy of which is Ext. Kha-8. He

further stated that at 4.40 p.m., he sent a message to the

control room on telephone and also gave a wireless message

to the Maharajpur Police Station, but he has admitted that

he had sent the wireless message through the control room.

There is however nothing on record to indicate that the

aforesaid report was sent to the Maharajpur Police Station

immediately and the same was received at the Police Station

Maharajpur prior to the lodging of the report given by P.W.

1. Besides, the aforesaid alleged report given by the

8 Assistant Station Master appears to be very cryptic and

without any details regarding the manner in which the

incident had taken place or mentioning the name of the

deceased.

15.Considering the contents of the said message, it cannot be

said that there was any possibility of recording a First

Information Report on the basis of the message sent to the

GRP by the Assistant Station Master. There is no concrete

evidence to indicate that any such information was in fact

sent and received at the police station. In order for a

message or communication to be qualified to be a First

Information Report, there must be something in the nature

of a complaint or accusation or at least some information of

the crime given with the object of setting the police or

criminal law into motion. It is true that a First Information

Report need not contain the minutest details as to how the

offence had taken place nor it is required to contain the

names of the offenders or the witnesses. But it must at least

contain some information about the crime committed as

also some information about the manner in which the

9 cognizable offence has been committed. A cryptic message

recording an occurrence cannot be termed as a First

Information Report.

16.In Ramsinh Bavaji Jadeja v. State (1994) 2 SCC 685, this

Court, while dealing with the issue as to when investigation

commences, observed with regard to the cryptic nature of a

message as follows in para 7 of that judgment:

"7. .................................. If the telephonic message is cryptic in nature and the officer in charge, proceeds to the place of occurrence on basis of that information to find out the details of the nature of the offence itself, then it cannot be said that the information, which had been received by him on telephone, shall be deemed to be first information report. The object and purpose of giving such telephonic message is not to lodge the first information report, but to request the officer in charge of the police station to reach the place of occurrence. On the other hand, if the information given on telephone is not cryptic and on basis of that information, the officer in charge, is prima facie satisfied about the commission of a cognizable offence and he proceeds from the police station after recording such information, to investigate such offence then any statement made by any person in respect of the said offence including about the participants, shall be deemed to be a statement made by a person to the police officer "in the course of investigation", covered by Section 162 of the Code. That statement cannot be treated as first information report. But any telephonic information about commission of a cognizable offence irrespective of the nature and details of such information cannot be treated as first information report..............................................".

17.In the present case, however, there is no proof regarding

the fact that the said information was sent to the Police at

10 Maharajpur and that it was received and therefore, the said

information cannot be said to be earliest first information

report submitted to the police. The actual first information

report as appears to us from the record is the report which

was submitted by P.W. 1, Prithvi Pal Singh, the informant

at 5.15 p.m. Therefore, the contention urged by the counsel

of the appellants that there were two separate First

Information Reports lodged with the police on the day of the

occurrence is without any merit.

18.The Investigating Officer has clearly stated in his deposition

that he had recovered three tickets from the possession of

the deceased. From the said deposition, it is thus clearly

established that on the fateful day i.e. 29.07.1977 not only

the deceased was travelling by the aforesaid train but the

two other persons namely, P.W. 1, Prithvi Pal Singh, the

informant and P.W. 3 Sri Jagannath Dubey, also travelled

with him in the same train and all the three got down at

the Rooma Halt Railway Station where the incident had

taken place. Therefore, there is no reasonable ground to

doubt that P.W. 1, the informant and P.W. 3 are not the

11 natural witnesses. They had in fact accompanied the

deceased and also observed and saw the manner in which

the entire incident had happened and taken place. P.W. 4,

Iqbal Singh was also a fellow traveller in the same train who

had also got down at the Rooma Halt Station. He has

clearly stated that he had seen the occurrence. There is

nothing on record to cast a doubt as to the presence of P.W.

4 also at the time and at the place of occurrence. The

evidence adduced by P.W. 1 and P.W. 3 clearly corroborate

each other with respect to the fact that both the present

appellants had accosted the deceased with pistols in their

hands and both of them had dragged the deceased from the

platform to the place near the Peepal tree where he was

shot dead by the other two accused persons.

19.The evidence adduced thus clearly establishes that all the

four accused persons carried weapons with them and at the

exhortation of Sri Ganesh Singh that it is the opportune

time to eliminate the deceased, accused persons namely Brij

Kishore and Patai dragged the deceased from the platform

to the Peepal tree, where the deceased was shot dead by the

12 other two accused persons namely, Sri Shrawan Kumar and

Sri Ganesh Singh. A pre-concerted mind and a common

intention to commit the offence are apparent on the face of

the record. Section 33, IPC defines the expression "act" in

the following words:

"The word "act" denotes as well a series of acts as a single act."

Section 34, on the other hand, lays down that when a criminal

act is done by several persons in furtherance of the common

intention of all, each of such persons is liable for that act in

the same manner as if it were done by him alone.

20.In our considered opinion, here is a case where the

appellants have committed the act of accosting the deceased

with pistols and dragging him away from the platform to a

place near the Peepal tree at the exhortation given by Sri

Ganesh Singh. Therefore, it could be said that not only the

two appellants were present at the scene of offence but they

actively participated in the commission of the offence by

doing acts in furtherance of the common intention of killing

13 the deceased. Therefore, the contention of the counsel

appearing for the appellants stands rejected.

21.It was also submitted by one of the counsel that the First

Information Report submitted by P.W.-1 was actually

written by the Police Officer or at least at his dictation and

the same could not have been drawn up at the place of

occurrence as alleged. The aforesaid submission is not

supported by any evidence on record.

22.On the other hand P.W. 1 has clearly stated in his

statement that he had drawn up the said first information

report at the place of occurrence in his own handwriting.

The fact that the said first information report is in a neat

and clean handwriting cannot always lead to the conclusion

that the said report was prepared by the police officer or at

his dictation. If the hand writing of the writer of the

information is neat and clean and he could express himself

clearly, no fault could be found against such writing. In the

present case, there is a clear deposition of PW-1 that it was

drawn by himself and in his own hand writing and there is

14 no evidence to impeach or doubt the said statement of the

witness. Consequently, the aforesaid submission is also

found to be without any merit.

23.Considering the entire facts and circumstances of the case,

we are of the considered opinion that the prosecution has

been able to establish by leading cogent and reliable

evidence, the guilt of both the accused persons who are

appellants before this Court, and therefore their conviction

and sentence under Section 302 read with Section 34 IPC

cannot be said to be in any manner illegal or unjustified.

24.The appeals, therefore, have no merit and are dismissed.

The records may be transmitted immediately.

....................................J. [Dr. Mukundakam Sharma]

.......................................J. [A.K. Patnaik]

NEW DELHI MARCH 30, 2010.

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