JUDGMENT
Anand Prasad Sinha, J.
1. Since both these appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment.
2. All the six appellants of Criminal Appeal No. 90 of 1979, namely, Basant Singh, Narain Singh, Umendra Singh, Siya Saran Singh, Nawlesh Singh and Birjan Singh have been found guilty for the offence punishable under Section 302 read with Section 149 of the Penal Code and each has been sentenced to undergo rigorous imprisonment for life. They have also been found guilty for the offence punishable under Section 148 of the Penal Code and each of them has been sentenced to undergo rigorous imprisonment for three years. Appellant Birjan Singh and Narain Singh have further been convicted under Sections 25A of the Arms Act and 324 of the Penal Code and each has been sentenced to undergo rigorous imprisonment for three years under each count. Appellant Bhagwan Singh of Criminal Appeal No. 106 of 197!) has been found guilty for the offence punishable under Section 302 of the Penal Code and has been sentenced to undergo imprisonment for life. He has also been found guilty for the offence under Section 148 of the Penal Code and has been sentenced to undergo rigorous imprisonment for three years. However, the sentences are to run concurrently.
3. The prosecution case, briefly stated, is that there is a Ghairmazrua Malik Ahar bearing plot No. 124 situated towards the south of village Jagdishpur. Jagdishpur village is adjacent to another village Sabdullachak. The villagers of Jagdishpur and Sabdullachak used to utilise that Ahar for irrigation purposes. The fish of the Ahar were auction sold by the Circle Officer of Masaurhi Block to the public. In the year 1969-70 the auction of the fishing right was made by the Circle Officer of Masaurhi Block in favour of Rajendra Singh (P.W.16). It was for Rs. 99A and the amount had been deposited and a Parwana (Ext. 7) had been issued in his favour. Rajendra Singh was resident of village Sabdullachak. It appears that at the time of auction the villagers of village Jagdishpur had raised objection but that was rejected and an appeal had been preferred to the Land Reforms Deputy Collector, Patna. The settlement was further approved on appeal also.
4. However, while the Sarait appeal was pending for decision, Rajendra Singh (P.W.16) along with Sheodas Singh (P.W.3), Mukund Singh (P.W.4), Ramrup Singh (P.W.5), Brahamdeo Singh (P.W.7), Kuna Singh (P.W.8), Ram Swarup Singh (P.W.9), Jitan Singh (P.W.10), Mundrika Singh (P.W.14) and Jadu Singh (P.W.15) and others including deceased Nandkeshwar Singh were fishing on 30-11-1969 at about 11 A-M. The appellants along with several others came over there. Appellant Bhagwan Singh was armed with his licensed gun, appellants Birjan Singh and Narain Singh were armed with unlicensed fire arms, Basant Singh, Siya Saran Singh, Uraendra Singh and Nawlesh Singh were armed with Bhala. They protested against catching of fish. Informant Rajendra Singh (P.W.16) replied that he had got Parwana to catch fish, hence he would proceed with catching fish from the Ahar. There was some altercation. Sheodas Singh (P.W.3), Mukund Singh (P.W.4) and one Ram Das of village Jagdishpur had asked the parties not to quarrel. The appellants did not listen and appellant Basant Singh ordered to open fire. Consequent to this appellant Bhagwan Singh fired his gun which killed Nandkeshwar Singh at the spot. Appellants Narain Singh and Birjan Singh fired from their unlicensed country made pistol which hit Jadu Singh (P.W.15) and Kuna Singh (P.W.8) respectively and they had contacted injuries on their body. Thereafter the appellants fled away. It appears that one Mundrika Singh (P.W.14) had also received injuries but his assailant could not be ascertained.
5. After the occurrence, Rajendra Singh (P.W.16) left the dead body of Nandkeshwar Singh in the charge of Ramrup Singh (P.W.5) and he along with Sarbanand Singh (P. W. 11), Ram Swaroop Singh (P.W.9), Jadu Singh (P.W.15) and Kuna Singh (P.W.8) went to the Masaurhi police station. On the statement of the informant P.W.16, the first information report (Ext9) had been recorded by Shri R. K. Shukla, Sub Inspector of Police. At the police station other injured, namely, Mundrika Singh (P.W.14) also arrived. His injury report had been prepared by Shri R. K. Shukla, Sub Inspector of Police and the injured persons were forwarded to Patna Medical College Hospital for treatment.
6. The defence appears to be complete denial of the occurrence as unfolded by the prosecution and false implication on account of enmity. Further, it appears that the defence had put forward a different version. According to the defence, Jagdishpur consists of 80 to 85 houses belonging to different castes of people. Village Sabdulla Chak was situated at a distance of 500 yards west of Jagdishpur. The Ahar in question stood on plot No. 124 and as a matter of fact it was a Ghairmazrua Aam and not Ghairmazrua Malik. The Ahar used to be the source of irrigation for village Jagdishpur only. Accordingly, the Circle Officer, Masaurhi had no right to settle the said Ahar for catching fish to any person. The informant was consistently laying false claim over the Ahar since long and when he failed to take possession over the said Ahar he in collusion with the Circle Officer, Masaurhi -manufactured a Parwana Ext. 7 to disturb the possession of the people of village Jagdishpur. Previously, the informant had made an attempt to take possession of the Ahar but he was not successful. In the early morning of 30-11-1969 while it was dark, the people of Jagdishpur were irrigating their lands from that Ahar by means of Latha and Karins. At that moment P. W. 16 in a mob of which Nandkeshwar Singh was also a member, armed with firearms raided that Ahar and obstructed the irrigational operation. In that confusion the prosecution party themselves opened fire as a result of which Nandkeshwar Singh had died. In the same transaction the prosecution had caused injuries on the person of the two injured. Mukhia Ram Jatan Singh was inimical with the family of the appellants and hence with his collusion the appellants have been named in the case as accused persons.
7. Learned Counsel appearing on behalf of the appellants has mainly confined his argument on the appreciation of evidence. In addition, it has been specifically mentioned that the witnesses are not reliable. Further it has been stated that all the members of the same family have been made accused in this case. In addition, a point has been made that the Investigating Officer has not been examined in this case, and that being so, serious prejudice has been caused to the accused persons and on that background the order of conviction is erroneous.
8. It will be advisable to take up the last point in the last after the evidence in the case is discussed and the other submissions are considered.
[After dealing with evidence in paras 9 to 17 his Lordship proceeded. ]
18. Now, the effect of non-examination of the Investigating Officer needs consideration and how far it has affected the instant prosecution allegations.
19. In order to press this point, learned Counsel appearing on behalf of the appellants has made his argument as follows:
(i) Non-examination of the Investigating Officer has prejudiced the defence and appellants have become entitled for acquittal.
(ii) Non-examination of the Investigating Officer will not establish the place of occurrence when some other manner of occurrence is pleaded.
(iii) Prejudice has been caused as the prosecution has relied upon the evidence of Mundrika Singh (P.W.14) and Jadu Singh (P.W.15), the two injured persons.
(iv) If the Investigating Officer would have been examined, it would have been known as to whether fishing had been done or not.
(v) Non-examination of the Investigating Officer will not bring contradictions on the record.
20. In order to consider the points raised, it will be necessary first to find out as to whether non-examination of the Investigating Officer will cause prejudice to the accused as a matter of rule or not? And, therefore, the role of an Investigating Officer during investigation; the case diary vis-a-vis trial have to be looked into.
21. The activities of the Investigating Officer immediately starts after the law is set in motion with regard to a cognizable offence when an information to the police has been given covered by Section 154 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as {he Code). The investigation is conducted, as a matter of course without any direction whatsoever, as indicated in Section 156 of the Code. In course of investigation, the two important functions apparently are, the first being examination of witnesses as contemplated under Section 161 of the Code. The use of such statements made by the witnesses is indicated in Section 162 of the Code. The prominent substance of this provision is that such statements are not used for corroboration but for contradiction only. The question of contradiction arises only when the Investigating Officer comes in the dock to give evidence in a particular trial. The next important function is the objective finding of the Investigating Officer under the four walls of law and that will also include the inspection of the place of occurrence. Of course there are also connected functions like seizure of articles, blood and any such material connected with the commission of the offence.
22. On the basis of the facts, mentioned above, the important function of the Investigating Officer as a witness now can be said to be that if some statement of witnesses during trial does not appear to be stated at the earliest stage meaning thereby, while giving statement before the Investigating Officer, that becomes an important aspect for contradicting the witness, for the defence of the accused, of important omissions of statement of some facts before the Investigating Officer but mentioned during the trial in the evidence having great impact upon the prosecution case will be a relevant fact for consideration as to whether the statement made in evidence can be said to be a genuine statement or an afterthought. Similarly, when there is a dispute with regard to the place of occurrence and also the manner of occurrence, in that case also the defence may develop that point with reference to the objective findings of the Investigating Officer. When the Investigating Officer is in the dock absolutely, there is no problem for the defence but the real problem arises if the Investigating Officer has not at all been examined in the case.
23. During the recent times, it has been noticed that the trial court has to face tremendous difficulties in procuring the attendance of the Investigating Officer for the reasons that they are transferred frequently and the sessions trial is taken up after some delay from the time when the investigation had been (completed?) in the case. The problem has also to be faced in case the Investigating Officer is dead or he retires from service and in the case of the latter in spite of prolonged adjournments the attendance is not procured.
24. Under the circumstances, in such exigencies the writings of the Investigating officer is proved by a competent witness in the diary. Therefore, a question arises that how far a court is entitled to make use of that portion of the diary during the trial. Also it has to be considered that non-examination of the Investigating Officer, as to what extent, has prejudiced the case of the accused and whether that can be a ground for acquittal.
25. A Bench decision of the Patna High Court in the case of Yusuf Sheikh v. Emperor AIR 1946 Pat 127 has laid down as follows:
The court would not be justified in using the police diary to the prejudice of the accused, even-if-the defence requests it to examine the diary. Where the Court peruses the diary it is impossible to avoid the conclusion that it has allowed its mind to be influenced by what it found in the diary and what was not before it. The conviction cannot be maintained in such a case.
Another decision of the Supreme Court in the case of Hazari Lal v. The State (Delhi Admn.) will indicate the use and scope of statements of witnesses made under Section 162 of the Code. It runs as follows:
Statements made by witnesses in the course of investigation cannot be used as substantive evidence. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a police officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by Section 145 of the Evidence Act Where any part of such statement is so used any part thereof may also be used in the re-examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of Section 32(1) of the Evidence Act or permitted to be proved under Section 27 of the Evidence Act. The definition of “proved” in Section 3 of the Evidence Act does not enable Court to take into consideration matters, including statements, whose use is statutorily barred.
The restraint imposed for the use of the diary is indicated in the case of Habeeb Mohammad v. State of Hyderabad . It Lald down as follows:
A judge is in error in making use of the police diaries at all in his judgment and in seeking confirmation on his opinion on the question of appreciation of evidence from statements contained in those diaries. The only proper use he could make of these diaries is the one allowed by Section 172.
26. So the use and perusal of case diary by a Court is within limitations and restricted ambit. It must be summed as follows:
(a) It is for aiding an enquiry or trial.
(b) It shall not be used for corroboration or adoption of certain facts transplanted like by conduit pipe.
(c) Use should be sparingly but not as a matter of rule on the principle as at (a).
(d) If Investigating Officer not examined, prejudice to the accused as claimed by the defence has to be considered and looked into and even after perusal of the diary, so permitted, the element of prejudice persists, benefit should be given to the accused of course depending upon the facts and circumstances of each case.
27. Of course, it is true, the Investigating Officer is an important witness, but cannot be substituted for an inevitable witness. If on account of certain compelling circumstance his attendance could not be procured, the extent of impact upon the prosecution case on account of absence of the Investigating Officer shall depend upon the facts and circumstances of each case.
28. In the instant case, from perusal of the evidence the following are the admitted facts:
(i) Sheodas Singh (P.W.3) has been examined by the Investigating Officer on 6-12-1969. Jitan Singh (P.W.10) also gave his statement after a few days before the Investigating Officer at the police station and from his evidence it appears that other witnesses had also been examined on that date. Ramroop Singh (P.W.5) also gave his statement after 5-6 days.
(ii) Jitan Singh (P.W.10) and Mundrika Singh (P.W.14) happened to be the brothers and are also brothers of the deceased.
29. Even considering the admitted facts, mentioned above, the non-examination of the Investigating Officer in this case cannot be said to be a matter of such prejudice making entitled appellant Bhagwan Singh for acquittal Even accepting the fact that some of the witnesses, as stated above, have been examined not promptly but on the basis of the evidence of the informant and other a few witnesses, the weight of the prosecution allegation levelled against appellant Bhagwan Singh could not be dispelled.
30. Non-examination of the Investigating Officer will not make the place of occurrence vague and doubtful because the evidence of the witnesses are sufficient to fix the place of occurrence as unfolded by the prosecution. Moreover, in the facts and circumstances of the case, no exception or exoneration can be awarded to the appellant Bhagwan Singh for any justification for the use of the gun.
31. Absolutely, no contradiction has been pointed out and thus no case of prejudice has been made out in absence of the examination of the Investigating Officer and, therefore, non-examination of the Investigating Officer cannot said to have prejudiced the defence to the extent that the allegations directed against appellant Bhagwan Singh has to be rejected.
32. No case has been made out that the evidence of Mundrika Singh (P.W.14) and Jadu Singh (P.W, 15), in absence of the evidence of the Investigating Officer, will render the prosecution case untrue specially when that portion of the prosecution case relating to the firing by revolver has not been accepted.
33. Therefore, in the facts and circumstances of the case, no case of prejudice has been made out due to non-examination of the Investigating Officer.
34. On the basis of the evidence discussed above and on careful consideration of all aspects of the case, firing by appellant Bhagwan Singh has been established and accordingly the order of conviction and sentence passed against him by the trial court cannot be altered.
35. In the result Criminal Appeal No. 90 of 1979 filed on behalf of appellants Basant Singh, Narain Singh, Umendra Singh, Siya Saran Singh, Nawlesh Singh and Birjan Singh is hereby allowed. The order of conviction and sentence passed against them by the trial court is hereby set aside and they are acquitted.
36. Criminal Appeal No. 106 of 1979 filed on behalf of appellant Bhagwan Singh, on the basis of the discussions made above, is dismissed.
B.P. Griyaghey, J.
37. I agree.