JUDGMENT
N.K. Sinha, J.
1. Till that black morning of 26th September, 1985 Sudama Pradhan was a happy man. He was the head of a joint family consisting of himself and his three sons. They were living together in a double storeyed joint family house in village Parasaganda, police station Sikraul in the district of Bhojpur. On that fateful morning at about 8′ O clock his eldest son Narmdeshwar Pradhan (appellant) shot dead his youngest brother Suresh Pradhan on the first floor of the house. The appellant was put on trial on a charge under Section 302 of the Indian Penal Code. He was found guilty and convicted and sentenced to undergo imprisonment for life by the learned Addl. Sessions Judge by his judgment and order dated 31st March 1992. Hence the appeal to set aside the conviction and sentence.
2. The morning tragedy struck his family. The informant Sudama Pradhan (P.W1) was sitting in the house of his Gotia Nand Kumar Pradhan (P.W.3) situated only at a short distance from his house. It was about 7.30 – 8 a.m. His grandson Ram Darash Pradhan (P.W.5) along with his younger sister Sunita came there and informed him that there was an altercation taking place over sharing of sugar in between Babuji (appellant) and Papaji (deceased). The informant rushed to his house. Soon after he reached his Darwaza he heard report of gun fire. He went upstairs and saw his youngest son (deceased) lying unconscious in a pool of blood near the northern window of the east facing room. He also saw his eldest son (appellant) holding his licensed rifle inside the east facing room. He then bolted the door of the said room from inside. The informant also saw his second son Jagtanand Pradhan (P.W.7) with bleeding injury on his chest. He learnt from the members of the family that an altercation had taken place in between sharing of sugar which had ultimately culminated in the shooting incident. The informant removed his youngest son to Sub-Divisional Hospital, Buxar, on a Jeep where he succumbed to his injuries at 11.45 a.m. on the very date of occurrence i.e. 26-9-85.
3. The Fardbeyan (Ext.3) of P.W. l was recorded in the hospital at about 1.30 p.m. on that very day by Sub-Inspector of Police Mr. Rameshwar Ram. Subsequently on its basis formal F.I.R. (Ext. 4) registering a case under Section 302, I.P.C. and Section 27 of the Arms Act was drawn up. An autopsy was held on the body of the deceased by Dr. Srikrishna Chandra Singh (P.W. 6) at Buxar Sub-Divisional Hospital on the very date of occurrence and his postmortem report is marked Ext. 2. The case was investigated by Mr. Balmiki Prasad (P.W. 8), Sub-Inspector of Police. He received the inquest report (Ext. 5) prepared by S. I. Rameshwar Ram who had also recorded the Fardbeyan (Ext.3) and inspected the place of occurrence as pointed out to him by P.W. 7. He recorded the statement of witnesses and after completing investigation charge-sheeted the appellant under Section 302, I.P.C. and Section 27 of the Arms Act. The appellant was, however, charged under Section 302, I.P.C. and convicted and sentenced in the manner already indicated above.
4. The prosecution case is sought to be proved by the evidence of witnesses of the occurrence namely Sudama Pradhan (P.W. 1), Shivjharo Devi (P.W. 2) Ram Darash Pradhan (P.W.5) and Jagtanand Pradhan (P.W.7). As already mentioned earlier P.W.I is the father of both the appellant and the deceased. P.W. 2 is the widow, P.W. 5 the son and P.W. 7 the brother of the deceased. The trial Court did not rely on the testimony of P.W. 7 on the ground that his statement under Section 162 of the Code of Criminal Procedure had not been recorded by the police. The trial Court, however, relying on the testimony of P.W. 1 P.W. 2, P.W. 5 and the facts and circumstances brought on the record including the medical evidence of the Doctor (P.W. 6) and the objective findings of the I.O. (P.W. 8) accepted the prosecution case as proved. While doing so it dismissed the defence plea that the appellant was innocent and had been falsely implicated. The trial Court had also taken care to consider the medical evidence on the record and had on its basis dismissed the defence case that the deceased had committed suicide. It may be mentioned that the evidence of Nand Kumar Pradhan (P.W. 3) who simply figured as a witness the Fardbeyan and the inquest report and the statement of Jagannath Pradhan (P.W. 4) who was tendered for cross-examination are not of much consequence.
5. That the deceased died of gun shot injuries received by him on the date of occurrence and on the first floor of his house does not appear to have been seriously challenged by the appellant. No such suggestion was given to any of the prosecution witnesses. Instead suggestions given indicated that the fact that the deceased was shot at and injured on the date, time and place of occurrence as alleged by the prosecution was not being challenged. For example the suggestion given by the defence to P.W. 2 the widow of the deceased in her cross-examination was that her husband had committed suicide which she denied.
6. There is also overwhelming evidence on the record that the deceased was shot at and injured on the first floor of his house and on being taken to the hospital succumbed to his injuries. The I.O. (P.W. 8) described the P.O. house as a Pucca house facing north and east. On the first floor of the house in front of the room to the south western corner he found presence of blood mark. He also noticed that attempt had been made to wash the blood. P.W. 1 had also heard the report of gun fire and seen the deceased .on the first floor of the house in a pool of blood. P.W. 2 on hearing the report of gun fire had gone upstairs and had seen the deceased lying there. The Doctor (P.W. 6) who held autopsy on the deceased found one oval lacerated wound 4″ x 3″ x bone deep, margin ragged inverted above the left ear with multiple fractures of the corresponding bone and brain matters protruding from the wound. The Doctor opined that the injuries had been caused by fire-arm. The Doctor did not mention in his evidence the time of conducting the postmortem examination. However, the post-mortem report (Ext. 2) mentions it to be 4.30 p.m. Hence the opinion of the Doctor that time elapsed since death was within six hours is consistent with the prosecution case. Thus it is established by overwhelming evidence on the record that the deceased was shot at and killed on the first floor of his house on the date, time and place as alleged by the prosecution. It may be recalled that the defence made no serious challenge to the aforesaid facts.
7. The important question for consideration is whether the occurrence took place in the manner alleged by the prosecution. The unfortunate shooting incident that took place was a sequel to a quarrel over sharing of sugar between the brothers. As already noticed earlier the three brothers, the appellant, eldest among them; Jagtanand Pradhan (P.W.7) and the deceased the youngest were all living jointly in the P.O. house. The quarrel over sharing of sugar was witnessed by P.W. 2 and P.W. 7 only. P.W. 7 is also the only eye-witness to the alleged occurrence as P.W. 1, P.W. 2 and P.W. 5 had gone upstairs where the shooting took place only after hearing the report of gun-fire. Since the evidence of P.W. 7 has its own importance being that of an eye-witness, I shall first consider as to whether the trial Court was right in discarding it.
8. The trial Court while noticing the fact that P.W. 7 had fully corroborated the case of the prosecution as an eye-witness had proceeded to observe that he had not given in detail the statement before the police under Section 162 of the Code of Criminal Procedure (hereinafter the ‘Code’) on the plea that he was mentally perplexed. The trial Court took the view that since “Jagatanand (P.W.7) did not give any detailed statement before the police, technically his evidence is not acceptable and he has also not been mentioned as a witness in the charge-sheet”. The trial Court had then proceeded to examine the remaining material on the record namely the circumstantial evidence and had come to the conclusion that the prosecution case had been proved. In other words the trial Court even without taking into consideration the eye-witness account of P.W. 7 as regard to the murder had held the appellant guilty. The I.O. (P.W. 8) has gone on record saying that he had inspected the P.O. as pointed out by P.W. 7 He also stated that the statement of P.W. 7 had been made on that very day in the same continuation. However, in course of the cross-examination the I.O. stated that he had not recorded his statement. As against this P.W. 7 stated that he had given his statement to the police. He reiterated the ame in the cross-examination when he deposed that he had stated before the police whatever he had stated in the examination-in-chief. This coupled with some of the admissions of the I.O. in this regard leave no room for doubt that P.W. 7 did make a statement before the I.O. (P.W. 8). However, the said statement does not appear to have been recorded in the case diary and his name was not mentioned as a witness in the charge-sheet submitted by the police.
9. The question for consideration is whether in view of what has been stated above the testimony of P.W. 7 should have been completely discarded by the trial Court on the ground that it was not technically acceptable. Section 161 of the Code deals with examination of witness by police. Section 161(1) of the Code provides that any Police Officer making an investigation under this Chapter, or any Police Officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Section 161(3) provides that the Police Officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. Section 162(1) lay down that no statement made by any person to a Police Officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the police making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The proviso to Sub-section (1) of Section 162 then provides how such statement which has been reduced into writing can be used by the accused with the permission of the Court or by the prosecution to contradict such witness. There is no authority for the proposition that only because the I.O. had not taken care in a particular case to reduce the statement to writing in course of investigation, the evidence of such a witness when produced in Court should be labelled as technically unacceptable. The informant (P.W. 1) had spoken about the presence of P.W. 7 on the roof top in the Fardbeyan itself. There is also other evidence on the record that P.W. 7 was on the first floor of the house when the shooting took place. He had appeared before the I.O. and had pointed out the place of occurrence. He claimed to have made statement before the police and the defence also put questions regarding such statement made by him in course of the cross-examination.
10. In view of all this only because the I.O. failed to perform his duties by not formally recording the statement of P.W. 7 in the case diary, there is no good ground to discard the testimony of P.W. 7 altogether for that reason after labelling it is technically unacceptable. Moreso when the trial Court itself had occasion to make an observation that it was rather unfortunate that “the investigation was perfunctory and was conducted in an ameaturish fashion and does not speak well of the efficiency or capabilities of the I.O.”. Hence in my view the evidence of P.W. 7 made before the Court has got to be taken into consideration for whatever worth it is and cannot be simply discarded because the I.O. did not reduce any such statement to writing in course of investigation.
11. The trial Court without taking into consideration the eye-witness account of P.W. 7 had proceeded to analyse and scrutinise the evidence on the record in a very able manner and had come to the conclusion, and in my opinion, for cogent reasons that they were sufficient to prove the guilt of the accused. There appears no good reason to disbelieve in the testimony of P.W.I. Why should a father falsely implicate his eldest son for the murder of his youngest son? He received the information regarding the quarrel between his sons over the sharing of sugar from his grandson P.W. 5 while he was sitting in the house of P.W. 3 which is at a distance of 150 yards from his own house. This is corroborated by P.W. 5 who happens to be the son of the deceased. The prosecution story is that P.W. 5 had been sent by his mother P.W. 2 to inform his grand-father. P.W. 2 did not make any such statement before the I.O. which, as rightly observed by the trial Court, was of no significance as the evidence of P.W. 5 was sufficient to corroborate the testimony of P.W. 1 that he went back to his house on receiving the information regarding the quarrel from his grandson P.W. 5. No sooner P.W. 1 reached his house he heard the report of gun-fire and went upstairs. In other words he went to the roof top i.e. the first floor of the house and as testified to by him he saw the appellant inside the room with rifle in his hand and the deceased lying in a pool of blood at about 3 feet from the window. He had also seen his other son (P.W.7) with blood-stains suggesting that he may have been injured. There is no evidence on the record that P.W. 7 was not injured and his clothes had some blood mark on account of his having gone to the help of his deceased brother after he was shot at. It has already come in evidence that there are rooms on the first floor on three sides namely south, east and west. There are two rooms on the western side both facing east and the appellant was living in the southwestern room which had a window besides the door facing east. It was through this window that P.W.I had seen the appellant standing in the room with rifle in his hand and it was in front of this window towards the east that he had seen the deceased lying on the ground with injury. Both P.W. 2 and P.W. 5 who also went upstairs after hearing the report of gun-fire almost simultaneously had also testified to the aforesaid facts. The trial Court had relied upon the evidence of P.W. 1, P.W. 2 and P.W. 5 but while recording its finding of guilt against the appellant appears to have led the entire weight in support of the finding on the testimony of the informant (P.W. 1) The trial Court observed that the link in the chain is complete and the evidence of relevant prosecution witnesses and attending circumstances clearly pointed out that the accused was the assailant.
12. As already observed earlier the evidence of P.W. 7 and eye-witness of the occurrence is legally admissible and the trial Court ought not to have discarded it on a technical ground. He is none other than the brother of both the appellant and the deceased. His presence in the house on the date of occurrence is fully established. P.W.I spoke about his presence as also P.W. 2 and P.W. 7. P.W. 2 and P.W. 7 have also spoken about the quarrel that preceded shooting in between the brothers regarding sharing of sugar. It was all about one bag of sugar which was lying on the ground floor and which the appellant wanted to lake. P.W. 7 was not inclined to give the whole bag to his eldest brother (appellant) and meanwhile the youngest brother (deceased) had intervened suggesting that the appellant may have the bag only after the father returned home. It was only thereafter that the appellant who was himself a rifle licensee went upstairs in his room. Both P.W. 7 and the deceased went upstairs to reason with him with a view to soothe his feeling. P.W.1 has also corroborated the statement of P.W. 5 that he had informed him that the appellant and the deceased were quarrelling over sugar. There is, therefore, ample evidence on the record with regard to the genesis of the occurrence. Moreover not one suggestion was given by the defence to any of the prosecution witnesses challenging this part of the prosecution case. The eyewitness account of P.W. 7 which I see no reason to disbelieve goes to prove that it was the appellant who fired the shot from his rifle through the window which hit the deceased. His testimony is also supported by those of P.W.1 who reached the roof top immediately after the shooting and found the appellant inside the room through the window with a rifle in his hand and the deceased lying injured on the ground. It is, therefore, immaterial for the prosecution whether the Court ought to place reliance on the testimony of P.W. 2 and P.W. 5 that they had also seen the appellant with rifle in his hand on the ground that they had made no such statement before the police.
13. Sri Sudhir Singh who appeared as Amicus Curiae on behalf of the appellant argued that there were a number of infirmities in the judgment of the trial Court inasmuch as the Court in convicting the appellant had made illegal use of the contents of the case diary. In that connection he referred to paragraphs 14 and 15 of the judgment wherein the statement of P.W. 2 recorded by the I.O. was referred to in course of which she had supported the genesis of the occurrence and the F.I.R. Likewise the statement of P.W. 5 recorded in the case diary that he had come to know that the deceased had been killed by the appellant was also referred to. The statement of a witness recorded in the case diary can be used strictly for the purposes mentioned in Section 162 of the Code and while the Court is competent to look to the contents of the case diary, it cannot make any use of the statement of any witness unless it fulfilled the requirement of Section 162 of the Code. However, whatever use the Court had made of the statement of P.W. 2 and P.W. 5 recorded in the case diary is so insignificant that it had nothing to do with the conclusion of the guilt arrived at by the trial Court.
14. It was next argued on behalf of the appellant that the Chaukidar who had gone to the police station had not been examined and his name also did not figure as a witness in the charge-sheet. There is a sentence in the Fardbeyan (Ext.3) that the Chaukidar had been sent to the police station. There is no evidence on the record that the police had recorded the statement of any Chaukidar or that if such statement was recorded it was before recording of the Fardbeyan (Ext.3). In other words there is no material on the record to even suspect that the prosecution had withheld the initial version of the occurrence by not bringing on record the statement of Chaukidar in respect of the occurrence. Learned Counsel for the appellant argued that on his own admission P.W. 1 had bolted the room of the appellant from outside by using the door chain. There is also evidence on the record that the room had been locked. The I.O. (P.W. 8) did not find any evidence that the door had been broken open in course of inspection of the P.O. There is evidence on the record that immediately after the shooting P.W. 1, P.W. 2 and P.W. 7 had left for the hospital along with injured. There is also evidence that the wives of P.W. 1 and P.W. 7 were not present in the house on the date of occurrence. It is possible that after the prosecution party left for the hospital some well wisher’s or friends as observed by the trial Court had helped in unlocking the door which enabled the appellant to escape. In any view of the matter the objective findings of the I.O. referred to above did not create any doubt about the truth of the prosecution case. Counsel for the appellant could not find any flaw in the approach of the trial Court in relying upon certain circumstances which were only consistent with the guilt of the appellant. It was rightly observed that the manner in which the accused had bolted himself inside the room after the shooting was incompatible with his innocence. If the appellant was not responsible for shooting the deceased there appears no good reason why he would not have gone immediately to the rescue of his brother or accompanied him to the hospital.
15. One of the suggestions given to P. W. 2 in the cross-examination was that her husband had committed suicide. She had denied this suggestion. There is also no reason whatsoever why the deceased would have committed suicide. As a. matter of fact the trial. Court had considered the defence case in sufficient detail and had described the suggestion as “wild and meaningless”. The testimony of the eye-witness (P.W.7) as also those of P.W1 and P.W. 2 completely exclude the story of suicide. P.W. 7 had seen the shot being fired by the appellant and P.W. 1 had seen the appellant having the rifle and the deceased lying injured on the ground. The evidence of the Doctor (P.W. 6) who held autopsy also completely exclude the theory of suicide. The Doctor stated in the cross-examination that the injury could not have been caused by a person committing suicide and that the injury sustained did not indicate that the shot was fired by close contact with the body. Had it been a case of suicide the fire-arm would have been in the hand of the deceased or lying near about him. The evidence on the record is that the only fire-arm visible namely the rifle was in the hand of the appellant who was inside his room behind the east facing window. In other words even without the help of the medical evidence referred to above the story that the deceased had committed suicide deserves to be dismissed as absurd.
16. Learned Counsel for the appellant next argued that if this Court was inclined to believe the prosecution case as has been done by the trial Court, it ought pot to uphold the conviction of the appellant under Section 302, I.P.C. and alter it to one under Section 304, Part II, I.P.C. It was pointed out that the prosecution case itself discloses that the appellant after he had a quarrel with his brother over sharing of sugar had gone upstairs in his room. He was in his room where according to the prosecution evidence both the rifle belonging to him and a gun belonging to his father (P.W. 1) were kept. His two brothers the deceased and P.W. 7 had gone upstairs in their rooms. Since the appellant did not come down stairs after the quarrel with his rifle to kill the deceased no intention on his part to kill the deceased following the quarrel over sharing of sugar could or ought to be imputed to him”. It was argued that P.W. 7 may not be disclosing the complete truth as to what happened upstairs leading to the firing of the shot by the appellant and it can be easily presumed that some exchange of words had taken place which gave provocation to the appellant and the appellant being deprived of the power of self-control by such grave and sudden provocation had caused death of the deceased. The argument was advanced in support of the contention that it is a case of culpable homicide not amounting to murder within the meaning of Exception 1 of Section 300, I.P.C. The argument, though attractive, has no substance and has got to be rejected. Both the brothers P.W. 7 and the deceased had gone upstairs not to provoke the appellant by their conduct but with a view to reason with him not to quarrel over the sharing of sugar with a view to soothe his feelings. The conduct of the deceased was therefore of a younger brother showing concern for the feelings of the eldest brother and such concern on his part which made the brothers go upstairs near the room of the appellant was wholly inconsistent with the theory that the deceased had said something to the appellant which made the appellant lose his self-control. The way and the manner in which the shot was fired, the nature of injuries caused and the vital part of the body hit left no room for doubt whatsoever that the shot was fired with the intention to kill the deceased and the trial Court had rightly convicted the appellant for an offence of murder punishable under Section 302, I.P.C.
17. I, therefore, find and hold that even without taking into consideration the testimony of an eye-witness P.W. 7 the trial Court on the basis of the facts and circumstances brought on the record including the evidence of P.W. I, P.W. 2 and P.W. 5 had correctly recorded a finding of guilt against the appellant. The testimony of P.W. 2 the only eye-witness to the murder has been found to be both acceptable in evidence and also reliable forreasons already mentioned above, and the trial Court was in error in discarding it on the ground that it was technically unacceptable. The defence case that the deceased had committed suicide and that the appellant had been falsely implicated had rightly been disbelieved by the trial Court for reasons recorded and I see no reason to take a view of the evidence other than the one taken by the trial Court. The prosecution had thus proved the case in the manner alleged beyond reasonable doubt.
18. The trial Court had, therefore, rightly convicted the appellant under Section 302,I.P.C. and passed the sentence of imprisonment for life. The same is hereby confirmed and the appeal dismissed.
P.K. Sarin, J.
19. I agree.