JUDGMENT
Ripusudan Dayal, C.J.
1. This appeal arises from the judgment and order by the learned Sessions Judge, South and West dated 26-10-1999, convicting the accused/appellant under Section 302, IPC for murdering his wife, Manju Rai and sentencing him to life imprisonment and also a fine of Rs. 10,000/- and in default of payment of fine, to undergo further imprisonment of six months.
2. Manju Rai was the wife of the appellant, Rajesh Rai. The incident took place between 21-9-1992 and 22-9-1992. Rajesh Rai was at that time posted as Bramch Manager in Rabtentse Branch of the State Bank of Sikkim. Manju Rai was posted as Cashier in the Gyalzing Branch of the same bank. The prosecution case is that on 22-9-1992 at 1045 hours, a telephonic message was received at Gyalzing Police Station from Shri Tenzing Bhutia, Branch of Gyalzing Branch stating that the wife of Rajesh Rai, Branch Manager, Rabtenste Branch had died due to consumption of poison. Thereupon, Shri P.M. Rai (PW 16), Officer-in-charge of the Police Station along with his party proceeded to the place of occurrence. General Diary entry No. 244 was recorded to that effect. Next Generaly Diary entry No. 245 recorded on the same date at 3 p.m. states that while on way to the place of occurrence, at the Gyalzing Out Post, constable Bom Bahadur Rai handed over to him a complaint given and signed by Rajesh Rai. The complaint is reproduced in the General Diary entry and is to the effect that on 21-9-1992, Rajesh Rai and his wife Manju Rai got a little quarrel which resulted in the beating of each other on the evening of 3 pm. on that date.The complaint further stated that thereafter, the wife started drinking and both of them got into a hot discussion which upset both of them and he came to know in the morning of 22-9-1992 that she had taken poison, as she started vomiting with bad smell and that he had never excepted such a thing to happen. The General Diary entry further states that this complaint was taken into possession by the Officer-in-charge and then he proceeded towards the place of occurrence. On reaching the place of occurrence, dead body of Manju Rai was found. A rough sketch of the place of occurrence, was prepared, photographs were taken from different angles, inquest on the dead body was conducted and then, the dead body was fowarded to Gyalzing hospital for autopsy. During inquest, multiple injuries were found all over the body including head region. The wearing apparels of the deceased Manju Rai were seized in the presence of the witnesses. Since some injuries were found on the body of Rajesh Rai also, he was forwarded for examination and medical opinion to the Gyalzing hospital. The requisite articles were seized from the house of Rajesh Rai in the presence of respectable witnesses. The next entry is No. 246 of the same date i.e. 22-9-1992 recorded at 1500 hours to the effect that on the basis of the complaint report submitted by Rajesh Rai by General Diary entry No. 245, U.D. Case No. 10(9)92 dated 22-9-1992 under Section 174, Cr.P.C. was registered and taken up’ for investigation. This is followed by entry No. 247 recorded on the same date, that is, 22-9-1992 at 1600 hours to the effect that on detailed enquiry of Gyalzing Police Station U.P. Case No. 10(9)92 dated 22-9-1992, it was revealed that on 21-9-1992 Rajesh Rai, husband of the deceased Manju Rai, had quarreled with his wife from the very morning of 21-9-1992 and Rajesh Rai had physcially assaulted his wife, Manju Rai, with danda which resulted in the death of his wife due to multiple injuries in head regions. The danda was also recovered from the place of occurrence. The entry further records that there being a prima faice case made out against Rajesh Rai under Section 302, IPC, a case under that section was registered as case No. 30(9)92 under Section 302, IPC dated 22-9-1992 suo motu for further investigation. The next General Diary entry is of the same date recorded at. 1630 hrs to the effect that Rajesh Rai was arrested and kept under police custody for detailed interrogation. Suo motu FIR by the Officer-in-Charge, Gyalzing Police Station addressed to the District Magistrate, West District, Rabtentse is exhibit P-9 and the formal FIR recorded on the basis is exhibit P10. A charge under Section 302, IPC was framed against the appellant during the course of the trial. A supplementary charge sheet was also filed on 17-9-1996 when the Investigating Officer received the CFSL and serological reports. The experts opined that the test for consumption of poison was found to be negative in the viscera and blood stains in the exhibits were found those of human blood.
3. On 22-11-1999, learned counsel for the appellant submitted that though, according to the prosecution case, the appellant had made a report to the Officer-in-Charge, Gyalzing Police Out Post that his wife, Manju Rai, had died by consuming poison that report was not on the record which made the case of the prosecution doubtful. We took note of the fact that the Investigating Officer, Shri P.M. Rai had deposed as PW 16 that the report of Rajesh Rai was produced before the trial Court along with the charge sheet. However, the same was not available on record. The learned Public Prosecutor requested for sometime to enquire as to the whereabouts of that record and then the matter was listed on 24-11-1999. On 24-11-1999, the learned Public Prosecutor submitted that the document could not be found despite search having been made in the Court of the learned Judicial Magistrate, though the General Diary was available. We, therefore, directed the learned Sessions Judge, South and West to record evidence on this aspect of the matter. Accordingly, the learned Sessions Judge brought on record the General Diary entries which we have already referred to, along with some other entries which were not referred before us during arguments. The learned Sesisons Judge also recorded the evidence of S.I. Shri S.K. Pradhan who was at the relevant time the second Officer-in-Charge at the Gyalzing Police Station to prove the General Diary entries.Shri P.M. Rai, the Investigating Officer, could not be examined subsequent to our aforesaid direction as he is presently at Cosovo on U.N. Peace Keeping Mission. Shri S.K. Pradhan has deposed that while writing the diary, carbon is placed between the two pages and the original is sent to the concerned Superintendent of Police, while the copy is retained at the Police Station for the purpose of record. Further, he has stated that the original of the General Diary entries may be lying with the concerned Superintendent of Police.
4. The prosecution, examined altogether, fifteen witnesses and one witness namely, Narendra Gautam, was simply tendered. It needs be mentioned that the incident ocurred with in the close doors of the residene of the couple and there was no eye witness to the incident. The case, therefore, rests purely on circumstantial evidence. The learned Sessions Judge discussed several circumstances which were urged by the learned Public Prosecutor before him and held them to be established by the evidence on record. These circumstances are as under :
(i) There is no doubt that the accused and the deceased were husband and wife.
(ii) Both, the accused and the deceased were employees of the State Bank of Sikkim. The accused was working as the Branch Manager at Rabtentse Branch at Tikzuk, Gyalzing and the wife was working as Cashier Gyalzing Branch, Gyalzing.
(iii) The accused and the victim used to quarrel very frequently.
The above circumstances are proved byhe evidence of Palden Bhutia, PW-2, who along with his wife used to stay on the first floor of the same building, at the relevant time, whereas, the accused and his wife resided on the ground floor, as tenant. Palden Bhutia on 21-9-1992 heard the appellant and his wife quarreling. He also testified that they used to quarrel frequently. Smt. Ongmola Kaleon, PW-4 is known to the accused, since she was working as Cashier in the Rabtentse Branch of the State Bank of Sikkim where the appellant was the Branch Manager. She has deposed that when she was returning home from the office, the accused was standing outside the sitting room of his house. He was found under the influence of alcohol and she was, therefore, afraid to go to his house alone. She called Nakyo (PW-1) who is the daugher of the owner of the house and they both went inside the house of the appellant. By that time, the appellant was also inside the siting room. They both noticed some pieces of bottle lying on the floor of the sitting room. The appellant collected the broken pieces and put them inside the dustbin. They did not see the wife. The accused told them that his wife was sleeping inside the adjoining room. Her statement is corroborated by Nakyo Bhutia, PW-1 who has also deposed that she and PW-4 had gone to the house of the appellant. Top Tshering Bhutia, PW-14 was working as a peon in the State Bank where the deceased wife was working as a Cashier. His evidence also proves among other things that the deceased was the wife of the appellant.
(iv) The fourth circumstance is that the deceased was annoyed with the accused on 20-9-1992 so much so that the appellant took shelter in the house of PW-13, Tenzing Bhutia, Branch Manager of the Branch where the wife was working. Tenzing Bhutia, PW-13 has deposed that the appellant came to his residence at about 8 p.m. and said that his wife, the deceased, was annoyed with him and that the witness told him that he could stay with him if he so desired. The appellant accepted his offer and stayed with him during that night. On the following day, which was a Monday, the appellant left for his residence. When the witness went to the office, the deceased who was working as a Cashier was absent. Therefore, the witness sent peon Top Tshering Bhutia to fetch the cell keys. The peon came back with the keys but the deceased did not attend office nor did she send any leave application. The evidence of this witness gets corroboration from the statement of the peon Top Tshering Bhutia, PW-14.
(v) Fifth circumstance is that on 21-9-1992, the appellant returned to his house early in the morning and he again had quarrel with his wife. In this connection, reference has been made to the evidence of P.W.-2, Palden Bhutia who deposed that he heard the appellant and his wife quarrelling.
(vi) The sixth circumstance is that on 21-9-1992, the appellant and his wife did not attend their respective offices. This has been testified by PW-13 and PW-14. Apart from the evidence of Shri Tenzing Bhutia, PW-13 which has already been discussed on this point, Shri Top Tshering Bhutia deposed as PW-14 that when he went to the house of the appellant to get the keys of the cell he knocked the door whereupon the appellant opened the door and asked the witness what he wanted. The witness told him that he had come to collect the keys of the cell from his wife whereupon the appellant went to collect the keys and handed over the same to the witness.
(vii) The seventh circumstance is that the deceased did not send any leave application which she would have done in normal course. This has been borne on the evidence of the P.W.-13, Shri Tenzing Bhutia.
(viii) The eighth circumstance is that on 21-9-1992 the accused and the appellant were at home.
(ix) The ninth circumstance is that when P.W.-1 and P.W.-4 went to the house of the appellant in the evening, they found pieces of broken bottle in the sitting room.
(x) The tenth circumstance is that P.W.-5, Chucki Bhutia, saw some flower pots lying broken in the verandah of the house of the appellant.
(xi) The eleventh circumstance is that P.W.-2, Palden Bhutia, noticed in the evening of 21-9-1992 at about 5.30 p.m. some injuries on the face of the appellant, whereupon he told the appellant that he should not fight with his wife frequently. This suggests that the appellant had some quarrel with the deceased. The evidence of this witness regarding the injury on the forehead of the appellant is corroborated by the evidence of Dr. R.K. Thapa, Medical Officer of the Gyalzing Government Hospital who deposed as PW-9 that after examining the appellant, he found asmany as eleven injuries on his person which have been duly noted by the learned Sessions Judge in his judgment. It is not necessary for us to reproduce them.
(xii) Twelfth circumstance is that in the morning of 22-9-1992, the appellant called PW-2, Palden Bhutia and asked him to call a doctor, saying that his wife was serious. Palden Bhutia has deposed that on 22-9-1992 at about 7.30 a.m. he heard the accused calling his name, whereupon he went to the appellant and found the appellant standing outside the room. The appellant asked him to fetch a doctor saying that his wife was serious. He went to the hospital and brought Dr. Thinley to the room of the appellant. The Doctor then took the witness outside the room and told him that the wife had already died. Dr. Thinley as PW-6 corroborated the testimony of Palden Bhutia, P.W. 2.
(xiii) The thirteenth circumstance is that the appellant tried to make out the death of the victim as a case of suicide by poison. This is proved by the evidence of P.W.-12, Shri L.S. Wangyal. Shri Wangyal has deposed that on the date of the incident one person came to him and said that Shri Tenzing, the Branch Manager who was his friend wanted to see him. Thereupon the witness went to Shri Tenzing who told him that the appellant had died. Thereafter, both of them went to the house of the appellant. Appellant told them that his wife had taken poison. Then, they advised the appellant to report the matter to the police. Accordingly, the witness Wangyal drafted the report which was signed by the appellant, giving cause of death as intake of poison. The fact that this was not a case of poisoning is proved by the report of the serologist who found the tests for common poisons to be negative and also by the evidence of Dr. S.D. Sharma, Medico Legal Consultant who conducted postmortem on the body of the deceased and found as many as thirty four external injuries and seven internal injuries. All these injuries have been mentioned by the learned trial judge in his judgment and we do not consider it necessary to reproduce them. Besides, they were not referred to at the time of arguments. In this respect, it is sufficient to mention that Dr. S.D. Sharma has deposed that the injuries were anti-mortem and sufficient to cause death in the ordinary course of nature. We have absolutely no reason to differ from the evidence of the doctor. It is proved that the death occurred on account of the injuries inflicted on the deceased and not on account of any poisoning.
5. The learned Sessions Judge held that the chain of circumstances that had been established in the instant case by the prosecution was complete leading to the inference of guilt of the appellant. He held that the circumstances were of a determinative tendency unerringly pointing towards the guilt of the appellant and the circumstances taken collectively were incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against the appellant.
6. Mr. Taranga Pandit, Advocate appearing on behalf of the appellant made the following submissions in support of the appeal:
(a) The Serologist has not been examined in the case to prove his report.
(b) General Diary entries which have been proved on record are carbon copies and the original thereof have not been produced in evidence and, as such, the General Diary entries though marked exhibit A-1 were inadmissible in evidence.
(c) There is not a single eye witness to the occurrence and the case is based on circumstantial evidence which is not sufficient to bring home the charge against the accused. In support of his submission he referred to Anant Bhajangrao Kulkarni v. State of Maharashtra AIR 1993 SC 110 : 1992 Cri LJ 4027.
(d) The first version of the prosecution case is contained in the General Diary entry No. 244 showing that the death occurred on account of poisoning and the evidence is not in support of that case.
(e) FIR is not proper because it has been addressed to the District Magistrate and the investigation started before the FIR was recorded on the basis of the General Diary entry No. 244. The investigation conducted prior to the lodging of the FIR cannot be taken into consideration.
Point a)
According to the report of the Serologist, tests for common poison were found to be negative in the contents of the exhibits. The exhibits were some solid materials with liquids from stomach, intestine, liver, spleen and kidneys. It is true that the Serologist did not enter into the witness box. However, for that reason alone, his report does not become inadmissible in evidence. Section 293 (1) of the Code of Criminal Procedure 1973 provides that any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any enquiry, trial or other proceedings under the Code. Clause (f) of Sub-section (4) makes this section applicable to “the Serologist to the Government”. Sub-section (2) provides that the Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. Thus, it is open to the Court to summon and examine a Serologist as to the subject-matter of his report, but if the Serologist is not summoned and examined, his report becomes admissible under the specific provision of Sub-section (1) of Section 293 read with Clause (f) of Sub-section (4). As such, we see no merit in the submission of the learned counsel that the report of the Serologist is not admissible in evidence.
Point b)
The General Diary entries were proved by Shri S.K. Pradhan who was-posted at Gyalzing Police Station as the second Officer-in-Charge at the relevant time. He has deposed that every Police Station diary contains two duplicate pages and while writing the diary, carbon is placed between the two pages and whereas the original is sent to the concerned Superintendent of Police, the carbon copy is retained at the Police Station for the purpose of record. He has further deposed that the original of the General Diary entry may be lying with the concerned Superintendent of Police. Thus, the carbon copy on the record was prepared by the same process by which the first copy was prepared and as such, each was primary evidence of the contents of the rest within the meaning of explanation 2 to Section 62 of the Evidence Act. In this view, we get support from Prithi Chand v. State of Himachal Pradesh AIR 1989 SC 702 : 1989 Cri LJ 841. As such, we hold that the General Diary entries marked exhibit A-1 are admissible in evidence.
Point c)
The various circumstances discussed earlier leave no manner of doubt that it was the appellant who murdered his wife within the four corners of his house and he tried to mislead the police authorities by making a false complaint that the wife had died on account of poisoning. The fact that the earliest version as to the incident given by him was false does not detract him from his guilt. Rather, it supports the prosecution case that he alone was responsible for the death of his wife. The chain of circumstances which has been established on the basis of reliable evidence the credibility of which has not in any manner been impeached by cross-examination and which evidence gets support from the medical evidence that the death occurred on account of the multiple injuries inflicted upon he deceased in the house which was not occupied by anyone other than the couple, leads to the irresistible conclusion that it was only the appellant who committed the crime and leaves no doubt that the wife had not died by poisoning. We see no reason to differ from the conclusion reached by learned Sessions Judge. We do not agree with the learned counsel that the appellant gets support from Anant Bhujangrao Kulkarni v. State of Maharashtra AIR 1993 SC 110: 1992 Cri LJ 4027 where it was held that the accused could not be convicted merely on the circumstances that he was last seen in the company of the deceased and then the dead body was found near the portion of the building occupied by the accused. On the facts of that case, the Court held that for these two reasons alone, the accused could not be held responsible for the offence of murder, since these two circumstances could not be said to be inconsistent with the innocence of the accused. The instant case has no similarity to the case cited by the learned counsel. We see no merit in the submission made on behalf of the appellant.
Point d)
We see no merit in the submission that the prosecution was bound by the first version received by the police. It is true that the first version set the investigating machinery into motion. Yet, whether prosecution is to be launched or not is to depend upon the result of the investigation and when after investigation in the instant case it was found that it was the appellant who was responsible for the murder of his wife, it was open to the investigation agency to launch prosecution against the appellant and, thereafter, it was for the Court to find whether the offence with which the appellant was charged was proved against him beyond reasonable doubt and once it has been found that the guilt of the accused has been proved beyond reasonable doubt, the appellant cannot be allowed to take advantage of his own wrong by saying that the police is tied to the version earliest received by it, even though he himself was instrumental for that incorrect version. There is no merit in the submission.
Point e)
As regards the last point, the Investigating Officer, Shri P.M. Rai, PW-16 deposed that as a result of the investigation conducted by him on the basis of the General Diary entry No. 244 and after having been satisfied that the wife had died on account of the multiple injuries received by her, he prepared the FIR addressed to the District Magistrate, (P-9) and sent the original thereof to the District Magistrate and on that basis registered a formal FIR Exhibit P-10. We see nothing questionable in the conduct of the Investigating Officer. There is also no merit in the submission that that part of the investigation which had been conducted by the Investigating Officer prior to the registration of the FIR could not be relied upon by the prosecution agency. It was held by the Privy Council in AIR 1945 PC 18 : 1945 (46) Cri LJ 413 Emperor v. Nazir Ahmad.
…But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are under taken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal P.C., when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under Section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view. In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished and it has to be remembered that the report can be put in evidence when the informant is examined if it is desired to do so.
The Supreme Court held in Apren Joseph v. State of Kerala AIR 1973 SC 1 : 1973 Cri LJ 185.
11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, Cr.P.C. As observed by the Privy Council in Emperor v. Nazir Ahmad ILR 1945 Lah 1 : AIR 1945 PC 18 : 1945 (46) Cri LJ 413 the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statue provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant’s evidence in Court. But this information when recorded is the basis of the case set up by the informant.
7. There being no merit in the appeal, the same is dismissed.