M.K Mukherjee, J.— Jagdish Narain, Appellant 1, along with his two sons Avdhesh and Avinash and two friends Rameshwar Dayal, Appellant 2, and Surya Prakash was tried by the Additional Sessions Judge, Pilibhit, for rioting and murder of his stepbrother Jitendra Nath. The trial ended in an acquittal; and aggrieved thereby the State preferred an appeal. During the pendency of the appeal Avdhesh and Surya Prakash died and consequently their appeal abated. As regards others, the High Court affirmed the acquittal of Avinash but reversed that of the two appellants (the respondents therein) and convicted and sentenced them under Sections 148 and 302 with Section 149 IPC. The above order of conviction and sentence is under challenge in this appeal preferred under Section 379 CrPC.

2. Shorn of details the prosecution case is that on 11-2-1977 the deceased, his son Achal Kumar (PW 1) and his servant Devi Ram (PW 2) were carrying sugarcane in a bullock cart from their Village Mar to a mill in Bilsanda for getting the same weighed. While PWs 1 and 2 were in the bullock cart with the latter driving it, the deceased was following the cart on foot. At or about 2 p.m when the cart had, after crossing a culvert situated on the kachha road, reached near the field of one Ram Autar, the five accused persons came out from behind a heap of straw armed with deadly weapons including guns. Then Appellant 1 fired a shot at Jitendra Nath felling him down. The gun which the deceased was carrying also fell down. On the exhortation of Avinash and Avdhesh, Appellant 2 also fired a shot hitting Jitendra Nath. Thereafter the miscreants fled away along with the gun of the deceased.

3. Achal Kumar (PW 1) then rushed to Bilsanda Police Station, which was at a distance of one mile, and lodged an information about the incident. On that information a case was registered against the accused persons and Inspector D.R Thapalyal (PW 6) took up investigation. He went to the scene of occurrence accompanied by other police personnel and after holding inquest upon the dead body sent it for post-mortem examination. He prepared a site plan and seized some bloodstained earth, two pellets and one pair of the shoes from the site. On completion of investigation he submitted a charge-sheet against the accused persons and in due course the case was committed to the Court of Session.

4. The accused persons pleaded not guilty to the charges levelled against them and their defence was that they had been falsely implicated.

5. To sustain the charges levelled against the accused persons the prosecution relied upon the ocular accounts of Achal Kumar (PW 1) and Devi Ram (PW 2), who were allegedly in the cart, and Daya Ram (PW 3) who claimed that he was passing along the road at the material time. Besides, the prosecution examined the doctor, who held post-mortem examination upon the deceased, the Investigating Officer and some other formal witnesses. The reasons which weighed with the trial court to disbelieve the evidence of the eye-witnesses and, for that matter the prosecution case, are as under:

(i) The testimonies of the eyewitnesses stood contradicted by their earlier statements recorded under Section 161 CrPC;

(ii) Though, according to the eyewitnesses, the deceased was attacked while going along the sait (road) his dead body was found in the field (of Ram Autar) and no explanation was offered by the prosecution to reconcile the anomaly;

(iii) Even though the Investigating Officer admitted that he knew from the very beginning about the importance of the place from where the shots were fired, he did not indicate that place in the site plan he prepared and such failure made the investigation faulty and suspicious;

(iv) No attempt was made by the Investigating Officer to ascertain to whom the pair of shoes found near the dead body belonged; and

(v) A number of documents were filed on behalf of the accused persons to show that the deceased had enmity with other persons also and, therefore, it could not be said that they were the only persons who were likely to commit the murder of Jitendra Nath, more so when he was armed with a gun.

6. In reversing the order of acquittal and passing the impugned order the High Court first reappraised the evidence in the light of the above findings and demonstrated that each of them was perverse. It then considered the evidence of the three eyewitnesses to ascertain whether it could be safely relied upon to base a conviction. On such consideration the High Court found that PWs 1 and 2 were the most probable and natural witnesses and that their evidence was creditworthy. The High Court, however, left the evidence of PW 3 out of consideration as, according to it, he was not an independent witness. The High Court further found that the evidence of PW 1 stood fully corroborated by the FIR which was lodged within half an hour of the incident and that the evidence of both PWs 1 and 2 stood corroborated by the medical evidence.

7. This being a statutory appeal we have, for ourselves, carefully perused the evidence adduced by the prosecution (no evidence was led by the defence) particularly that of PWs 1 and 2 keeping in view the judgments of the learned courts below; and we are constrained to say that none of the grounds canvassed by the trial court to acquit the appellants can be sustained. The contradictions which persuaded the trial court to disbelieve the eyewitnesses related to their omissions to make certain statements before the Investigating Officer, which they made before the court. On perusal thereof we find that the omissions were so minor and insignificant that they did not amount to contradictions at all. To eschew prolixity of this judgment we, however, refrain from detailing them except referring to one, to illustrate the entirely wrong approach of the trial court in this regard. PW 2 testified that while driving the cart he was sitting on the bundles of sugarcane but in his statement recorded under Section 161 CrPC he did not state that he was so seated. Indeed, it is only for this minor omission that the trial court found the evidence of PW 2 wholly unreliable.

8. As regards the comment of the trial court that the prosecution made no attempt to dispel the anomaly about the place where the deceased was attacked and his dead body was found, we are in complete agreement with the observations of the High Court that the above comment was the outcome of non-consideration of the evidence. PW 1 testified that while the cart was proceeding on the kachha road and it had reached the place where the road turned towards the east, his father moved on to the pagdandi, (hilly circuitous track) which passes through the field of Ram Autar. According to the evidence of PW 6, which remained uncontroverted, the dead body of Jitendra was found lying near the pagdandi and he held inquest there. The evidence of the prosecution witnesses thus clearly proves that Jitendra Nath met with his death at the place where his dead body was lying. The finding of the trial court in this regard must therefore be said to be perverse.

9. In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former's evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sic Evidence Act). However such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses it could not have been admitted in evidence being hit by Section 162 CrPC. The law on this subject has been succinctly laid down by a three-Judge Bench of this Court in Tori Singh v. State of U.P AIR 1962 SC 399, (1962) 1 Cri LJ 469, (1962) 3 SCR 580 In that case it was contended on behalf of the appellant therein that if one looked at the sketch map, on which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention this Court observed, inter alia:

“… the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation.”

(emphasis supplied)

10. While on this point, it will be pertinent to mention that if in a given case the site plan is prepared by a draftsman — and not by the Investigating Officer — entries therein regarding the place from where shots were fired or other details derived from other witnesses would be admissible as corroborative evidence as has been observed by this Court in Tori Singh case AIR 1962 SC 399, (1962) 1 Cri LJ 469, (1962) 3 SCR 580 in the following passage:

“This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of offence, the draftsman put down the places in the map, in Santa Singh v. State of Punjab AIR 1956 SC 526, 1956 Cri LJ 930. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by Section 162 of the Code of Criminal Procedure.”

(emphasis supplied)

11. The trial court ought not to have also made much out of the failure on the part of the Investigating Officer to find out to whom the pair of shoes found near the dead body belonged for the prosecution rested its case upon eyewitnesses and not circumstantial evidence. If the prosecution intended to prove the accusation levelled against the appellants by circumstantial evidence, then proof of the circumstance that the shoes belonged to one of them would certainly have been incriminating but when the prosecution rested its case upon the evidence of the eyewitnesses that question was of no such moment. In any event, the lacunae as pointed out by the trial court could not have in any way impaired the evidence of the eyewitnesses nor affected the prosecution case, as rightly observed by the High Court.

12. The last reason given by the trial court to disbelieve the prosecution case in the context of the fact that the deceased had enmity with others is absurd for such a plea would have been available to anyone who might have been arraigned for the murder. The High Court, was therefore fully justified in observing that the deceased might have enmity with others but the question as to who had committed the murder was to be answered by the court on the basis of the evidence adduced.

13. Coming now to the evidence on record, we find that both PWs 1 and 2 were the most probable witnesses, as they were accompanying the deceased at the material time and that in spite of a detailed searching cross-examination nothing could be elicited by the defence to discredit or contradict them. Besides, we find the FIR that PW 1 promptly lodged within half an hour of the incident, fully corroborates PW 1. The evidence of the doctor (PW 4), who held autopsy and found two gunshot wounds on the person of the deceased also corroborates the evidence of the above two eyewitnesses. We are, therefore, in agreement with the High Court that the prosecution succeeded in proving that owing to the two shots fired by the appellants Jitendra Nath met with his death. The High Court, however, was not legally justified in convicting the appellants under Sections 148 and 149/302 IPC for consequent upon the order of acquittal recorded by it in favour of Avdhesh, Sections 148 and 149 IPC could not have any manner of application — it being the positive case of the prosecution that only the five arraigned were the miscreants. Since, however, the manner in which the incident took place clearly indicates that the appellants shared the common intention of committing the murder of Jitendra Nath they are liable for conviction for the murder with the aid of Section 34 IPC.

14. On the conclusions as above we set aside the conviction and sentence of the appellants under Section 148 IPC; and alter their conviction under Sections 302/149 to 302/34 IPC but maintain the sentence of imprisonment for life imposed for the former. With the above modifications the appeal is dismissed.