Dr. M.K Sharma, J.— These two appeals arise out of a common judgment and order dated 8-11-2006 passed by the High Court of Allahabad dismissing the appeals filed by the appellants herein against their conviction and sentence under Section 302 read with Section 34 of the Penal Code, 1860 (for short “IPC”).
2. Shri Prithvi Pal Singh alias Chandra Prakash Singh, son of the deceased had lodged a report at Police Station Maharajpur, District Kanpur contending, inter alia, that on 29-7-1977 while he along with his father, Vikramaditya Singh and one Shri Jagannath Dubey were coming back to their village by Kanpur-Allahabad Passenger Train from the Court of Munsiff, Hawali, Kanpur where a litigation was pending between his father Vikramaditya Singh and Shri Ganesh Singh and others, they alighted at Rooma Halt Station for the purpose of going to their house. Further allegation was that the accused, Shri Shrawan Kumar, Shri 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 Shri Vikramaditya Singh, the deceased, whereupon the present appellants Brij Kishore and Patai @ Krishna Kumar dragged his father from the platform of the station to a place under a peepal tree whereupon Shri Shrawan Kumar and Ganesh Singh put their country-made pistols at the deceased and fired shots consequent to which Vikramaditya Singh died instantaneously.
4. On hue and cry having been made by Prithvi Pal Singh @ Chandra Prakash Singh, the informant and Shri Jagannath Dubey, Shri Iqbal, Shri Mahendra Singh, Shri 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.
5. After registering a case, investigation was conducted during the course of which all the accused persons were arrested. On completion of the investigation, a charge-sheet 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, PW 1; Jagannath Dubey, PW 3; Shri Iqbal Singh, PW 4. Shri Girja Shanker Yadav, the Sub-Inspector who had started the investigation was examined as PW 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 CrPC and on completion of the trial, the arguments of the counsel appearing for the parties were heard.
6. The learned trial court, after appreciating the evidence on record passed a judgment and order dated 12-3-1980 finding all the accused persons guilty of the charge under Section 302 read with Section 34 IPC and convicted all of them under the aforesaid sections. By a separate order, they were sentenced to undergo imprisonment for life. 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 and Patai @ Krishna Kumar, respectively.
7. The High Court after considering the entire record upheld the order of conviction and sentence and dismissed all the appeals. Being aggrieved by the aforesaid judgment and order passed by the High Court, the accused Ganesh Singh and Shri 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.
8. 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, Shri Patai and Brij Kishore.
9. 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 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 preconceived or preconcerted meeting of minds and therefore their conviction under Section 302 read with Section 34 IPC is illegal.
10. 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 PW 1 at about 5.15 p.m
11. The counsel for the appellant forcefully contended before us that since the said first information report indicates that there was no eyewitness to the occurrence, framing and calling of the three eyewitnesses by the prosecution could not and should not have been believed and hence the prosecution story should fail. 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 Penal Code.
12. We have considered the aforesaid submission in the light of which we have carefully scrutinised 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 analysed 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.
13. The aforesaid report given by the Assistant Station Master appears to be a telephonic message which was sent by the cabin man at Rooma Halt Station to GRP. The text of the message reads as follows:
“Message at 1620 hours. One passenger was shot dead at Rooma cabin got down by 2 KA passenger P-1 proved and arranged disposal of dead body.”
It therefore appears that the aforesaid message was sent by the cabin man through the Assistant Station Master to GRP which was received at 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. Shri O.N Pandey 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 Maharajpur Police Station, but he has admitted that he had sent the wireless message through the control room.
15. There is however nothing on record to indicate that the aforesaid report was sent to Maharajpur Police Station immediately and the same was received at Police Station Maharajpur prior to the lodging of the report given by PW 1. Besides, the aforesaid alleged report given by the 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. 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 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.
16. 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 cognizable offence has been committed. A cryptic message recording an occurrence cannot be termed as a first information report.
17. In Ramsinh Bavaji Jadeja v. State of Gujarat (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 the 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 details about the participants, shall be deemed to be a statement made by a person to the police officer ‘in the course of an 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.”
18. In the present case, however, there is no proof regarding the fact that the said information was sent to the police at Maharajpur and that it was received and therefore, the said information cannot be said to be the 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 PW 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.
19. 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 29-7-1977 not only the deceased was travelling by the aforesaid train but the two other persons, namely, PW 1 Prithvi Pal Singh, the informant and PW 3 Shri Jagannath Dubey, also travelled with him in the same train and all the three got down at Rooma Halt Railway Station where the incident had taken place. Therefore, there is no reasonable ground to doubt that PW 1, the informant and PW 3 are not the 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.
20. PW 4 Iqbal Singh was also a fellow traveller in the same train who had also got down at 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 PW 4 also at the time and at the place of occurrence.
21. The evidence adduced by PW 1 and PW 3 clearly corroborates 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.
22. The evidence adduced thus clearly establishes that all the four accused persons carried weapons with them and at the exhortation of Shri 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 other two accused persons, namely, Shri Shrawan Kumar and Shri Ganesh Singh. A preconcerted mind and a common intention to commit the offence are apparent on the face of the record.
23. Section 33 IPC defines the expression “act” in the following words:
“33. ‘Act’, ‘omission’.—The word ‘act’ denotes as well a series of acts as a single act:…”
Section 34, on the other hand, lays down that:
“34. Acts done by several persons in furtherance of common intention.—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.”
24. 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 Shri 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 the deceased. Therefore, the contention of the counsel appearing for the appellants stands rejected.
25. It was also submitted by one of the counsel that the first information report submitted by PW 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.
26. On the other hand PW 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 handwriting 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 handwriting and there is no evidence to impeach or doubt the said statement of the witness. Consequently, the aforesaid submission is also found to be without any merit.
27. 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.
28. The appeals, therefore, have no merit and are dismissed. The records may be transmitted immediately.