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PETITIONER: BALESHWAR RAI AND OTHERS

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 26/04/1962

BENCH:

ACT: Criminal Procedure-Statement made to investigating  officer- If  and  when  barred from being  proved  in  evidence--"The period  of investigation" and "Court  of  investigation"--If Synonymous-Code  of Criminal Procedure (Act V of  1898),  s. 162.

HEADNOTE: Section  162  of the Code of Criminal  Procedure  only  bare proof  of statement made to an investigating officer  during the  course  of investigation.  It does not say  that  every statement made during the period of investigation is  barred from  being  proved in evidence.  For a  statement  to  come within  the  purview of s. 162, it must not merely  be  made during the period of investigation but also in the course of investigation.     The   two   things,   "the   period    of investigation"   and  "Course  of  investigation"  are   not synonymous.  Section 162 is aimed at statements recorded  by a Police Officer while investigating into an offence.   This is clear from the opening words s. 162.  They speak only  of statement  made  to a police officer during  the  course  of investigation.   This implies that the statement sought   to be excluded from evidence must be ascribable to the  enquiry conducted  by the investigating office and not one which  is de-hors the enquiry.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals Nos.  176 to 178 of 1961. Appeals  by special leave from the judgment and order  dated August 10, 1961, of the Patna High Court in Cr.  A. No.  152 of 1961 and Death Reference No. 3 of 1961. Sushil Kumar Jha, Subodh Kumar Jha and B.   C. Prashad, for the appellants. C. K. Daphtary,       Solicitor General of India and S. P. Verma, for the respondents. 434 1962.  April 26.  The Judgment of the Court was delivered by :- MUDHOLKAR.,  J.-This judgment will govern  Criminal  Appeals nos. 177 and 178 also.  All these three appeals arise out of the  same  trial.  The learned  Additional  Sessions  Judge, Monghyr  who  conducted the trial convicted  the  appellant, Ramchandra Chaudhary who is appellant in Criminal Appeal No. 177  of 1961 for an offence under s. 302 Indian Penal  Code. He  also  convicted  Baleshwar  Rai  alias  Nepali   Master, appellant  in this appeal and Jogendra Chaudhary,  appellant

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in  Criminal Appeal No. 178 of 1961 of an offence  under  s. 302  read with s. 34, Indian Penal Code.  He sentenced  each of the three to death.  Their appeals were dismissed by  the High  Court of Patna, and sentences of death passed  against them  were confirmed by it.  They have come up  before  this Court by special leave. The prosecution story is briefly as follows On  March 17, 1959 at about 8.00 p.m. the chaukidars of  the village  Fateha  had  assembled,. as usual,  in  the  ’crime centre’  of  the village.  Their names  are  Anandi  Paswan, (deceased),  Misri Paswan (P.W.2), Baleshwar Paswan  (P.W.3) and  Narain  Paswan.  Anandi Paswan and  Misri  Paswan  were lying  on  a  chouki.  Anandi Paswan had  a  ’bhala’  and  a muretha’ while Misri Paswan had a ’pharsa’ and a  ’muretha’. These weapons is well as the shirt of ,he deceased were kept on  the chouki.  The other two choukidars were lying on  the ground.  The crime centre is housed in the ’dalan’ of Tilak. Chaudhary (P.W.6). One other person, Srilal Chaudhary, (P.W. 7), the brother of Tilak Chaudhary, was also lying there  on the  khatia  on the north-east of the said ’dalan’.   In  an adjacent room were P.W.11 Nathuni Chaudhary alias Durga  Das and P.W.12 Ramchander Jha.   435 According  to  the  prosecution a little  before  9.00  p.m. someone  from  outside called out  "Darogaji".   On  hearing this,  the deceased Anandi Paswan and Misri Paswan  got  up. It  was a moonlit night and they saw  Ramchander  Chaudhary, Jogendra Chaudhary and another person, who was later identi- fied to be Nepali Master, standing closeby.  As soon as they went  towards the appellants, Jogendra Chaudhary and  Nepali Master caught the deceased while Ramchandra Chaudhary caught Misri Paswan.  Both Ramchandra Chaudhary and Jogendra  Chau- dhary  had  guns  with them which were  slung  across  their shoulders.   These three persons then took the deceased  and Misri Paswan to the road to the East of the ’dalan’, running north  to  south,  and  proceeded  southward.   Neither  the deceased nor Misri Paswan raised any cry, apparently because they  were  threatened that if they did so,  they  would  be shot.  When this party reached the place to the west of  one Peare Sao’s house and to the east of the house of  Rampratap Tanti  (P.W. 5). the deceased called for  Rampratap’s  help, and freeing himself from the clutches of his captors started running way westward., Upon this Ramehandra Chaudhary let go the  hand of Misri Paswan and fired at the deceased.   Misri Paswan then ran into the house of Peare Sao and took shelter there.   While  entering that house, he heard a  second  gun shot.   His  presence  in the  house  was  detected  by.Mst. Ajo(P.W. 8), the wife. of Peare Sao who forced him to  leave the  house.   Thereafter  he  came out  into  the  lane  and concealed  himself behind the door.  After the moon had  set and  it  became dark, he went to the house of  Fakir  Paswan (P.W.  4), which is to the east of the house of  Peare  Sao, and narrated the occurrence to him.  He mentioned Ramchandra and  Jogendra as the two persons who has taken part  in  the incident.  In the early hours of the morning he went to  the place  where gun shots were fired, and found Anandi  Paswan, chaukidar lying dead in a 436 ditch  by the side of the road, face downwards.  He  noticed that  Anandi Paswan had received two gun shot wounds on  his back.  Thereafter he went home     and  contacted the  other chaukidar, Narain Paswan      and   Baleswar   Paswan.    He placed them in charge of the dead body and then went to  the police  station along with Ramdeo, son of the deceased.   He lodged  the first information report at the police  station.

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After  recording  it,  the junior  Sub-Inspector  of  police commenced investigation and after completing it submitted  a charge-sheet against the three appellants on March 15, 1959. It is the prosecution case that the appellants are  "veteran criminals"  and  the chaukidars used to report  about  their movements  and that this was the motive for the murder.   It was   further  said  that  the  deceased  had   helped   the Dalsingsarai  police in arresting one Motia Mushar, who  was the  ploughman  of the appellant Ramchandra,  in  a  dacoity case. All  the  appellants  denied  having  participated  in   the incident.   The  defence  is  that a  false  case  has  been concocted by the police. The  main evidence against the appellant is that of P.W.  2, Misri  Paswan.  He has actually named  Ramchandra  Chaudhary and  Jogendra  Chandhary in the  first  information  report. Regarding  the  third  appellant, he  stated  that  ’he  was unknown.   Ramchandra and Jogendra have been identified  not only  by Misri Paswan, but also by five other  wit.  nesses, Narain  Paswan, Rampratap Tanti, Srilal  Chaudhary,  Nathuni Chaudhary  and Ramchander Jha.  All these, five persons  had an  opportunity  to see the appellants because,  it  may  be recalled,  some of them were in the ’dalan’ and some in  the adjacent room when the appellants came near there and one of them cried out "Darogaji".  Their evidence has been accepted  437 as true and adequate not only by the learned Sessions  Judge who had an opportunity to see and hear the witnesses  depose but  also  by  the High Court.   Their  evidence  cannot  be reappraised in their appeals by special leave. The  learned  counsel,  however,  said that  in  so  far  as Jogendra Chaudhary is concerned, common intention to  commit murder  had  not been established. The existence  of  common intention has always to be inferred from facts.  Here it has been   established  that  all  the  three  appellants   came together.   Two of them, Ramchandra and Jogendra  had  guns, with   them.   The  prosecution  has  established   to   the satisfaction  of the learned Additional Sessions  Judge  and the High Court that as Anandi Paswan was giving  information to the police about the movements of the appellants and  had also  taken  the  major part in  getting  one  Motia  Mushar arrested  in a dacoity case, Ramchandra nursed a’  grievance against  Anandi.  The inference, therefore, must be that  he had  come  with the intention of taking  revenge  on  Anandi Paswan  by  killing  him and the other  two  appellants  who accompanied  him shared that intention.  As the  High  Court has  pointed out, this is made clearer by the  statement  of Misri Paswan to the effect that Ramchandra said at the  time of  the  incident that ’his (servant) Motia was  taken  away forcibly and then Jogendra asked the deceased sarcastically, "Where  is  your  military today ?"  In  the  circumstances, therefore,  there can he no doubt that common  intention  to commit  murder  was  established not only  with  respect  to Jogendra but also with respect to Nepali Master who was  all along with them. On  behalf  of Nepali Master the learned  counsel  contended that  he  has  been identified at  the  test  identification parade  by one witness only and that the other  persons  did not  turn  up for identification and, therefore, it  is  not legally permissible to base      438 the identification by only one person.  It is sufficient  to say  that even the evidence of a single witness can  sustain the  conviction of an accused person if the court which  saw and heard him depose     regards him as a witness of  truth.

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However,  in this case, Nepali Master was identified not  by one  witness  only but by two witnesses (P.   W.  7)  Srilal Choudhary  and  (P.  W. 9) Dukhi Mahto.  It  was  said  that Srilal  is  an  old man of 75 and has a  weak  eyesight  and therefore his evidence should be kept out of account.  He is evidence has been believed by the learned Sessions Judge  as well as by the High Court and we cannot reassess it. It was contended before the High Court and is also contended before us that as the test identification was held long time after his arrest, the evidence of these two witnesses  could not  be believed. This circumstance was also  considered  by the High Court and it observed :               "The contention is attractive; but, in view of               Ex. 6, it is difficult to accept the same". Exhibit  6 is an anonymous letter written to  Senior.   Sub- Inspector, Kashi Nath (P.  W. 22), of which the only portion which has been admitted in evidence reads thus:               "The rascal Anandia Choukidar spoiled the life               of that poor Mushar by instigating the S. 1 of               Police  of  Dalsingsarai and  subsequently  he               also spied against us for nothing". This document along with ex. 3, dated June 9, 1959, which is admittedly in the handwriting of Nepali Master, was sent  to the Government handwriting expert.  Both the documents  were examined by him.  In his evidence he has stated.               "The  Board of Experts consisting  of  myself,               Chatterjee and Srivastava examined                                    439               these independently and our unanimous  opinion               was that Ex. 3, tallied with disputed writings               (Ext. 6)." This  being so, the admission contained in Ext. 6 as to  the motive  is  clearly admissible under s. 21 of  the  Evidence Act.   The High Court was, therefore, right in holding  that Ext. 6 afforded corroboration to the evidence of (P.  W.  7) Srilal Chaudhary and (P. W. 9) Dukhi Mahto. It  is  then  contended that Ex. 6 is hit by  s.162  of  the Criminal Procedure Code because it was received by the  Sub- Inspector  during the course of the investigation.   Section 162  of  the  Criminal Procedure Code  only  bars  proof  of statements  made  to  an investigating  officer  during  the course  of  investigation.  Section 162 does  not  say  that every  statement made during the period of investigation  is barred  from being proved in evidence.  For a  statement  to come  within  the purview of s. 162, it must not  merely  be made  during  the period of investigation but  also  in  the course  of  investigation.  The two things,  that  is,  "the period of investigation" and "’course of investigation’  are not synonymous.  Section 162 is aimed at statements recorded by  a  police officer while investigating into  an  offence. This  is  clear from the opening words s. 162.   They  speak only  of  statements  made to a police  officer  during  the course  of investigation.  This implies that  the  statement sought  to be excluded from evidence must be  ascribable  to the  enquiry conducted by the investigating officer and  not one which is de hors the enquiry.  A communication like Ext. 6  will  not fall within the ambit of such  statements.   In this  view we hold that the document in question is not  hit by s. 162 of the Criminal Procedure Code and the High  Court was right in admitting it in evidence. There  is  no  substance  in  the  appeals  and  they   are, therefore, dismissed. Appeal dismissed. 440

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