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PETITIONER: BALESHWAR MANDAL AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT:       08/08/1997

BENCH: M.M. PUNCHHI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                        J U D G M E NT V.N.KHARE, J.      By this  appeal, the  appellants, who  have been  found quilty for  the offence under- Section 302 read with Section 34 of the Indian Penal Code, question the correctness of the judgment rendered  by the  High Court  of Patna,  dismissing their appeals  and upholding  the judgment of the Additional Sessions Judge,  Bhagalpur in  Sessions Trial Case No.338 of 1982.      The prosecution  case which  has  given  rise  to  this appeal is,  that on  December 3, 1981 at about 2.30 p.m. one Rudan Mandal  (PW.11), while  getting his  work done  in his field heard  the cry  of his  nephew Natheshwar Mandal which was coming  from the  field of  one Ekbal Mandal situated to the west of his field.  On hearing the cry, Rudan Mandal ran towards that  direction raising  alarm,  when  Rudan  Mandal arrived near the place o occurrence he witnessed the accused Dasrath Mandal  and Baleshwar Mandal assaulting the deceased Natheshwar Mandal with ’Dabiya’ and ’Kulhari’, respectively. On alarm  being raised,  the  villagers  from  neighbourhood arrived and  thereafter both  the accused  managed to escape from the  place of  occurrence towards  north.  Further case was that  Kashi  Mandal(PW1),  Tarni  Mandal(PW.4),  Kailash Mandal(PW.2), Tatar Mandal(PW.10) and Biddi Mandal(PW.3) saw the accused  cutting the  deceased -  Natheshwar Mandal with Dabiya and  Kulhair, as  a result of which Natheshwar Mandal died  and   accused  fleeing  away  after  they  were  being identified.I.O. Rajnandan Singh (PW.15) arrived at the place of occurrence  at about  4.30  p.m.  when  he  recorded  the Farbdbayan of  PW.11 -  Rudan  mandal.    The  investigating Officer seized the blood stained clothes and earths of place of occurrence  and prepared the inquest report and site plan and thereafter  recorded the  statements of  witnesses.  The Farbdbayan was  sent to  the Police  Station through special messenger  and   on  the  basis  of  Farbdbayan,  the  First Information Report was lodged next day.      The Court of Session having found both the accused have committed murder  of Natheswar  Mandal, sontonced  them  for imprisonment  of   life.     The  appeal  preferred  by  the appellants was dismissed by the High Court.

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    In  this   appeal,  it  was  urged  on  behalf  of  the appellants that due to the serious lapses on the part of the Investigating  officer(PW.15)   in  not  sending  the  blood stained clothes  and earths  seized from place of occurrence for chemical examination, inasmuch as in not noting down the time of  examination of  the  witnesses  in  the  diary  and further non-examining  the  appellants,  the  trial  of  the appellant resulting in conviction of appellants was vitiated and the appeal is to be allowed only on this ground.      Under Section  172 Cr. P.C. read with Rule 164 of Bihar Police   Manual   dealing   with   the   investigation,   an Investigating  Officer   investigating  a   crime  is  under obligation to  record all  the da  to  day  proceedings  and information in  his case  diary, and also record the time at which the  information was received and the place visited by him,  besides   the  preparation  of  site  plan  and  other documents.   The investigating  Officer is  also required to send blood  stained clothes  and earth seized from the place of occurrence for chemical examination.  Failure on the part of the  investigating Officer  to comply with the provisions of Section  172 Cr.P.C.  is a  serious  lapse  on  his  part resulting in  diminishing the  value and  credibility of his investigation.   In  this  case  the  Investigating  Officer neither entered  the time  of recording of the statements of the witnesses in the Diary nor did he send the blood stained clothes and  earth seized  from the  place of occurrence for examination by  a serologist.   High  Court  also  adversely commented upon  the lapses  on the part of the Investigating Officer in  not complying  with the  provisions of  Code  of Criminal Procedure.   We,  therefore, take it that, in fact, there was  serious lapse  on the  part of  the Investigation Officer in  not observing the mandate of Section 172 Cr.P.C. while investigating  the case  which has  given rise to this appeal.   But the question that arises for consideration is, has any prejudice been caused to the accused in the trial by non-observance of  rule by  the Investigating  Officer?  The evidence  on  record  before  the  Sessions  Court  and  the appellate Court  does not show that due to the lapses on the part of  the Investigating  Officer in not sending the blood stained  clothes   and  earth   seized  from  the  place  of occurrence for  chemical examination  and further not noting down the time of recording the statement of the witnesses in he Diary has resulted in any prejudice to the defence of the accused.   In the  present case, the place of occurrence and the identity of the deceased are not disputed.  Further, the testimony of  the eye witnesses which is consistent and does not suffer  from infirmity,  was believed by both the courts below.   Once the  eye witnesses are believed and the courts come to  the  conclusion  that  the  testimony  of  the  eye witnesses is  trustworthy, the  lapse on  the  part  of  the Investigating Officer  in not  observing the  provisions  of Section 172  Cr.P.C. unless  some prejudice is shown to have been caused  to the  accused, will not affect the finding of guilt recorded  by the  Court. Neither before the High Court nor before this Court, it was pointed out in what manner the accused was prejudiced by non-observance of the provision of Section 172 Cr.P.C. and the rules framed in this regard.  We are, therefore,  of opinion that judgments of Court below do not  suffer   on  account   of  omission   on  the  part  of Investigating Officer  in not  sending the earth seized from the place  of occurrence  for Chemical examination or in not entering the  time of  recording the statements of witnesses in the Diary.      It was  then urged  that there was a considerable delay in lodging  the F.I.R and the same having not been explained

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shows that  the accused persons had been falsely implicated. In the  present case, the occurrence took place at 2.30 p.m. on 3.12.81 and Fardbeyan of PW.11, Rudan Mandal was recorded at about  4.30 p.m.  at the  place of  occurrence just   two hours after  the occurrence  took place.  The Fardbeyan gave complete and  full account of the occurrence and the role of the accused  in committing  the crime.   it  has come in the evidence that  the Investigating  Officer  reached  Khairpur Bahiyar along  with police  force  at  4.30  p.m.  where  he recorded  the   Fardbeyan   of   the   informant   -   Rudan Mandal(PW.11)   in    the   presence    of   the   two   eye witnesses(Ex.5).     The  Investigating  Officer  thereafter prepared the inquest report and the site plan and thereafter continued to  record the  statements of  the witnesses  till 10.30 p.m.  and the  Fardbeyan was  sent to Naugachis Police Station for  registration through  a special messenger.  The contents of  the F.I.R.  were exactly  the same  as  in  the Fardbeyan.   There was  no discrepancy between the Fardbeyan and the  F.i.R. The very fact that the occurrence took place at 2.30  p.m. on  3.12.81 and the Fardbeyan recorded at 4.30 p.m.  itself  shows  the  promptness  on  the  part  of  the prosecution  in   setting  the   criminal  law   in  motion. Therefore, the contention of the appellants that there was a delay in  lodging the  F.I.R. which  makes  the  prosecution story unbelievable has to be rejected.      Lastly, It  was  urged  that  in  the  inquest  report, prepared by  the Investigating  Officer after  the Fardbeyan was recorded  the names  of the  accused  persons  were  not mentioned therein and, and such, it shows that the time when the inquest  report was  prepared it was not known as to who were the  accused persons  and the  Fardbeyan was  drawn  up later on  at the  instance of  the prosecution  witnesses in which the  accused were  falsely implicated.   This argument was neither  raised during  the trial  nor before  the  High Court.   The inquest  report prepared  by the  Investigating Officer finds  place in  the paper  book at  page 47.   This inquest report indicates the injuries found on the dead body of the  deceased duly  witnessed by two witnesses.  There is no column  in  the  said  inquest  which  the  investigating Officer is  required to  mentioned the names of accused.  It may be  the said  report is not a complete document.  It is, therefore, not  safe to  entertain  this  argument  in  this appeal specially  when no  such argument was advanced during the trial  or before the High Court.  We accordingly refrain ourselves from going into this question raised for the first time in this appeal.      For the foregoing reasons, we do not find  any merit in this appeal.  The appeal is accordingly dismissed.