REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINIAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1718 OF 2007

PATAI @ KRISHNA KUMAR       …APPELLANT    

VERSUS

STATE OF U.P.       …RESPONDENT

    WITH

CRIMINAL APPEAL NO. 1719 OF 2007

J U D G M E N T

Dr. Mukundakam Sharma

1. These  two appeals  arise  out  of  a  common judgment  and  

order  dated  08.11.2006  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 Indian Penal Code (for short  

the “IPC”).

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2. Shri Prithvi Pal Singh alias Chandra Prakash Singh, son of  

the  deceased  had  lodged  a  report  at  the  Police  Station  

Maharajpur, District Kanpur contending, inter alia, that on  

29.07.1977  while  he  alongwith  his  father,  Vikramaditya  

Singh and one Sri Jagannath Dubey were coming back to  

their village by Kanpur Allahabad Passenger Train from the  

Court  of  Munsif  Hawali,  Kanpur  where  a  litigation  was  

pending  between  his  father  Vikramaditya  Singh  and  Sri  

Ganesh Singh and others, they alighted at the Rooma Halt  

Station  for  the  purpose  of  going  to  their  house.  Further  

allegation was that  the  accused Sri  Shrawan Kumar,  Sri  

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  Sri  Vikramaditya  Singh,  the  

deceased,  whereupon  the  present  appellants  Brij  Kishore  

and Patai  @ Krishna Kumar dragged his  father  from the  

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platform  of  the  station  to  a  place  under  a  Peepal tree  

whereupon Sri Shrawan Kumar and Ganesh Singh put their  

country  made  pistols  at  the  deceased  and  fired  shots  

consequent  to  which  Vikramaditya  Singh  died  

instantaneously.   On  hue  and cry  having  been made  by  

Prithvi Pal Singh @ Chandra Prakash Singh - the informant  

and Sri Jagannath Dubey, Sri Iqbal, Sri Mahendra Singh,  

Sri 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.    

4. After registering a case, investigation was conducted during  

the course of which all the accused persons were arrested.  

On completion of the investigation, a chargesheet 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, P.W. 1, Jagannath Dubey, P.W. 3, Sri Iqbal Singh,  

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P.W.  4.  Sri  Girja  Shanker  Yadav,  the  Sub-Inspector  who  

had started the investigation was examined as P.W. 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 of the  

CrPC and on completion of the trial, the arguments of the  

counsel appearing for the parties were heard.     

5. The learned trial Court, after appreciating the evidence on  

record  passed  a  judgment  and  order  dated  12.03.1980  

finding all the accused persons guilty of the charge under  

Section 302 read with Section 34 of the IPC and convicted  

all  of  them under  the  aforesaid  sections.   By  a  separate  

order,  they  were  sentenced  to  undergo  imprisonment  for  

life.

6. 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 & Patai @ Krishna Kumar  

respectively.  The  High  Court  after  considering  the  entire  

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record  upheld  the  order  of  conviction  and  sentence  and  

dismissed all the appeals.    

7. Being aggrieved by the aforesaid judgment and order passed  

by the High Court, the accused Ganesh Singh and Sri 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.   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, Sri Patai and Brij Kishore.

8. 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  

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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 pre-conceived or pre-

concerted meeting of minds and therefore their conviction  

under Section 302 read with Section 34 IPC is illegal.

9. 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 P.W. 1 at about 5.15 p.m.  

The counsel for the appellant forcefully contended before us  

that  since the said First Information Report indicates that  

there  was no eye-witness to the occurrence,  framing and  

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calling of the three eye-witnesses by the prosecution could  

not  and  should  not  have  been  believed  and  hence  the  

prosecution story should fail.     

10.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 Indian Penal Code.

11.We have considered the aforesaid submission in the light of  

which  we  have  carefully  scrutinized  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  analyzed  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.     

12.The aforesaid report given by the Assistant Station Master  

appears to be a telephonic message which was sent by the  

Cabin man at the Rooma Halt Station to GRP.    The text of  

the message reads as follows: -

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“Message at 16.20 hrs.  One passenger was   shot dead at Roome cabin got down by 2 KA  passenger  p1 proved and arranged disposal   of dead body.”

13.It therefore appears that the aforesaid message was sent by  

the Cabin man through the Assistant Station Master to the  

GRP which was received at the 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.He 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 the Maharajpur Police Station, but he has admitted that  

he had sent the wireless message through the control room.  

There  is  however  nothing  on  record  to  indicate  that  the  

aforesaid report was sent to the Maharajpur Police Station  

immediately and the same was received at the Police Station  

Maharajpur prior to the lodging of the report given by P.W.  

1.    Besides,  the  aforesaid  alleged  report  given  by  the  

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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.    

15.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 the  

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.  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  

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cognizable offence has been committed. A cryptic message  

recording  an  occurrence  cannot  be  termed  as  a  First  

Information Report.   

16.In Ramsinh Bavaji Jadeja v. State (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 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  about  the  participants,  shall  be  deemed to be a statement made by a person to the   police officer “in the course of 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……………………………………….”.  

17.In the present case, however, there is no proof regarding  

the fact that the said information was sent to the Police at  

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Maharajpur and that it was received and therefore, the said  

information cannot be said to be 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 P.W. 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.

18.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. 29.07.1977 not only  

the deceased was travelling by the aforesaid train but the  

two other  persons namely,  P.W.  1,  Prithvi  Pal  Singh,  the  

informant and P.W. 3 Sri Jagannath Dubey, also travelled  

with him  in the same train and all the three got down at  

the  Rooma  Halt  Railway  Station  where  the  incident  had  

taken place.   Therefore, there is no reasonable ground to  

doubt that P.W. 1, the informant and P.W. 3 are not the  

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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.  P.W. 4,  

Iqbal Singh was also a fellow traveller in the same train who  

had also  got  down at  the  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 P.W.  

4  also  at  the  time  and at  the  place  of  occurrence.   The  

evidence adduced by P.W. 1 and P.W. 3 clearly corroborate  

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.

19.The evidence adduced thus clearly establishes that all the  

four accused persons carried weapons with them and at the  

exhortation of  Sri  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  

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other two accused persons namely, Sri Shrawan Kumar and  

Sri  Ganesh  Singh.  A  pre-concerted  mind and  a  common  

intention to commit the offence are apparent on the face of  

the record. Section 33, IPC defines the expression “act” in  

the following words:

“The word “act” denotes as well a series of acts as  a single act.”   

Section 34, on the other hand, lays down that 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.

20.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 Sri  

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  

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the  deceased.    Therefore,  the  contention  of  the  counsel  

appearing for the appellants stands rejected.  

21.It was also submitted by one of the counsel that the First  

Information  Report  submitted  by  P.W.-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.  

22.On  the  other  hand  P.W.  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  hand writing  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 hand writing and there is  

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no evidence to impeach or doubt the said statement of the  

witness.  Consequently,  the  aforesaid  submission  is  also  

found to be without any merit.  

23.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.

24.The appeals, therefore, have no merit and are dismissed.  

The records may be transmitted immediately.   

 …….……………..…………J.  [Dr. Mukundakam Sharma]

…..…………………………….J.  [A.K. Patnaik]

NEW DELHI MARCH 30, 2010.

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