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PETITIONER: RAM CHARAN & ORS.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 01/03/1968

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SHELAT, J.M. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR 1270            1968 SCR  (2) 354  CITATOR INFO :  R          1974 SC2165  (48)  R          1980 SC 628  (13)

ACT: Code of Criminal Procedure (Act 5 of 1898), s. 164-Statement of  witness recorded under section-Evidence given by him  in Court-Weight of.

HEADNOTE: The  statements of eye witnesses to a murder  were  recorded under s. 164, Criminal Procedure Code, and a certificate was appended  to each of the statements to the effect, that  the deponent was warned that he was making the statement  before a Magistrate and that it might be used against him. On  the  question as to the weight to, be  attached  to  the evidence given by the witnesses in court, HELD  :  It  did not follow from the  endorsement  that  any threat  was  given to the witnesses or that  it  necessarily made  their  evidence in court suspect or  less  believable. [357 G] If a witness, in his evidence in court sticks to the version given  by him in the statement under s. 164, Cr.   P.C.  the mere  fact that the statement was previously recorded  under the  section  is not sufficient to discard  his  .,evidence. The  only inference that can be drawn is that there,  was  a time  when  the police thought the witness  may  change  his evidence.   The  Court.  %however,  ought  to.  receive  the evidence with caution. [358 D] Observations in Parmanand v. Emperor, A.I.R. 1940 Nag.  340, 344  and In re : Gopisetti Chinna  Venkatasubbialh.,  I.L.R. [1955] A.P. 633, 639. approved. Observations  contra  in Emperor v. Manu Chik,  A.I.R.  1938 Patna 290, 295, disapproved.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 175  of 1967. Appeal  by special leave from the judgment and  order  dated May  17, 1967 of the Allahabad High Court, Lucknow Bench  in

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Criminal  Appeal  No.  72  of  1967  and  Capital   Sentence Reference No. 9 of 1967. S.   P. Sinha. and M. I. Khowaja, for the appellants. G.   N. Dikshit and O. P. Rana,, for the respondent. The Judgment of the Court was delivered by Sikri, J.-This appeal by special leave by Ram Charan, Duila- rey  and  Ram Bux is directed against the  judgment  of  the Allahabad   High  Court,  Lucknow  Bench,   confirming   the convictions under s. 302, read with s. 34, I.P.C. Ram Charan and  Dularey  were  sentenced to death  while  Ram  Bux  was sentenced to imprisonment for life. 355 The relevant facts in brief are as follows : On December 24, 1965,  at about 8 a.m. four persons started for  Lucknow  on two cycles; Shanker Singh and Radhey Shyam were on one cycle and  Surat Singh and Bachchu Lal on another.   Radhey  Shyam had  some business in Lucknow, including consulting Sri  Pal Singh,  Advocate,  P.W. 20, regarding the preparation  of  a reply  to  a  notice received by him.  After  the  work  was finished  the  four left Lucknow.  It  appears  that  Radhey Shyam  was  sitting on the carrier of the  cycle  driven  by Shankar Singh, and Bachchu Lal was sitting on the carrier of the  cycle  driven by Surat Singh.  Radhey Shyam  carried  a leather bag in which he had kept money which he had received as  the  sale proceeds of jau sold by him in  Lucknow.   For some  reasons which need not be detailed, Shankar Singh  and Radhey Shyam went ahead of Surat Singh and Bachchu Lal,  and the  distance  between them when they came  near  about  the scene  of occurrence was, according to Surat Singh,  between 1-1/2  and 2 furlongs.  When Shankar Singh and Radhey  Shyam reached  near  the drain of Rastogi, they  met  Ram  Charan, accused.   Radhey Shyam got down from the cycle and  started walking  with  Ram Charan, while Shankar  Singh  followed  a little  behind.  Then the attack on Radhey Shyam took  place and is described thus by Shankar Singh :               "When  we reached the grove of Durga  Maharaj’               then Ram Bux and Dularey accused were  sitting               at the well.  Then Ram Charan by extending his               hands  (Kantiya  Kar) caught  hold  of  Radhey               Shyam and threw him down on his face and after               drawing  his hands towards his back  sat  down               catching  him.   Dularey and Ram Bux  came  up               running.  Dularey had a Banka and Ram Bux  had               a lathi.  Ram Charan told Dularey, ’Bring  the               Banka,  why are you delaying it.’ Thereupon  I               cried  out.   Then Dularey  gave  5-6-7  Banka               blows  to Radhev Shyam on his neck.  As I  was               crying so Ram Charan saia ’Beat Thakurwa.   He               will go to the village and tell that such  and               such persons had hacked Radhey Shyam.’ At this               Ram  Bux gave 5-6 Lathi blows to me.  By  that               time  Surat Singh and Bachoo Mahraj also  came               there and Rupan also came." Surat  Singh corroborates this statement.  He says  that  he saw all this from a distance of 1-’i furlongs.  Bachchu Lal, P.W.  7,  also corroborates this version.  He says  that  on seeing  the attack he and Surat Singh ran towards the  scene of  occurrence.   He further adds that when they were  at  a distance of about 30-35 paces, the accused ran away. The  First  Information  Report was  lodged  at  the  police station four miles from the scene of the occurrence at 17.30 hours by Shanker Singh. 356 The  learned counsel for the appellants says that the  First Information Report was written much later than the time men-

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tioned  above.  He relies first on the fact that  the  first page  of  the  First Information  Report  was  written  very closely  and  the second page written not  so  closely.   He suggests that the draft was prepared sometime later and then it  was copied into the Register in which first  information reports  are written; the writer having left only two  pages for the report to be transcribed wanted to be quite  certain that the report would finish in two pages.  This  suggestion is,  however,  denied  by Liaqat Hussain, P.W.  6,  who  was posted  as  Head Moharrir at the police  station  Kakori  in 1965.  He says that he wrote on the first page of the report closely  because he wanted that the whole matter  should  be completed  on that page and that there was no other  reason; after  finishing the first page when he started  writing  on the second page then he did not write closely as the  report had come to an end.  He denied the suggestion that two pages were  left for writing this report.  This explanation  seems to  be  true.   The special report of this  case  was  sent, according  to  this witness, on December 24, 1965,  at  7.55 p.m.  through  Abdul Rashid, Constable, who  was  called  as Court Witness.  He says that he delivered the special report at the place of S.S.P. I at 9.10 a.m. on December 25,  1965. The  special  report  was sent to  S.S.P.  D.M.,  Additional S.P.C.O.,  S.D.M., and D.C.R.R.S. on Invoice Book at No.  54 which   was  exhibited  in  Court.   The   learned   counsel criticizes  his  evidence  on the ground that  there  is  no reason  why  he should have slept on the  way.   The  reason given by Abdul Rashid for breaking his journey on the way is that  the ekka drivers and riksha drivers were charging  too much.  In our view, there is no force in this contention  of the learned counsel for the appellants. The  second ground of attack against the  First  Information Report is that the report itself discloses that it could not have  been dictated by Shanker Singh.  He says that  Shanker Singh  was  literate and yet the  First  Information  Report bears his thumb mark.  He further says that it mentions  the names  of  the  fathers of Radhey Shyam,  Ram  Charan,  Mata Pershad, Dayal, Lallu and Ram Bux, but in  cross-examination Shanker Singh admitted that he did not know the names of Ram Charan’s father and Rain Dayal’s father, and also he did not know  the  name of Ram Bux’s father.  He,  however,  further added  in  cross-examination that at the time  he  gave  the First  Information Report, the names of the fathers  of  Ram Charan and Ram Dayal were then in his memory.  Another  fact relied  on  by  the  learned  counsel  is  that  the   First Information  Report  contains  the word  "sazish"  while  in cross-examination  Shanker  Singh admitted that he  did  not know  the meaning, of this word.  He urges that  looking  at all   these  circumstances  it  is  clear  that  the   First Information Report was either 357 written  at the scene of occurrence after the  Investigating Officer had gone there or that a draft was first written  on a  piece  of paper some people supplying the  names  of  the fathers of the various persons and suggesting words. We  are, however, unable to accede to this  contention.   It may well be that the chowkidar who accompanied Shanker Singh supplied  the name of the father of a particular person  and the Head Moharrir may have substituted a word or two of  his own,  without  changing  the  meaning.   The   Investigating Officer went straightaway to the scene of the occurrence and started investigation.  None of these facts, in our opinion, cast doubt on the prosecution story.  It may be that Shanker Singh  is able to sign but he put his thumb  impression  not only  on the First Information Report but on  his  statement

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under  s.  164,  Cr.  P.C., and this  statement  before  the Committing Magistrate.  It may be that It was felt safer  to have  his  thumb impression which he could  not  effectively deny later.  But the fact that the special report ’was  sent on  December  24, 1965, in the evening,  dispels  any  doubt about the fact that the First Information Report was  lodged at 5.30 p.m. on December 24, 1965. Dealing with the eye-witnesses, the learned counsel drew our attention   to  the  endorsement  which  was  made  by   the Magistrate  who took down the statements under s.  164,  Cr. P.C.  Below he statements is appended a certificate  in  the following form               "Certified  that the statement has  been  made               voluntarily.  The deponent was warned that  he               is  making the statement before the 1st  class               Magistrate  and  can  be  used  against   him.               Recorded  in my presence.  There is no  police               here.   The witness did not go out  until  all               the witnesses had given the statement." This  certificate  appears below the statements  of  Shanker Singh,  Surat  Singh and Bachchu Lal.  The  learned  counsel rightly suggests that the endorsement is not proper.  But we are unable to pay that it follows from this endorsement that any  threat  was  given  to  these  witnesses  or  that   it necessarily  makes  the evidence given by the  witnesses  in Court suspect or less believable. The learned counsel further relies on the following  passage rom the judgment of Dhavle J., in Emperor v. Manu Chik(1)               "There is yet another circumstance which calls               for  remark, and that is the  examination,  of               Ladhu and Rebi among other witnesses under  S.               164,  Criminal  P.C.  it was  pointed  out  by               Prinsep,  J., in the well-known case in  Queen               Empress v.  Jadub Das(2) that a statement of a               (1) A.I.R. 1938 Pat 290-295.               (2) 27 Cal. 295.               358               witness  obtained  under this  section  always               raises  a  suspicion  that  it  has  not  been               voluntarily made, and that the section was not               intended  to  enable the police, to  obtain  a               statement  from some person (in that  case  it               was an incriminating statement) and as it were               to put a seal on that statement by sending  in               that person to a Magistrate practically  under               custody,  to be examined before  the  judicial               inquiry or trial, and therefore compromised in               his  evidence  when judicial  proceedings  are               regularly taken." These observations were dissented from by the Andhra Pradesh High  Court in In re : Gopisetti Chinna  Venkata  Subbiah(1) and Subba Rao, C.J., preferred the following observations of the, Nagpur High Court in Parmanand v. Emperor(1)               "We are of the opinion that if a statement  of               a witness is previously recorded under section               164,  Criminal Procedure Code, it leads to  an               inference  that  there  was a  time  when  the               police  thought the witness may change but  if               the  witness sticks to the statement  made  by               him   throughout,  the  mere  fact  that   his               statement   was  previously   recorded   under               section 164 will not be sufficient to  discard               it.   The Court, however, ought to receive  it               with   caution   and  if   there   are   other               circumstances on record which lend support

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             to the truth of the evidence of such  witness,               it can be acted upon." We agree with Subba Rao, C.J., that the observations of  the learned  Judges  of the Nagpur High Court lay down  the  lay correctly. In the result the appeal fails and is dismissed. V.P.S.                    Appeal dismisses (1)  I.L.R. [1955] A.P. 633-38. (2)  A.I.R. 1940 Nag. 340. 359