Judgment ( 1. ) TWENTY accused persons were convicted under Section 302/149 I. P. C. and sentenced to imprisonment for life. Out of these appellants No. 6 and 15 Veereshwar and Yogeshwar were also convicted under Section 148, I. P. C. and sentenced to rigorous imprisonment for one year and appellant Purshottam was convicted under Section 147, I. P. C. and sentenced to rigorous imprisonment for six months. All of them filed this appeal. It was decided by a Division Bench of this Court by the judgment dated 18-1-2000 and it was dismissed. On further appeal by appellant Veereshwar and others to the Supreme Court the appeal has been remanded for rehearing and fresh decision. During the course of hearing the learned counsel for appellants Veereshwar, Yogeshwar and Purshottam has confined his arguments in respect of these three persons only and therefore their appeal is being decided afresh. It is submitted that the other appellants have either died or served out the sentence and their case need not be dealt with by this Court. ( 2. ) IT is no longer in dispute that there was deep seated enmity between deceased Jagannath and accused Shiv Prasad who were residents of village Sukri. Shiv Prasad purchased a piece of land which Jagannath wanted to buy for himself and that also became a bone of contention between the two. A violent incident took place between 4 to 5 P. M. on 22-8-1983 between villages Sukri and Kodia in which five persons Jagannath, Annilal, Om Prakash, Balaram and Ramesh lost their lives. They died on the spot. Autopsy was conducted on their dead bodies. They had sustained multiple incised wounds besides other injuries. Their post-mortem and injury reports are Ex. P-18 to Ex. P-25. These have been duly proved by the doctors who conducted the post-mortem examination. ( 3. ) THE prosecution case is that all the twenty accused persons formed an unlawful assembly and in prosecution of the common object of that assembly caused serious injuries to the five persons named above. Jamna Prasad who is Sarpanch of Village Kaudia received information from Radhelal about this incident and he conveyed the same on telephone to Gadarwara Police Station which was recorded in Rojnamcha Sanha (Ex. P-28-A ). After sometime Mannulal (P. W. 2) gave detailed information to Jamna Prasad (P. W. 1) and he in his turn lodged Dehati Nalishi Ex. Jamna Prasad who is Sarpanch of Village Kaudia received information from Radhelal about this incident and he conveyed the same on telephone to Gadarwara Police Station which was recorded in Rojnamcha Sanha (Ex. P-28-A ). After sometime Mannulal (P. W. 2) gave detailed information to Jamna Prasad (P. W. 1) and he in his turn lodged Dehati Nalishi Ex. P-1 at 5. 45 P. M. on the date of incident itself. It was recorded by Awadhesh Kumar Pande (P. W. 21) Town Inspector, who had reached village Sukri on receipt of telephonic message of the Sarpanch. This Dehati Nalishi was sent to Gadarwara Police Station where the regular F. I. R. (Ex. P-17) was registered. According to the prosecution the incident was witnessed by four ocular witnesses. They are Mannulal (P. W. 2), Lakhan (P. W 3), Devendra Kumar (P. W. 4) and Sushil Kumar (P. W. 5 ). There was a prelude to this incident at about 10 A. M. in village Sukri but that was averted on the intervention of the Sarpanch and some other persons. ( 4. ) THE accused persons pleaded not guilty. Accused Yogeshwar set up the plea of alibi that he was under treatment of a Government Hospital at Jabalpur. ( 5. ) THE Trial Court after appreciation of the evidence on record held that the twenty accused persons have caused the death of five deceased persons in prosecution of their common object and convicted and sentenced them as stated at the outset. ( 6. ) IN this appeal it has been argued on behalf of the three appellants named above that the four witnesses cited by the prosecution as eye-witnesses were actually not present on the spot and their evidence is concocted. It is pointed out that Devendra Kumar (P. W, 4) and Sushil Kumar (P. W. 5) are closely related to deceased Jagannath and their presence on the spot was not natural and Lakhan (P. W. 3) is his servant. It is submitted that Mannulal (P. W. 2) reached the place of incident after it was over and he did not see the assailants. ( 7. ) THERE has to be critical analysis, independent evaluation and "dispassionate judicial scrutiny" of the evidence on record in an appeal against the conviction. It is submitted that Mannulal (P. W. 2) reached the place of incident after it was over and he did not see the assailants. ( 7. ) THERE has to be critical analysis, independent evaluation and "dispassionate judicial scrutiny" of the evidence on record in an appeal against the conviction. The testimony of the four witnesses mentioned above is to be assessed in light of the arguments raised on behalf of the defence. ( 8. ) LAKHAN (P. W. 3) is servant of deceased Balaram. He has deposed that he had gone with deceased Balaram and other deceased persons to Kaudia Bazar. According to him deceased Jagannath was on a horse and others were on their feet. Before the main incident took place Jagannath entrusted the horse to him. It was about 4 P. M. He tied that horse in the nearby bushes. There were 18 to 20 persons on the side of the accused. There was talk of compromise and then heated exchange of words between deceased Jagannath and accused Shiv Prasad. The accused persons were armed with various weapons. Accused Shiv Pal exhorted others to open the fight. Shiv Prasad himself dealt lathi blow on Om Prakash. Accused Veereshwar was having katarna (a sharp cutting weapon) and he caused injuries to deceased Jagannath with that weapon. Accused Yogeshwar attacked him with a Ballam and then all the accused persons started assaulting the five deceased persons. The witness has further stated that on seeing the brutal killings he developed panic and started running from the scene of occurrence. He reached village Sukri and narrated the incident to the female members of the family of Jagannath. On his way to village Sukri he also disclosed this incident to Makrand Singh who has not been examined by the prosecution. He has also stated that in village Sukri he remained hiding in the house because of the terror let loose by the accused persons who had also arrived there after the incident. In the night he went to nearby village Kherua and gave the details of the incident to deceased Balarams brother Purshottam (who has also not been examined as a witness) and to Ruplal. After three days Police Inspector came and then he accompanied him to Gadarwara Police Station. In cross-examination he has stated that he knew accused Yogeshwar very well and he is also called Keshav. After three days Police Inspector came and then he accompanied him to Gadarwara Police Station. In cross-examination he has stated that he knew accused Yogeshwar very well and he is also called Keshav. His statement under Section 161 Cr. P. C. is Ex. D-2, He has stated that accused Yogeshwar used blunt side of Ballam to cause injuries to the deceased persons and not the sharp edged portion. But the iron studded portion hit the head of deceased Jagannath and he tell down after he was attacked with Ballam. He himself ran from the place of incident after all the five deceased persons fell down. He was at a distance of four-five steps from them. He was hiding himself behind the horse and therefore he could not be attacked. He has further stated in his cross-examination that Veereshwar caused injuries to Jagannath with Katarna. There is omission in Ex. D-2 to this extent only that it is not specifically stated therein that Veereshwar was armed with Katarna but it is stated that Veereshwar caused injuries to Jagannath and the accused persons were armed with Katarna, Ballam, Lathis and Axes. There is no material omission. It is only the method of narrating the incident which is slightly different. Both the statements arc substantially the same. The statement of this witness marked as Ex. D-2 has been recorded by the police on 25-8-1983 and the incident had taken place on 22-8-1983. The witness has explained that he was afraid of the accused persons who had seen him at the place of incident and he quietly went to village Kherua in the night and remained there two days till the time the police officer came there and then he accompanied him to Gadarwara. For this reason there was delay of three days in recording the statement of this witness. He was servant of deceased Balaram and it is natural that he accompanied him when he went from village Sukri to village Kaudia on the market day. It is not possible to accept the defence plea that this witness was not at all present on the scene of incident and he has been introduced as a prosecution witness simply because he was servant of deceased Balaram. It is not possible to accept the defence plea that this witness was not at all present on the scene of incident and he has been introduced as a prosecution witness simply because he was servant of deceased Balaram. The horror-stricken witness after seeing the brutal murder of five persons could not have mustered the courage to come in the open and run to the police station to lodge the F. I. R. His remaining in the binding for three days was natural and he cannot be held to be a tutored witness. The manner in which he gave the statement (Ex. D-2) and his evidence in the Court shows that he was present on the spot when the incident took place and he was the ocular witness. His testimony is trust-worthy. ( 9. ) MANNULAL (P. W 2) has sworn that he was sitting in the house of Shrawan Tiwari in village Kodia at about 4. 30 P. M. when he heared the cries from behind his house. He went to that side and he saw the incident. There were 18 to 20 persons including Veereshwar and Yogeshwar who are sons of accused Shiv Prasad. They were all armed with lathis, axes and Katarna and they caused injuries to five persons and killed them on the spot. He saw Lakhan (P. W. 3), Devendra (P. W. 4) and Sushil (P. W. 5) running from the place of incident after it was over. He went to Jamna Prasad Modi (P. W. 1), Sarpanch and narrated the incident to him. He told him the names of the five deceased persons and also the names of 18 to 20 accused persons who caused injuries to them. He was asked in his examination-in-chief to name these persons and he takes the names of seven persons. But earlier in Para 2 he has specifically stated that Veereshwar and Yogeshwar were present with other accused persons and they were also the assailants. This witness has also stated that some incident had taken place at 10 A. M. also but that was averted because of the intervention of the Sarpanch and other persons. In cross-examination he has stated that Shrawan Tiwari was not at home but the female members of his family were there and he was waiting for him when he heard the noise. In cross-examination he has stated that Shrawan Tiwari was not at home but the female members of his family were there and he was waiting for him when he heard the noise. In Para 5 he states that he saw the incident from a distance equal to the distance of Rest House from the Court premises where he was examined as a witness and that is seven furlongs. The Trial Court has watched this witness in the witness-box and has observed that being a rustic witness he could not understand the meaning of seven furlongs. It is difficult to hold that the witness was at such a long distance when he claims emphatically that he saw the incident. If he saw the incident then his statement extracted in cross-examination that he was at a distance of seven furlongs is erroneous. He could not understand the implication of this question. His statement under Section 161 Cr. P. C. was recorded on 22-8-1983 i. e. on the date of incident itself. There was no delay in recording his statement and he came forward to give his statement at the earliest moment and therefore the chances of this witness being tutored are ruled out to a large extent. The name of this witness finds place in the Dehati Nalishi (FIR Ex. P-1) lodged by Jamna Prasad (P. W. 1) when the Police Officer reached the village on receipt of the telephonic message from him. This FIR (Ex. P-1) has been recorded at 5. 45 P. M. It was very prompt. Therefore, there was no time for concoction, embroidery or embellishment. ( 10. ) DEVENDRA Kumar (P. W. 4) is son of deceased Om Prakash. He has stated on oath that he went to school in village Kaudia at about 10. 30 A. M. He was at that time about 14 years of age. His uncle Sushil Kumar (P. W. 5) was also with him. Upto village Kaudia and then he left for Gadarwara. It was decided that after coming back from Gadarwara he would meet him in Kaudia and they both together would leave for Sukri. This witness has further stated that his school was over at 3 P. M. and then he went to Kaudia Market. Sushil Kumar (P. W. 5) met him in the hotel. They purchased a few things from the market and then started for Sukri. This witness has further stated that his school was over at 3 P. M. and then he went to Kaudia Market. Sushil Kumar (P. W. 5) met him in the hotel. They purchased a few things from the market and then started for Sukri. On their way they heard some commotion at the cross-road. He saw the twenty accused persons named by him including Veereshwar, Yogeshwar and Purshottam causing injuries to five deceased persons. According to him Shiv Prasad was first to attack Om Prakash with a lathi; Yogeshwar was having a Ballam and Veereshwar was armed with Katarna. They caused injuries to the deceased persons and they fell down. He saw Mannulal (P. W. 2) and Lakhan (P. W. 3) also there. He fled towards village Chirya and Sushil (P. W. 5) ran towards village Bohani. He narrated the incident to his Bua and Phupha in village Chirya. He came back to Kaudia with his Phupha and then his statement was recorded by the police. In cross examination he has stated that his Phupha is Sarpanch of village Chirya and his Phuphas father is Patel of that village. He has also stated that some other persons of village Chirya were also present when he narrated the incident to his Phupha. According to him he came to know in village Chirya that the police has reached village Kaudia. In Para 6 he has stated that he had seen the incident from a distance of about 50-60 steps. His statement under Section 161 Cr. P. C. is Ex. D-3 which was recorded on the date of incident. In that statement he gave out that Mannulal had reached near him. He has further clarified that Mannulal had reached the spot before him. He has explained that he did not run towards the habitation of village Kaudia or to village Sukri as he was afraid of his life and he chose to run towards village Chirya. An attempt has been made to show that there are discrepancies in his evidence in the Court and in his statement (Ex. D-3 ). These are with respect to very minor details and the method of narration. There is no contradiction in material particulars. He has refuted the suggestion that he was not present on the spot. His statement under Section 161 Cr. P. C. has been promptly recorded and there was no delay in that regard. D-3 ). These are with respect to very minor details and the method of narration. There is no contradiction in material particulars. He has refuted the suggestion that he was not present on the spot. His statement under Section 161 Cr. P. C. has been promptly recorded and there was no delay in that regard. That lends credence to his evidence that he was actually present on the spot when the incident took place. His deposition is natural and inspires confidence. ( 11. ) SUSHIL Kumar (P. W. 5) has corroborated the testimony of his nephew Devendra Kumar (P. W. 4 ). He is son of deceased Jagannath. He went to village Gadarwara and on return he met Devendra Kumar (P. W. 4) in a hotel in village Kaudia, purchased certain things from the market and then proceeded towards Sukri. He saw the twenty accused persons assaulting the five persons who died on the spot. He is specific on the point that accused Yogeshwar was armed with Ballam and Veereshwar had Katarna. Yogeshwar dealt a Ballam blow on his father Jagannath. All the five injured persons fell down and they were assaulted even thereafter. He himself fled towards village Bohani and he was under panic. His nephew ran towards village Chirya. According to him Mannulal (P. W. 2) and Lakhan (P. W. 3) were also present on the spot and they saw the incident. He was further stated that he kept himself hidden in a hut in a field in village Bohani as he was afraid of his life. Next day morning he reached village Chirya and then he came to know that Devendra Kumar (P. W. 4) has left with his Phupha in the night for village Kaudia. His statement under Section 161 Cr. P. C. (Ex. D-4) was recorded on 23-8-1983 and thus there was no delay in recording that statement. His evidence in the Court and his statement before the police are substantially the same. There is no material contradiction though there are certain discrepancies in respect of minor details which are quite natural. The evidence of this witness is quite satisfactory and it is reliable. ( 12. ) JAMNA Prasad (P. W. 1) is Sarpanch of village Kaudia. He has deposed that on the date of incident Jagannath came to his house in the morning on his horse with his servant and then went to Dr. The evidence of this witness is quite satisfactory and it is reliable. ( 12. ) JAMNA Prasad (P. W. 1) is Sarpanch of village Kaudia. He has deposed that on the date of incident Jagannath came to his house in the morning on his horse with his servant and then went to Dr. Dube in the same village with his servant. After sometime he saw the confrontation between Jagannath and Shiv Prasad and his companions. He requested them that they should not quarrel in his village on the festival day and they dispersed. He has further stated that at about 4. 30 P. M. he was going towards the market and then he was informed by Radhelal Soni that there has been an incident between the persons of village Sukri and after some distance he learnt from Mannulal that five persons have died in the incident. He went to the office of the Co-operative Bank and phoned to Gadarwara Police Station and he was told by the Police Officer that he is corning to the village. After about an hour the Town Inspector with his party arrived in the village and took him to the spot. The Police Officer prepared the Panchnamas and sent five dead bodies for post-mortem. He lodged the report Ex. P-1 with the Police Officer. In cross-examination he has stated that Mannulal had talked to him before he gave the message to the police station on phone. In the report (Ex. P-1) it is stated that Mannulal gave him the detailed account of the incident after he phoned to the police. But it is Mannulal who at the earliest possible moment told him that he has seen the incident. Jamna Prasad (P. W. 1) is himself not an eye-witness to the incident. He has lodged the FIR on the basis what he learnt from others. For this reason there are certain discrepancies in his evidence in the Court and his FIR (Ex. P-1 ). But these are not on the essential core of the prosecution case. From the evidence of this witness one thing is clear that there was quarrel between Jagannath on the one hand and Shiv Prasad and his companions on the other at about 10. 00 AM. also on the date of incident and, therefore, that furnishes a reassurance that Shiv Prasad and his associates were the perpetrators of the crime at 4. From the evidence of this witness one thing is clear that there was quarrel between Jagannath on the one hand and Shiv Prasad and his companions on the other at about 10. 00 AM. also on the date of incident and, therefore, that furnishes a reassurance that Shiv Prasad and his associates were the perpetrators of the crime at 4. 30 PM. also. 13. It has been argued on behalf of the appellants that the telephonic message received at the police station from Jamna Prasad (PW 1) Sarpanch and recorded in the Rojnamcha (Ex. P-28-A) is the real FIR and Dehati Nalishi (Ex. P-1) falls under Section 161 Cr. P. C. and, therefore, it is not admissible in evidence. The entry in the Rojnamcha (Ex. P-28-A) has been perused by this Court. It is recorded therein that there has been an incident of violence between villages Kaudia and Sukri. The details are not given in this report. It is well settled that a cryptic and anonymous telephonic message which does not clearly specify a cognizable offence cannot be treated as first information report. In Soma Bhai v. State of Gujarat, AIR 1975 SC 1453 it has been held by the Supreme Court that cryptic information given to the police even by an identifiable person on telephone cannot be termed as F. I. R. Earlier in Tapinder Singh v. State of Punjab, AIR 1970 SC 1566 it has been held that cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report. The mere fact that the information was the first in point of time does not by itself clothe it with the character of first information report. The question whether or not a particular document constitutes a first information report has, broadly speaking, to be determined on the relevant facts and circumstances of each case. ( 13. ) THE legal position has been made crystal clear regarding the telephonic first information report in Ramesh Bavaji Jadeja v. State of Gujarat, (1994) 2 SCC 685 where it has been held that the question as to at what stage the investigation commences has to be considered and examined on the facts of each case, especially, when the information of a cognizable offence has been given on telephone. 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. So if the telephonic message is cryptic in nature and the officer in charge, proceeds to the place of occurrence on the 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 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. ( 14. ) RECENTLY in Mundrika Mahto v. State of Bihar, AIR 2002 SC 2042 also it has been held : "the telephonic conversation also could not be treated as FIR, as contended, as it was a cryptic information that was received and recorded in the daily diary regarding the commission of offence. " ( 15. ) IN the present case the telephonic message recorded in Rojnamcha (Ex. P-28-A) cannot be said to be the first information report as it is very vague and cryptic. After reaching village Kaudia the Town Inspector recorded report of Jamna Prasad (P. W. 1 ). That is Ex. P-1. That is the FIR. It has a corroborative value. ( 16. ) IT has also been contended that according to the evidence on record the Panchnamas of the dead body were prepared before the FIR (Ex. P-1) was recorded and as the investigation had commenced with the preparation of the Panchnamas, the document (Ex. P-1) cannot be treated as FIR, The police officer after reaching the village found five persons in badly injured condition. P-1) was recorded and as the investigation had commenced with the preparation of the Panchnamas, the document (Ex. P-1) cannot be treated as FIR, The police officer after reaching the village found five persons in badly injured condition. Therefore, naturally his anxiety would be to send these persons to the hospital first and then he would find out as to who are the culprits. Merely because the Panchnamas were prepared first for sending the dead bodies to the hospital it cannot be said that the statement of Jamna Prasad (P. W 1) in Ex. P-1 falls within the mischief of Section 162, Cr. P. C. The police officer did not record the statement of any witness at the time of the preparation of Panchnamas, In Podda Narayana v. State of Andhra Pradesh, AIR 1975 SC 1252 the Supreme Court has observed that the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. ( 17. ) IT has also been submitted during the course of arguments by the learned Counsel for the appellants that the incident took place on the market day and, therefore, independent witnesses should have been examined to prove the guilt of the accused persons. It has not been pointed out that there was such witness present on the spot who could be examined. The incident took place not in the market place but at the outskirts and no independent witnesses were actually present at the time of the incident. Mannulal (P. W. 2) is really an independent witness. He reached the place of occurrence on hearing the cries. His name finds place in the FIR (Ex. P-1 ). His testimony has been found reliable by this Court. That has been corroborated by the evidence on three other eye-witnesses. ( 18. Mannulal (P. W. 2) is really an independent witness. He reached the place of occurrence on hearing the cries. His name finds place in the FIR (Ex. P-1 ). His testimony has been found reliable by this Court. That has been corroborated by the evidence on three other eye-witnesses. ( 18. ) IT has also been put-forward that Lakhan (P. W. 3) is the servant of the deceased persons and Devendra Kumar (P. W 4) and Sushil Kumar (P. W. 5) are closely related to the deceased persons and, therefore, being interested witnesses, should not be relied upon. The evidence of these witnesses has been discussed above in detail and their testimony cannot be discarded simply on the ground that one witness is the servant and two other witnesses are related to the deceased persons. The servant was naturally in the company of his master and he was present on the spot. The other witnesses though related reached the place of occurrence while returning from the market in village Kaudia. Recently in Surinder Singh v. State of U. P. , (2003) 10 SCC 26 it has been observed that relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. In such cases, the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. Hence, the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. Each case must be limited to and governed by its own facts. ( 19. ) IT is also pointed out that in the requisition memo or in the Panchanama the names of the assailants have not been mentioned. In State of M. P. v. Mansingh, (2003) 10 SCC 414 it has been observed that : "it is a settled position in law that omission to mention the name of the assailants in the requisition memo perforce does not render the prosecution version brittle. Minor discrepancies do not corrode the credibility of an otherwise acceptable evidence. ( 20. ) THE evidence of the four eye-witnesses has been closely scrutinized by this Court. The testimony of Jamna Prasad (P. W. 1) has also been examined. Minor discrepancies do not corrode the credibility of an otherwise acceptable evidence. ( 20. ) THE evidence of the four eye-witnesses has been closely scrutinized by this Court. The testimony of Jamna Prasad (P. W. 1) has also been examined. It could not be disputed at the time of hearing of this appeal that five persons were brutally murdered. The only question is whether the three appellants whose case has been argued before this Bench are the authors of this crime. Accused Veereshwar and Yogeshwar were armed with sharp edged weapons Katarna and Ballam. The post-mortem reports clearly reveal that multiple incised wounds were caused to the deceased persons. It is accused Veereshwar and Yogeshwar who were primarily responsible for causing death of these five persons and they were definitely acting in prosecution of the common object of the unlawful assembly. Accused Yogeshwar set-up the plea of alibi and according to him he was admitted in the hospital at Jabalpur on 22-8-1983. The Trial Court in Para 66 of its judgment has pointed out the over writing in the register (Ex. D-10 ). The entry regarding the admission of appellant Yogeshwar in the hospital has been interpolated. ( 21. ) HOWEVER, so far as appellant Purshottam is concerned, the evidence adduced by the prosecution is not sufficient to bring home the guilt to him. As mentioned above he has not been specifically named by Lakhan (P. W. 3) and Munnulal (P. W. 2 ). There is no clear and cogent evidence regarding his overt acts. Therefore, he deserves benefit of doubt. ( 22. ) IN the result the appeal of appellants Veereshwar and Yogeshwar is dismissed. The appeal of appellant Purshottam is allowed. His conviction and sentence are set aside and he is acquitted of the charges under Sections 147 and 302/149 I. P. C.