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2004 DIGILAW 792 (CAL)

SK. DILWAR, DILLU v. STATE OF WEST BENGAL

2004-12-23

ARUN KUMAR BHATTACHARYA, BHASKAR BHATTACHARYA

body2004
BHATTACHARYA, J. ( 1 ) ALL these three appeals were heard together as these appeals have been preferred against a common Judgment by which the learned sessions Judge has found all the three appellants guilty of charge under Section 302/34 of the Indian Penal Code and sentenced them to imprisonment for life. ( 2 ) C. R. A. No. 146 of 2002 has been preferred by Sk. Dilwar alias Dillu, C. R. A. No. 346 of 1997 has been filed by Md. Firoz and Kol has approached this court with the other appeal being C. R. A. No. 25 of 1998. Another person viz. Chand, has also been convicted along with the aforesaid three appellants but he has not preferred any appeal against such order of conviction and sentence. ( 3 ) THE prosecution case is based on F. I. R. lodged by one Md. Nasim, the elder brother of the victim named Nuruddin, and the information disclosed in such F. I. R. may be summed up thus : (a) The deceased along with his parents, elder brother and married sister used to stay at premises No. 8 Nabab Abdul Latif Street, Calcutta-16. On July 22,1993 at about 2 p. m. when the informant was about to enter his house after coming back from outside, a boy named Kol of that locality, who was a friend of the deceased, came to the said house and enquired of the victim from the informant. (b) The informant told him that he did not know his whereabouts and went upstairs. Kol, however, came upstairs and enquired of the deceased from the younger sister of the informant when the said younger sister told him that the deceased was not available at the residence. After hearing such answer, Kol pointed out that the "chappals" of the victim were lying in the ground floor and he came downstairs and after opening the room on the ground floor called the victim and took him away. (c) After a few minutes, Kol came back and informed that the victim had been killed by Firoz and his companions. At once, the informant came downstairs with his wife and younger sister but he could not find Kol. (c) After a few minutes, Kol came back and informed that the victim had been killed by Firoz and his companions. At once, the informant came downstairs with his wife and younger sister but he could not find Kol. After coming to the street, the informant noticed a gathering neartarikhana and as such, they ran towards that place and saw that the victim was groaning with injuries on different parts of his body near the meat shop of one Nizam. The victim on being asked by the informant told that "firoz and his companions" had assaulted him. (d) Immediately thereafter, the informant took the victim to N. R. S. Hospital and told all the incidents to the Doctor. At once the Doctor sent the victim to the Ward upstairs and after sometimes the Doctor informed that the victim had died. After hearing the said news, the informant came back to his house and narrated the incident to the police, already present at their house. ( 4 ) ON the basis of the aforesaid First Information Report, a case was started under sections 302/34 of the Indian Penal Code against four accused persons namely Kol, Firoz, Dillu and one Chand. ( 5 ) ALL the accused persons pleaded innocence. At the time of hearing, the prosecution examined fifteen witnesses in support of its case. The accused did not adduce any evidence in support of their defence. The Court, however! examined the accused persons under Section 313 of the Code of Criminal procedure. ( 6 ) ULTIMATELY, by the order impugned herein, the learned Sessions Judge found all the accused persons guilty of the offence under Sections 302/34, Indian penal Code and sentenced them to life imprisonment. ( 7 ) BEING dissatisfied, these three separate appeals have been preferred by the three convicted persons except Chand. ( 8 ) MR. Rahaman, learned Counsel, appears on behalf of the accused Kol, mrs. Panda the learned Counsel made submissions on behalf of the accused dillu and Mr. Bagchi, the learned Counsel advanced argument on behalf of the accused Firoz. ( 9 ) MR. Rahaman, the learned Counsel appearing on behalf of Kol, has challenged the order of conviction mainly on twofold grounds. Rahaman, learned Counsel, appears on behalf of the accused Kol, mrs. Panda the learned Counsel made submissions on behalf of the accused dillu and Mr. Bagchi, the learned Counsel advanced argument on behalf of the accused Firoz. ( 9 ) MR. Rahaman, the learned Counsel appearing on behalf of Kol, has challenged the order of conviction mainly on twofold grounds. According to him, even if the prosecution case is believed, there was no justification of convicting his client, inasmuch as, it is absurd that after committing murder of a person, any murderer will come back to the house of the victim and will inform that the victim had been murdered. According to Mr. Rahaman, in this case, the prosecution has brought two alleged eye-witnesses, the mother and widow of the victim, but both are procured witnesses. Mr. Rahaman contends that specific evidence given by these two alleged eye-witnesses is that his client Kol made several attacks with Razor on the body of the victim but the evidence of the doctor, who performed autopsy of the dead body of the victim, opined that all the injuries were made by heavy sharp cutting instrument such as Dao, Chopper and axe. By relying upon such evidence, Mr. Rahaman contends that the aforesaid opinion of the Doctor falsifies the evidence given by the mother and the widow of the deceased that Kol was involved in the incident. Mr. Rahaman further points out that according to the P. W. 3, Kol along with the other accused continued their assaults till the arrival of the elder brother, sister and the sister-in-law of the victim but those three persons told a different story that Kol came for the second time in their residence and informed them that Feroz and his associates had killed him. According to Mr. Rahaman, if we believe the statement of P. W. 3, we are to disbelieve the versions of those three witnesses. ( 10 ) MRS. Soma Panda, the learned Advocate appearing on behalf of Sk. Diiwar, alias, Dillu, the appellant in C. R. A. No. 146 of 2002, has forcefully contended that in the so-called F. I. R. , the name of her client, namely, Sk. Dilwar, was not mentioned. ( 10 ) MRS. Soma Panda, the learned Advocate appearing on behalf of Sk. Diiwar, alias, Dillu, the appellant in C. R. A. No. 146 of 2002, has forcefully contended that in the so-called F. I. R. , the name of her client, namely, Sk. Dilwar, was not mentioned. She further submitted that even on the next day i. e. to say 23rd July, 1995 when P. W. 4, gave further statement under Section 161 of the Code of Criminal Procedure before the police, the name of Dilwar was not indicated. She further submits that in the present case, the prosecution case is based on evidence given by the two alleged eye-witnesses namely P. W. 3 and P. W. 5 but those witnesses are tutored witnesses and were not even present at the time of occurrence. According to Mrs. Panda, no material has been placed before the Court showing that P. W. 3 and P. W. 5 really went to the doctor or medicine shop for the purpose of taking medicine. According to Mrs. Panda, although those two witnesses have tried to explain away their inability to produce the prescription by saying that the prescription was spoiled due to rain or those were lost, there was no evidence adduced by any Doctor or medicine-shop owner showing that P. W. 3 and P. W. 5 really came to their medicine shop for the purpose of purchasing medicine. Mrs. Panda further contends that even the Investigating Officer did not feel the necessity of verifying whether for such medicine-shop is really there at the place indicated by those two witnesses. ( 11 ) EVEN by referring to the evidence given by P. W. 3 and P. W. 5 Mrs. Panda submits that the evidence given by those two persons are contradictory. Mrs. Panda points out that P. W. 3 has specifically stated that four accused persons were assaulting the victim and seeing such incident when P. W. 3 and P. W. 5 were shouting for help, those accused did not spare the victim and hearing their shouts P. W. 4, his sister and wife arrived at the spot and then the accused persons went away; on the other hand, P. W. 5 has stated that those four persons as well as "four or five others" were assaulting the victim. Mrs. Mrs. Panda contends that if we accept the statement of the P. W. 3 that P. W. 4, his sister and wife arrived while the assaults were going on, the evidence of P. W. 4 that Kol went to their house to inform that victim had been killed by Firoz and his associates should be disbelieved. Mrs. Panda further points out that the P. W. 3 and P. W. 5 even could not disclose the exact location of the medicine-shop from which they were allegedly coming back after purchasing medicine. ( 12 ) REGARDING evidence of P. W. 4, Mrs. Panda contends that if the victim really disclosed to him the names of the four alleged assailants while they were going to N. R. S. Hospital, such fact should have found place in the so-called f. I. R. lodged before police at 3. 30 p. m. on the date of incident. She contends that if the P. W. 4 had already known the name of her client as one of the assailants, there was no reason why such name should not appear in F. I. R. Mrs. Panda, thus prays for setting aside order of conviction and sentence imposed upon her client. ( 13 ) MR. Bagchi, the learned Advocate appearing on behalf of Firoz, the appellant in C. R. A. No. 346 of 1997, has after adopting the arguments advanced by Mr. Rahaman and Mrs. Panda taken further points in support of his client. ( 14 ) ACCORDING to Mr. Bagchi, the so-called F. I. R. lodged at 3. 30 p. m. on the date of incident which was registered at the Police Station at 7. 50 p. m. of that day is hit by Section 162 of the Code of Criminal Procedure. Mr. Bagchi points out that in this case, the telephonic information given by two Constables on patrolling duty, on the basis of which a G. D. was recorded at about 3 p. m. on that day, should be taken to be F. I. R. Mr. Bagchi contends that although the said information was telephonic, one cannot lose sight of the fact that the same was not given by any unidentified person. Bagchi contends that although the said information was telephonic, one cannot lose sight of the fact that the same was not given by any unidentified person. According to him, such information having been given by two Police Constables, specifically entrusted with the duty of patrolling, disclosing the incident of stabbing, a cognizable offence, should be construed to be the F. I. R. Mr. Bagchi points out that on the basis of such information over telephone, a G. D. was recorded and the police party proceeded for the spot to enquire. By referring to the G. D. Subsequently made by the investigating Officer on the selfsame day after coming back from investigation, he contends that after going to the spot the said Police Officer first had discussed with the initial informants, namely, the two Constables and thereafter some other persons were also interrogated but those persons could not give any detailed information about the alleged offence. According to the said G, D. , thereafter p. W. 4 appeared before the investing Officer and disclosed that he was the elder brother of the victim who took the victim to the hospital and his sfafemenf was recorded which was converted into F. I. R. By referring to the aforesaid fact, mr. Bagchi contends that the so-called F. I. R. , namely, the complaint lodged by p. W. 4, was therefore received after investigation had already started and several persons had already been examined. In such circumstances, Mr. Bagchi continues, the said written complaint cannot be treated as F. I. R. being hit by section 162 of the Code of Criminal Procedure. ( 15 ) MR. Bagchi next points out that the name of his client did not find place in the injury report written by the Doctor of the N. R. S. Hospital when the P. W. 4 had given the history of the injury. In the said injury report, the names of assailants were not mentioned but only a case of assault was recorded. By referring to the said report, Mr. Bagchi contends that if the deceased had really made dying declaration before his elder brother, the P. W. 4, on the way to Hospital disclosing the names of the accused, the informant while narrating the case history would surely disclose the names of those assailants before Doctor. Mr. By referring to the said report, Mr. Bagchi contends that if the deceased had really made dying declaration before his elder brother, the P. W. 4, on the way to Hospital disclosing the names of the accused, the informant while narrating the case history would surely disclose the names of those assailants before Doctor. Mr. Bagchi further submits that on the date of incident till registration of the formal F. I. R. at 7. 50 p. m. , the prosecution did not even think of bringing P. W. 3 and RW. 5 as eyewitnesses. Mr. Bagchi submits that if the P. W. 4 had come back from hospital and informed P. W. 3 and P. W. 5 about the death of the victim, there was no reason why he should not know the names of the actual assailants in spite of meeting mother and the widow of the victim first at the place of occurrence and then at the residence. The P. W. 4, however, did not disclose the names of the assailants even before the police nor did he inform the police that P. W. 3 and p. W. 5 are the eye-witnesses to the incident. Mr. Bagchi submits that omission to state to the Investigating Officer at 3. 30 that the mother and widow of the victim are the eye-witnesses to the incident should be treated as material omission so as to treat it as contradiction of the prosecution case. According to mr. Bagchi, for the purpose of projecting P. W. 3 and P. W. 5 as eye-witnesses to the incident, the prosecution has invented a case of second statement under section 161 of the Code by P. W. 4 on 23rd July, 1995, a day after the date of incident. ( 16 ) MR. Bagchi further draws attention of this Court to the evidence given by P. W. 4 indicating that in evidence he had stated that the F. I. R. was lodged in his residence, while the P. W. 14, the Investigating Officer, disclosed that such f. I. R. was taken immediately after arrival of the police force at the place of occurrence. According to Mr. Bagchi, the entire prosecution case is based on falsity and thus, this Court should totally reject the aforesaid story. ( 17 ) MR. According to Mr. Bagchi, the entire prosecution case is based on falsity and thus, this Court should totally reject the aforesaid story. ( 17 ) MR. Bagchi further draws attention of this Court to the sketch map filed by the prosecution showing the location of the place of occurrence and the surroundings. By referring to such sketch map. Mr. Bagchi contends that P. W. 5 has stated that the medicine shop is on the right hand side after coming out of their residence. But the sketch map shows that place of occurrence is on the left side if one comes out of that residence. By referring to the aforesaid statement made by the P. W. 5, Mr. Bagchi contends that the P. W. 3 and P. W. 5 had, thus, no occasion to go to the spot of occurrence even for the purpose of bringing medicine since the medicine shop, according to the said witnesses, is on the opposite direction. ( 18 ) MR. Bagchi further submits that in this case it appears from the evidence of P. W. 14, the First Investigating Officer, that he was asked to release the case diary on 15th August, 1995 in favour of the second Investigating Officer and he actually handed over the case diary on 4th September, 1995 but the next investigating Officer, the P. W. 15, prior to that date, had actually taken step for arresting his client who was already arrested in connection with another case. Mr. Bagchi contends that if the accused persons are known persons, there was no reason why the Investigating Officer did not visit the place of residence of the accused persons on the date of incident or at least within a day or two thereafter. He points out that in fact, all the accused persons were arrested after the second Investigating Officer had taken charge. He, thus, submits that the prosecution has falsely implicated the accused persons including his client in this case and prays for setting aside the order of conviction. ( 19 ) MR. Safiullah, the learned Public Prosecutor, has opposed all the aforesaid contentions raised by the learned Advocates for the appellants and had supported the order of conviction. ( 20 ) AS regards the legality of the F. I. R. at the instance of P. W. 4, Mr. ( 19 ) MR. Safiullah, the learned Public Prosecutor, has opposed all the aforesaid contentions raised by the learned Advocates for the appellants and had supported the order of conviction. ( 20 ) AS regards the legality of the F. I. R. at the instance of P. W. 4, Mr. Safiullah contends that earlier telephonic message received by the Police Station cannot be said to be definite information as to the commission of a cognizable offence and as such, the same cannot be treated as F. I. R. Mr. Safiullah submits that pursuant to such cryptic telephonic message, the Investigating Officer went to the spot of occurrence for the purpose of verifying the said telephonic message and arrived at the spot and got P. W. 4, who was the first person who could really disclose the incident to him. As regards examination of some other persons in the locality prior to taking statement from P. W. 5 Mr. Safiullah contends that those witnesses could not disclose anything about the incident and as such, that portion of examinations cannot be said to be the part of investigation so as to invalidate the Ext. 3 as F. I. R. In support of such contention Mr. Safiullah relies upon the decision of the Apex Court in the case of Ramesh Bavajijadeja v. State of Gujarat, reported in 1994 Cr LJ 3067 (SC) and also in the case of dhananjoy Chatterjee v. State, reported in 1994 C Cr LR 35 (SC ). ( 21 ) MR. Safiullah next contends that even if it is assumed for the sake of argument that the complaint lodged by P. W. 4 could not be treated as F. I. R. , for that reason the prosecution case should not fail. Mr. Safiullah contends that even in such a case, the Court should look into the evidence of P. W. 3 and P. W. 5, the eye-witnesses and also the evidence of P. W. 4, 6 and 8 who appeared immediately after the incident. If the evidence given by those persons are found to be reliable, Mr. Safiullah continues, there is no bar in upholding the conviction. ( 22 ) REGARDING the alleged discrepancies as regards location of the medical shop, Mr. Safiullah contends that P. W. 3 and P. W. 5 are illiterate Mohammedan ladies and as such, their evidence should be scrutinized liberally. Safiullah continues, there is no bar in upholding the conviction. ( 22 ) REGARDING the alleged discrepancies as regards location of the medical shop, Mr. Safiullah contends that P. W. 3 and P. W. 5 are illiterate Mohammedan ladies and as such, their evidence should be scrutinized liberally. According to him, merely because they are close relations of the victim, that fact alone cannot be a ground for discarding their evidence; on the other hand, Mr. Safiullah contends, their evidence should be relied upon as they are not supposed to falsely implicate innocent persons for the death of their near one. In this connection, Mr. Safiullah relies upon the following decisions of the Supreme court in support of the proposition that merely because the witnesses is a near relation of the victim, such evidence cannot be discarded : (a) State of Punjabv. Karnail Singh, reported in 2004 Supreme Court Cases (Cr)135; (b) Ashoke Kumar Pandeyv. State of Delhi, reported in 2002 Cr LJ 1844; ( 23 ) MR. Safiullah next contends that the prosecution in this case could not bring any other witnesses for the simple reason that the accused were notorious persons of the locality and were involved in illegal activities as would appear from the fact that they were also arrested in connection with other cases. Under such circumstances, according to him, it is very difficult for the prosecution to get other independent witnesses of the locality who are not willing to take risk of their lives for giving evidence against those dangerous persons. Mr. Safiullah, thus, prays for dismissal of the present appeals. ( 24 ) THE first question that falls for determination in this appeal is whether the learned Sessions Judge was justified in proceeding by treating Ext. 3, the complaint lodged by P. W. 4 as F. I. R. ( 25 ) F. I. R. is one of the modes by which a person may put the criminal law into action by giving information of commission of a cognizable offence under section 154 of the Code of Criminal Procedure. The information so given is called "first Information" because it is the basis upon which an investigation is commenced under Chapter XII of the Code. The information so given is called "first Information" because it is the basis upon which an investigation is commenced under Chapter XII of the Code. However, the receipt and recording of information is not a condition precedent for the setting in motion of criminal proceedings and such information need not necessarily be given by a person having the first hand knowledge of the fact and may be just hearsay. Similarly, the mere fact that the information given by the informant was not properly recorded by the Police Officer in accordance with the mandate of Section 154 of the Code, it cannot be said that no investigation in law could commence. The information so given need not be in minute details. The object of Section 154 of the Code is twofold : ( 26 ) FIRST, to forthwith inform the Judicial Officer before whom the case will be ultimately tried, the facts given immediately after the occurrence and the materials on which the investigations commenced. ( 27 ) SECONDLY, to protect the accused against the subsequent variations and additions of the improved allegations that may be hatched. ( 28 ) WHETHER a particular statement is an F. I. R. or not is important in the sense that if such statement is made really in terms of Section 154 of the Code, it becomes admissible in evidence, though, not a substantive piece of evidence; whereas if the same is recorded after the investigation under Chapter XII of the code has commenced, it should be treated to be a statement under Section 161 of the Code and is not admissible except for the purpose of contradiction as mentioned in Section 162 of the Code, subject of course, to the provisions contained in Sections 27 and 32 of the Evidence Act. ( 29 ) KEEPING in mind the aforesaid broad propositions of law, I now proceed to consider the materials placed before the Court in this case. ( 30 ) IT appears from the record that on the date of incident, namely, July 22, 1995 at 15. 00 hrs. , the Park Street Police Station received an information over telephone from the Constable No. 490 who was booked for "watching duty" along with Constable No. 1958 at Aiimuddin Street, Ripon Street etc. , that one person received stabbing injury in front of 12, Ripon Square, Calcutta-16. 00 hrs. , the Park Street Police Station received an information over telephone from the Constable No. 490 who was booked for "watching duty" along with Constable No. 1958 at Aiimuddin Street, Ripon Street etc. , that one person received stabbing injury in front of 12, Ripon Square, Calcutta-16. On the basis of the aforesaid telephonic information, a G. D. being G. D. No. 2267 was recorded and Sub-inspector K. K. Patra with Sub-Inspector S. Rahaman and available force left for the spot to ascertain the fact. The said G. D. is marked as Ext. 11. it further appears from record that pursuant to the aforesaid G. D. , the Police Force arrived at the spot of occurrence at about 15,15 hrs. and noticed that some people assembled there is groups and most of the shops were closed on seeing the police. The aforesaid two Police Constables who gave telephonic information namely, Swapan Guha Roy and Nirmal Das Gupta, arrived before the Police Force and stated that one person was removed to hospital with severe injuries in front of 12, Ripon Square. It further appears from record (Ext. 12) that the Investigating Officer, thereafter examined several persons including (1)Saharuddin Ahmed (Joy), son of Nasiruddin Ahmed of Alimuddin Street, (2)Hyder All (40 yrs.) son of Basir Mia of 19, Alimuddin Street, (3) Md. Siraj (30 yrs.) son of Md. Munna of alimuddin Street and he could learn that they had heard that one person had been stabbed and removed to hospital. It further appears from the aforesaid Ext. 12 that at that time while enquiry was going on, one person carne to the investigating Officer and identified himself as Md. Nasim and stated that his brother Nurui Islam had been brutally murdered by Firoz, kol and others. Accordingly, the Investigating Officer examined him and on the basis of his statement Ext. 3 was drawn up. Subsequently, the services of D. D. experts were utilized and alamats were seized from the spot in tne presence of witnesses. The investigating Officer then went to N. R. S. Hospital and again came back to the spot and conducted raid at all probable hide outs of the accused but to no effect. 3 was drawn up. Subsequently, the services of D. D. experts were utilized and alamats were seized from the spot in tne presence of witnesses. The investigating Officer then went to N. R. S. Hospital and again came back to the spot and conducted raid at all probable hide outs of the accused but to no effect. Subsequently, on returning to the Police Station, the Investigating officer on the basis of the statement of Nasim drew up formal F. I. R. and the entire proceedings of investigation done oy the investigating Officer on thai day were recorded as a G. D. being Ext. 12. ( 31 ) FROM the aforesaid two exhibits, viz. Ext. 11 and Ext. 12, it is clear that the First Telephonic Information received by the Police Station was through two named Constables on watch-duty at the relevant place and on the basis of such information, after recording such telephonic message as a G. D. , the Investigating officer left for the spot. Even after arriving at the spot, he got further information from the aforesaid two Constables about the incident and then he examined three different persons who only could disclose that they had heard that a person had been stabbed and taken to hospital but could not disclose the names of the assailants although all the accused are, according to the prosecution, known persons of the locality. Therefore, it is apparent that after reaching the spot of occurrence while examining different persons, Md. Nasim, P. W. 4, was the sixth person who was examined during investigation. The first two were the Constables who reiterated their statement in person and thereafter three persons mentioned above were examined. It is now settled position of law that even after getting information of the commission of a cognizable offence by telephonic message if a G. D. is recorded and thereafter the Police Officer reaches the spot and starts investigation by examining different persons, the sixth person so examined cannot be described to be the "first Information" and his statement cannot be treated as an F. I. R. His statement was definitely taken during investigation after the Officer-in-Charge had reached the place of occurrence and had earlier talked to five named persons. It is not the law that after reaching the spot of occurrence so long an Investigating Officer does not come across a witness who can name any assailant, the investigation does not commence. At this stage, it will be profitable to refer to a decision of the Supreme Court in the case of Superintendent of Police, CBIv. Japan Kumar Singh, reported in AIR 2003 sc 4140 :2003 C Cr LR (SC) 570 where the Apex Court in clear terms approved the proposition of law that a G. D. recorded on the basis of a mere telephonic message can even be treated as F. I. R. if such information discloses commission of a cognizable offence. In paragraph 20 of the said judgement, the Supreme court made the following observations :"it is well settled that a First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye-witness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the Police Officer to suspect the commission of a cognizable offence. At this stage it is enough if the Police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned Police Officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it disclose full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the Investigating Officer is not absolved of his duty to investigate the case and discover the true facts, if he can. " ( 32 ) EVEN earlier, in the case of State of A. P. v. Punati Ramalu, reported in air 1993 SC 2644 the Apex Court deprecated the practice of ignoring the "first information" received to the Police Station and of recording the so-called F. I. R. subsequent to commencement of investigation after going to the spot of occurrence. In the said case, although the officer-in-charge of the Police Station received information about the commission of murder from a constable, the same was not recorded as a G. D. The officer-in-charge, however, without recording the G. D. proceeded to the place of occurrence and after reaching the spot accepted a written complaint alleged to have been written earlier and refused by the Police Station on the ground that the officer-in-charge had already received the information and had left for the place of incident and that the said police Station had no territorial jurisdiction over the place of occurrence. Under such circumstances, the Supreme Court approved the finding of the High Court that the said complaint could not be treated as F. I. R. as the same was received by the Police Officer subsequent to the initiation of investigation after due deliberations and discussions with the witnesses. In the case before us, we have already pointed out that a G. D. disclosing commission of a cognizable offence had already been lodged and on the basis of the said G. D. the police went to the spot and examined three witnesses of the locality over the incident and the P. W. 4 was the fourth man examined by the Investigating Officer apart from the two constables who informed the Police Station about commission of the offence of stabbing. Thus, the statement of Nasim was definitely hit by Section 162 of the Code of Criminal Procedure. ( 33 ) IN the case of Dhananjoy Chatterjee v. State of West Bengal (supra), relied upon by Mr. Safiullah, it was pointed out by the Apex Court that if a vague and indefinite information is given on the telephone which prompted the investigating Agency only to rush to the scene of occurrence, such telephonic message could not be treated as an F. I. R. when there was unchallenged statement of the Investigating Officer to the effect that he started investigation only after recording the statement of P. W. 3 in that case and in such a situation, the statement of the said P. W. 3 should be treated as F. I. R. In the case before us, after arriving at the place of occurrence the Investigating Officer examined three different persons apart from the two Police Constables who informed the incident over telephone and P. W. 4, the brother of the victim was the fourth man examined in the process of investigation. That the Investigating Officer examined three named persons noting down their names, ages and addresses will appear from the G. D. recorded by the Investigating Officer himself being Ext. 12. Therefore, we cannot exclude the examination by the Investigating Officer of those three witnesses examined prior to P. W. 4, In the case of Dhananjoy chatterjee (supra), statement of P. W. 3 therein was made first and thereafter the Investigating Officer started investigation. 12. Therefore, we cannot exclude the examination by the Investigating Officer of those three witnesses examined prior to P. W. 4, In the case of Dhananjoy chatterjee (supra), statement of P. W. 3 therein was made first and thereafter the Investigating Officer started investigation. But in the case before us, P. W. 4 was examined after examination of at least three persons of the locality and as such, the principles laid down in that case cannot have any application to the facts of the present one. ( 34 ) SIMILARLY, in the case of Ramsinh Bavaji Jadeja v. Sfate of Gujarat (supra), the other decision cited by Mr. Safiullah, the injured body of the victim was brought to hospital by his brother, an eye-witness. The Head Constable on duty at the hospital informed the Police Station on telephone about the arrival of the dead body at the hospital. Having received the said telephonic message, the investigating Officer immediately reacned the hospital and he first recorded the statement of the brother of the deceased who took him to the hospital and sent the statement to the City Police Station for registering a case. Thereafter, he held the inquest on the dead body, sent the dead body for post-mortem and did other necessary duties. Under the aforesaid circumstances, the statement of the brother of the deceased, which was recorded by the Investigating Officer after reaching the hospital was held to be F. i. R. and not the cryptic telephonic message sent by Head Constable. I have already pointed out that in this case the P. W. 4 was not the first person examined by the police at the place of incident and as such, the decision in the case of Ramsinh Bavaji Jadeja (supra), has no application to the facts of the present case. ( 35 ) I am, therefore, of the view that Ext. 3 cannot by any stretch of imagination be treated to be F. I. R. as the said Ext. 3, is the recorded statements of the forth person examined by the Investigating Officer after the commencement of investigation even if we ignore the examination of the two Constables. ( 35 ) I am, therefore, of the view that Ext. 3 cannot by any stretch of imagination be treated to be F. I. R. as the said Ext. 3, is the recorded statements of the forth person examined by the Investigating Officer after the commencement of investigation even if we ignore the examination of the two Constables. ( 36 ) I am, however, quite conscious of the position of law that merely because the prosecution based investigation by treating a statement recorded under section 161 of the Code during investigation as F. I. R. , such fact by itself cannot justify dismissal of the prosecution case. However, the prosecution case in such a situation should be scrutinised with caution. ( 37 ) I, therefore, proceed to examine the evidence adduced by the prosecution in support of its case and to ascertain whether conviction given by the learned Sessions Judge can be upheld on the basis of evidence adduced by the prosecution. ( 38 ) IN this case Tahera Bibi, P. W. 3, the mother of the victim and Sakila banu, P. W. 5, the widow of the victim have claimed to be the eye-witnesses to the incident. Apart from the aforesaid fact, as pointed out earlier. Md. Nasim, p. W. 4, Smt. Sultani Begam, P. W. 6, the wife of P. W. 4 and Sanjita Khalein, P. W. 8, the sister of the victim alleged that they arrived at the place of occurrence immediately after tne incident when Kol, one of the accused informed them in their residence that the victim had been murdered. ( 39 ) RW. 3 in her evidence stated that her younger son. the victim, was involved in 'satta' business and Md. Kol, Chand, Firoz and Dillu, the accused in this case were his associates. According to this witness, tnose four persons used to visit the house of the victim in connection with business of 'satta'. The said witness stated that about four days prior to tne date of occurrence, the accused persons being accompanied by four others came to her house and had altercations with the victim and they threatened him with dire consequences over his 'satta' business. It is further stated that they demanded money from the victim but the victim expressed his inability to pay. It is further stated that they demanded money from the victim but the victim expressed his inability to pay. The said witness stated that the victim was suffering from fever and as such, did not go out for his business on the day of occurrence. On that day at about 1. 30 p. m. , P. W. 3 and p. W. 5 went out of their residence to fetch medicine for him and victim was then lying in the bed. According to the said witness, when she along with P. W. 5 was coming back after taking medicine from Ripon Street they found tnat those four accused persons were assaulting the victim on the footpath in front of 12, Ripon square. These witnesses specifically stated that Kol and Firoz assaulted with razor while Dillu and Chand with Chopper on the head, on the body and on the legs of the victim. She further pointed out that the place of occurrence was in front of a Beef Shop of Nizam. According to her, the accused persons were all known persons. The said witness further stated that on seeing the assault of the victim, she and P. W. 5 raised hue and cry but the accused persons continued their assaults. It is further stated that on Hearing the alarm raised by them, ner elder son with his wife and younger daughter viz. , P. W. 4, P. W. 6 and P. W. 8 came there and the accused persons fled away from the spot. P. W, 4 then took the injured person who was still alive in an auto-rickshaw and she almost became unconscious on seeing the incident and P. W. 6 took her to her residence. The said witness further stated that after sometime RW. 4 came back from tne hospital and reported that his brother was no longer aiive. P. W. 4 further reported to her that Kol had come inside there house and caiied the victim and took him outside. According to her, P. W. 6, and P. W. 8 also reported that Koi came to their house to call the victim and Chand, Dillu and Firoz were waiting outsiae. ( 40 ) IN cross-examination, she stated that document regarding her purchase of medicine was not seized by police as those were lost at the time of occurrence. According to her, P. W. 6, and P. W. 8 also reported that Koi came to their house to call the victim and Chand, Dillu and Firoz were waiting outsiae. ( 40 ) IN cross-examination, she stated that document regarding her purchase of medicine was not seized by police as those were lost at the time of occurrence. In cross-examination, she, however, stated that she did not mention in her statement before police that they were coming from Ripon Street and she also did not state before the police that the occurrence had taken place in front of 12, ripon Square. She further stated that she did not come to the house of the accused persons on any occasion after the occurrence. She denied the suggestion of the accused persons that she did not come out of her house for purchasing fruit and medicine or that there is a shop very near to the place of her residence. ( 41 ) RW. 5, the widow of the victim, also corroborated the statements of her mother-in-law that on the date of occurrence her husband was lying sick and at about 1. 30 p. m. She along with her mother-in-law went to fetch medicine and fruits for him. She reiterated that while they were returning after collecting medicine and fruits, they found that the victim was being assaulted. She, however, stated that her husband was being assaulted by Kol, Firoz, Chand, Dillu and four or five others standing near the shop of Nizam alias Nazim at No. . 12 Ripon square. She further stated that the victim was assaulted with Chopper and razor and Dillu and Chand had Choppers while Kol and Firoz had razors with them. She further stated that both she herself and her mother-in-law shouted and cried but her husband was severely assaulted and his face was also defaced. According to her, at that time P. W. 4, RW. 6 and P. W. 8 came running to that place and thereafter P. W. 4 took her injured husband in an auto-rickshaw. She has also reported the fact that the accused persons used to come to their residence. It is also stated that they demanded money from her husband and threatened him with dire consequences. 6 and P. W. 8 came running to that place and thereafter P. W. 4 took her injured husband in an auto-rickshaw. She has also reported the fact that the accused persons used to come to their residence. It is also stated that they demanded money from her husband and threatened him with dire consequences. In cross-examination, she denied the fact that she did not come out of her house on the date of occurrence for the purpose of purchasing medicines and fruits. In cross-examination, she stated that the medicine shop from which they collected medicine was located straight from their house. She further stated that she had no sense of direction like north, South, East and West but she knew the direction of right and left. According to her, after coming out of their house they went towards the right for medicine shop. She further stated that Cash Memos and Papers for medicine were spoiled at the time of occurrence. In cross-examination, she further stated that she did not come to the hospital on the date of occurrence and she was not taken to hospital by her mother-on-law and P. W. 4. She further stated that she did not describe the physical features of the accused before the police. She further stated that the Police Officer did not take her to the house of Firoz nor did he ask the name of Doctor under whom the husband was being treated. She further stated that the Police Officer also did not take her to the place wherefrom she purchased the medicine and fruits nor was she asked the name of the medicine shop and the seller of the fruits. ( 42 ) P. W. 4, the maker of Ext. 3 stated in his evidence that on July 22,1995 at about 1. 45 in the afternoon he came back to the house for taking his day-meal. When he was about to enter the "galli" leading to his premises, Kol came behind him and asked him about his brother. On his query, he replied that the victim was not there and he went upstairs. Kol followed him. His wife and younger sister were at that time preparing food and accused Kol asked is sister whether nuru was there. The sister replied that the victim was not there. On his query, he replied that the victim was not there and he went upstairs. Kol followed him. His wife and younger sister were at that time preparing food and accused Kol asked is sister whether nuru was there. The sister replied that the victim was not there. Then accused looked at downstairs and identified the chappals of the victim saying that Nuru must have been there and then he came downstairs and brought out Nuru towards the galli. His wife and sister followed them and after sometime his wife came and reported that at the end of galli she found Chand, Firoz, Dillu, Kol, nuru and four or five others went towards Tari Khana. According to this witness, after sometime Kol again came back and reported that Chand, Firoz, Dillu and their companions killed his brother and then Kol came down. According to P. W. 4, he and his wife and sister followed him but when they came on the ground floor Kol had disappeared. Then they went to the Tari Khana and found a big gathering there and also found that her mother and brother's wife were shouting in front of meat shop. He further found that the victim was lying on the ground and writhing and groaning and there was pool of blood all over his body and the place where he was lying. He immediately lifted him to an-auto rickshaw and took him to N. R. S. Hospital. According to the witness, on the way to hospital, nuru told him that he was assaulted by Firoz, Chand, Dillu and Kol with the help of razors and choppers. The Doctor in the Hospital took the victim in a trolley to the upper floor and asked him to get the admission card etc. from the out-door emergency and after getting the papers he went up and found that his brother was laid on a trolley and the Doctor reported to him that the victim had already expired. According to the said witness, the Doctor gave him the papers and asked him to go down and he left Hospital for his house. The witness further said that on coming to his house he found that the policemen from local Thana were there. He was asked by the Police Personnel to lead the Police party to the place where he was assaulted. The witness further said that on coming to his house he found that the policemen from local Thana were there. He was asked by the Police Personnel to lead the Police party to the place where he was assaulted. He made statements before police who recorded his statement and the same was read over and explained to him in Hindi. At that time, as the conditions of his mother and brother's wife were very precarious, the police brought him out of his house and went to the place of occurrence. On the advice of the police, he went back to his house to console his mother and brother's wife and when he went to his mother, she enquired of him about the condition of Nuru and he reported that Nuru was dead. Then his mother told him that when she with his brother's wife was coming back after collecting medicine from the shop they found the accused persons assaulting the victim. When his mother reported this fact to him, the police had already left after recording his statement and so he made this part of the statement on the next day i. e. on 23rd July before the police. In cross-examination this witness stated that the police recorded his statement on the date of occurrence at about 4. 30 p. m. and at that time he was on the ground floor room and the other family members were also in the said room although they were severely shocked. He admitted that he did not make any statement before the police that the condition of the parents became very precarious due to the death of his brother. In cross-examination P. W. 4 admitted that after coming out of their house through a galli, one had to take left turn and then go straight to reach the place of occurrence. He further admitted that his brother was under the treatment of a Doctor who gave prescription and his mother went to collect medicine as per the prescription. The said prescription was spoiled due to rain as his mother reported to him. ( 43 ) SULTANI Begam, the P. W. 6, the wife of P. W. 4, has corroborated the statements of the other witnesses regarding purchase of medicine by her mother-in-law and sister-in-law. The said prescription was spoiled due to rain as his mother reported to him. ( 43 ) SULTANI Begam, the P. W. 6, the wife of P. W. 4, has corroborated the statements of the other witnesses regarding purchase of medicine by her mother-in-law and sister-in-law. According to her, she and the sister of her husband came down from the upstairs and followed Kol on the date of incident. At that time, they found four accused persons went towards Tari Khana. Subsequently, Kol came back and reported that Firoz, Chand and Dillu with others killed Nuru. According to this witness, after the victim was admitted to N. R. S. Hospital and she and her sister-in-law escorted her mother-in-law and the victim's wife to their house but she had no talk with her mother-in-law. According to this witness, the husband came back from the hospital and informed that nuru was dead, and her mother-in-law fell ill. She had denied the suggestion that she was telling a lie before Court. ( 44 ) SANJIDA Khatun, P. W. 8, is the sister of the deceased, who used to reside in the house along with other members of the family. She has also reiterated the statement of the other witnesses that a few days prior to the date of the incident, the accused persons and four or five others came to their house and demanded money from Nuru and at that time they threatened him and left. She has also corroborated the statement of P. W. 4 that Kol asked her whether nuru was in the house and thereafter, seeing the chappals of Nuru, he detected that Nuru was in the home and took him out of residence. She has further stated that subsequently she found that Firoz, Chand, Diliu and four or five others were going towards Tari Khana with the victim. He has reiterated the same statement that Kol subsequently came back and reported that Firoz, Chand and Dillu had killed Nuru and hearing that they immediately rushed towards Tari khana. ( 45 ) P. W. 11 is the Doctor of the N. R. S. Hospital who admitted the patient at the instant of P. W. 4. He has reiterated the same statement that Kol subsequently came back and reported that Firoz, Chand and Dillu had killed Nuru and hearing that they immediately rushed towards Tari khana. ( 45 ) P. W. 11 is the Doctor of the N. R. S. Hospital who admitted the patient at the instant of P. W. 4. In his evidence he stated that according to P. W. 4 the incident occurred at 2 p. m. on 22nd July, 1995 and the said party gave out a history of assault and he admitted the patient through emergency slip. He proved ext. 8 and Ext. 9. ( 46 ) P. W. 13 is also a Doctor who held post-mortem examination of Nur islam. He has proved his post-mortem report and stated that there were seventeen different injuries on the body. The said P. W. opined that the death was due to effect of injuries described in the post-mortem report and those injuries were sufficient to cause death in the ordinary course. According to him, the injuries were caused by moderately heavy sharp cutting weapon like chopper, axe and Dao and according to him his opinion was corroborated by the Professor and the Head of the Department. In cross-examination on behalf of Dilwar, he denied the suggestion that the injuries were not caused by moderately heavy sharp cutting weapons like chopper, axe and Dao. ( 47 ) P. W. 14 is the First Investigating Officer who started the investigation on the date of incident. He has stated in his evidence that on the date of incident at 3 p. m. he was informed by the constable on duty regarding a telephonic message received at 3 p. m. containing information that one person received stabbing injuries in front of 12, Ripon Square. According to him, Shri B. Mazumdar, sub-inspector of Police was then Duty Officer of the Police Station and he recorded the said information by G. D. which was marked Ext. 11. On receipt of the said information, he being accompanied by B. Mazumdar and S. Rahaman, both Sub-inspector of Police, P. S. Chowdhury, O. C. Park Street and N. K. Bhattacharjee, Additional O. C. Park Street went to the crossing of Nabab Abdul latif Street and Alimuddin Street. The constable reported to them that he got the telephonic message from a passer-by. On an enquiry from the local people, one Md. The constable reported to them that he got the telephonic message from a passer-by. On an enquiry from the local people, one Md. Nasim, said to be the brother of the injured, came and reported the incident to them. He also took him to the spot, that is, the north footpath of ripon Square near Nizim's Beef Shop. He accordingly cordoned the place of occurrence and examined Md. Nasim on the spot and recorded his statement under order of officer-in-charge, Park Street Police Station. According to the said witness, he then requisitioned for service of plan maker and photographer from Lai Bazar and also seized the alamats. He further stated that he examined several persons namely, Hyder AN, Sharuddin Ahmed, Md. Siraj but they could not say anything regarding the incident. Then he went to N. R. S. Medical College and after going there he ascertained that the death certificate and medical certificates were already sent to Entally Police Station from the hospital. Thereafter, he again came back to the place of occurrence and conducted search for assailants. He also instructed plan maker and photographers and returned to the Police Station. According to him, the statement of Md. Nasim, the P. W. 4 was recorded by him at 3. 30 p. m. and he read over the contents to him and thereafter the P. W. 4 put his signature. On returning to the Police Station he filled up the formal F. I. R. in prescribed form. He also diarised the entire incident and actions taken by him in the G. D. Book vide the entry No. 2683 dated 22nd july 1995 being Ext. 12. On the next day, he sent one requisition to O. C. Entally for holding inquest and post-mortem examination on the dead body and also to hand over the dead body to his brother namely, RW. 4. He also examined Sakila banu, P. W. 5, Sanjida Khatoon, P. W. 8, Sultani Begam, RW. 6 and Md. Nasim on 23rd July, 1995. He recorded the statements only of Sakila Banu and Md. Nasim but could not record the statements of Sanjida and Sultani as during narration of incident they frequently fainted. According to him, on that day he again went to the house of Nur Islam and his parents and recorded their statements. 6 and Md. Nasim on 23rd July, 1995. He recorded the statements only of Sakila Banu and Md. Nasim but could not record the statements of Sanjida and Sultani as during narration of incident they frequently fainted. According to him, on that day he again went to the house of Nur Islam and his parents and recorded their statements. ( 48 ) IT is further stated on 24th July, 1995 he again went to the spot and examined several local people but none of them told that they witnessed the incident and so he recorded the statement only one of them namely, Tajamul hossain. He also had been to the house of Nur Islam and recorded the statement of Sanjida Khatoon and Sultani Begam. Ultimately, on 15th August, 1995 he received a message for handing over the Case Diary to D. D. Lal Bazar and accordingly he handed over the charge and sent the Case Diary to D. D. Lai bazar on September 4,1995. ( 49 ) IN cross-examination this witness specifically stated that he did not arrest any of the accused in connection with this case. He further stated that he did not record any statement of the two Constables namely, Swapan Guha and nirmal Das Gupta who communicated the information about the incident. He has further stated that he recorded the statement of one Tajamul Hossain of 12. Ripon Square and he also examined a number of inhabitants of the said premises. He has further stated that he did not examine any medical shop owner nor did he question any person of Ripon Street. ( 50 ) IN cross-examination the Investigating Officer further stated that RW. 4 did not say before him that while he was going towards Tari Khana he found that the mother and his brother's wife were shouting loudly. According to him, RW. 4 also did not state the names of Chand and Dillu in the statement recorded before him on 22nd July, 1995 and it was stated before him by RW. 4 that Kol again come back to him in the first floor, but he did not specifically mention the names of Chand and Dillu as the persons who killed his brother. ( 51 ) IN cross-examination by Firoz, he has specifically admitted that it was not the statement of Md. 4 that Kol again come back to him in the first floor, but he did not specifically mention the names of Chand and Dillu as the persons who killed his brother. ( 51 ) IN cross-examination by Firoz, he has specifically admitted that it was not the statement of Md. Nasim recorded on 22nd July, 1995 that his wife came back from the galli and reported that the accused persons took his brother Nuru towards Tari Khana. According to him, Nasim did not refer to any chappal belonging to Nuru as lying on the spot having 2/3 drops of blood. He has further stated that it did not appear from the statements of Md. Nasim recorded on 23rd july 1995 that after police left the place of occurrence on 22nd July, 1995, his mother reported some more incidents to him for which he made the subsequent statement on 23rd July, 1995. It was also not recorded in the statements of Md. Nasim that he knew the accused persons and their family members as they are all "para boys". The Investigating Officer further stated that Sakila Banu did not specifically mention the names of Chand and Dillu in her statement or that Kol came to their house for the second time and reported that Nuru was killed by firoz and his associates. He has further stated that Sultani Begam did not say that her husband was reported by her mother-in-law that while she was returning after collecting fruit and medicine, they found the accused persons assaulting nuru with choppers and razors. According to the said Investigating Officer, RW. 8 did not specifically say that when Nuru was taken by Kol away from the house, her Baro Bhabi also came down and followed up to the galli and thereafter Baro bhabi reported the matter to her husband that Nuru was taken away towards tari Khana. In cross-examination on behalf of the two accused viz. Chand and kol, the Investigating Officer stated that he met two constables Swapan Guharoy and Nirmal Dasgupta at Sobjimore. When they reached there, they were on patrolling duty in the area. According to him, they reported regarding the incident of stabbing, but without specifically mentioning the person stabbed or the person who stabbed. ( 52 ) RW. 15 is another Sub-inspector of Police to whom charge of investigation was transferred by the order of the Superior Officer. When they reached there, they were on patrolling duty in the area. According to him, they reported regarding the incident of stabbing, but without specifically mentioning the person stabbed or the person who stabbed. ( 52 ) RW. 15 is another Sub-inspector of Police to whom charge of investigation was transferred by the order of the Superior Officer. In his evidence he has stated that on 31 st July, 1995, he took up charge of investigation and on that day, he went to Park Street Police Station, perused the F. I. R. , and noted down the particulars of the case. He further stated that on that day he also went to the premises of the victim and met the complainant and other family members and came to learn that their statements had once been recorded by P. W. 14. According to him, on 2nd August, 1995 he collected the particulars of the accused persons on source information and arrested the accused Kol. After arrest, he brought him to the Office of Lal Bazar. According to him, on 4th August. 1995 in police Custody Kol made statement before him that his wearing apparels of 22nd July, 1995 were kept in his house and pursuant to that statement he intended to take him to his residence but ultimately he refused. On 15th August, 1995 Kol again stated before him that if he was taken to the place where he kept the wearing apparels, he would be able to discover the same and pursuant to that statement he was taken to his house and his mother produced those wearing apparels on his request. The P. W. 15 seized his shirt and pant. Subsequently, on 25th August, 1995, he got information from the source that Md. Firoz and md. Chand were being produced in Court of learned C. M. M. Calcutta in connection with a Park Street P. S. Case No. 361. Thereafter, he submitted a prayer before the C. M. M. Calcutta for showing them arrested in connection with this case and such prayer was allowed. Subsequently, on 21st September, 1995 he was informed that Sk. Dilwar was in Judicial Custody in connection with Taltola P. S. Case under N. D. P. S. Act and thereafter on his prayer before the learned C. M. M. for showing him arrested, he took him into the Police Custody. Subsequently, on 21st September, 1995 he was informed that Sk. Dilwar was in Judicial Custody in connection with Taltola P. S. Case under N. D. P. S. Act and thereafter on his prayer before the learned C. M. M. for showing him arrested, he took him into the Police Custody. In cross-examination he has admitted that he got the Case Diary On 4th september, 1995. ( 53 ) FROM the aforesaid statements made by the prosecution witnesses, I first propose to consider whether in the fact of the present case, P. W. 3 and P. W. 5, the mother and widow of the victim respectively, were really the eye-witnesses of the incident and whether P. W. 4, P. W. 6 and P. W. 8 had spoken the truth before the Court as regards prior threatening by the accused and appearance of Kol twice in their house on the date of incident. ( 54 ) FROM the aforesaid evidence it is apparent that P. W. 4, P. W. 6 and P. W. 8, all stated in Court that on the date of incident Kol came back for the second time to inform that three other named accused persons had killed the victim. It is their case that when they arrived at the spot they found that P. W. 3 and P. W. 5 were shouting but the accused had left. P. W. 4 undisputedly took the deceased to the Hospital and according to him on the way to hospital in auto rickshaw the victim told him that the four accused persons had killed him. If we believe the aforesaid statement of P. W. 4, in such a case, it would have been natural that p. W. 4 would have mentioned the names of all the four accused persons before the Doctor In N. R. S. Hospital while narrating the history of the assault but for the reasons best known to him, he did not disclose any name. Even long thereafter when the Police Officer came to record his statement, which according to Police Officer was at 3. 30 p. m. whereas according to P. W. 4, at 4. Even long thereafter when the Police Officer came to record his statement, which according to Police Officer was at 3. 30 p. m. whereas according to P. W. 4, at 4. 30 p. m. , he did not mention the names of Dillu or Chand at all but only the name of Firoz as assailant and Kol's name was mentioned not as assailant but because of the fact that Kol took Nuru from his house. If by that time the victim had already told him that Kol was one of the assailants, such fact ought to have reflected in the said statement. ( 55 ) IT further appears that while RW. 4 stated that the Police Officer took his statement viz. Ext. 3, in his residence after he came back from hospital and thereafter they asked him to locate the spot, but the Investigating Officer, namely, p. W. 14 recorded in Ext. 12 that at the spot after examining five persons including the two constables. Nasim came forward and described himself to be the brother of the victim. The Police Officer has not mentioned that on that day they went to the house of the victim to record the statement. Although, P. W. 4 in his evidence tried to explain the omission by saying that after giving statement before police when he came back to his home he came to know from his mother and brother's wife that those four persons killed Nuru and as such, the said fact was reported to police on the next date, i have already indicated that RW. 4, RW. 6 and RW. 8, all the three persons stated in their evidence that they came to know from Kol that Firoz, Dillu and Chand murdered Nuru. Therefore, there was no reason why the names of Chand and Dillu were not stated before police on the date of incident. Moreover, RW. 3 and RW. 5 have claimed themselves to be the eyewitnesses and stated that RW. 4 in their presence had removed nuru to Hospital. It is, therefore, natural that if RW. 3 and RW. 5 had really seen the occurrence they would have definitely informed Nuru at once that those "four known persons" had killed him. Moreover, RW. 3 and RW. 5 have claimed themselves to be the eyewitnesses and stated that RW. 4 in their presence had removed nuru to Hospital. It is, therefore, natural that if RW. 3 and RW. 5 had really seen the occurrence they would have definitely informed Nuru at once that those "four known persons" had killed him. Therefore, there was no necessity of his going to the Police station on the next date to report that as he subsequently came to know from his mother and brother's wife that they had seen that the four accused persons had killed him, he again came to the Police Station to inform such fact. Moreover, the Investigating Officer, the P. W. 14, has specifically stated that on the next date namely July 23, 1995, the P. W. 4 did not state that as his mother subsequently told him that the incident had occurred in their presence, he came to report such further fact. Therefore, in the absence of any earlier statement, the said evidence cannot be taken into consideration due to contradiction on account of omission on a vital point. ( 56 ) IT is clear from the evidence that RW. 4 before taking the victim to hospital had met RW. 3 and RW. 5 and after coming back from hospital also reported to the mother and widow of the victim that the injured person had died. Thus, it is preposterous to suggest that mother and widow will not tell him that the accused persons had killed him. Moreover, the RW. 3 in her evidence has clearly stated that when she and her daughter-in-law were shouting for help, the accused persons, meaning all the four accused, continued their assault and after RW. 4, rw. 6 and RW. 8 came to the spot, the accused left. If I accept this statement to be true, then it is impossible to believe the statement of P. W. 4, P. W. 6 and p. W. 8 that Kol had gone to their house and informed that Firoz and his associates had killed him and thereafter they came to the place of occurrence. If I accept this statement to be true, then it is impossible to believe the statement of P. W. 4, P. W. 6 and p. W. 8 that Kol had gone to their house and informed that Firoz and his associates had killed him and thereafter they came to the place of occurrence. ( 57 ) IN this connection, I find substance in the contention of learned advocates for the appellants that even if I assume for the sake of argument that mother and widow of the victim fell ill there was no reason for not disclosing the names of all the accused persons before the police on the date of incident when it is the definite case of the P. W. 4 that the Ext. 3 was recorded in their house. ( 58 ) I further find from the evidence given by P. W. 3 and P. W. 5, the alleged eye-witnesses that they went to fetch medicine and fruit for ailing Nuru. These witnesses have also admitted the existence of prescription but according to them, the same was spoiled or lost. The prosecution could not give any evidence indicating the location of the medicine shop or the name of the Doctor under whom Nuru was being treated. Even from the evidence of the witnesses it appears that they gave contradictory statements in their evidence regarding location of the medicine shop or the place of occurrence. It is rightly pointed out by learned Counsel appearing on behalf of the appellants that if the accused persons were actually seen by the P. W. 3 and P. W. 5 to commit the murder and p. W. 4 had heard their names from the victim on the way to hospital, the police would have gone to their residence for arresting them on the very date of incident. It appears that the police did not go to the residence of the accused persons, although according to the prosecution witnesses they are "para boys". Such fact indicates that on the date of incident nobody could say the names of the actual assailants. Although, P. W. 6 and P. W. 8 had stated in evidence that Kol disclosed the names of Firoz, Dillu and Chand on the date of incident as assailants of the victim, the Investigating Officer has admitted that no such statement was made under Section 161 even on 24th July, 1995. Although, P. W. 6 and P. W. 8 had stated in evidence that Kol disclosed the names of Firoz, Dillu and Chand on the date of incident as assailants of the victim, the Investigating Officer has admitted that no such statement was made under Section 161 even on 24th July, 1995. I have also noticed that P. W. 5 mentioned that victim was assaulted by the four accused persons and four of five others while P. W. 3 only mentioned the name of the four accused persons. ( 59 ) ON consideration of the entire materials on record, I am of the firm opinion that if P. W. 3 and P. W. 5 were the really eye-witnesses, such fact would have been mentioned in the statement made by P. W. 4 before the police on the date of incident. Even on that very day, those two witnesses could say such fact before police. Moreover, the statements of P. W. 4, P. W. 6 and P. W. 8 that Kol came back to their house to inform the death of Nuru are absurd if we believe the statement of P. W. 3 that Kol was assaulting the victim till the arrival of P. W. 4, p. W. 6 and P. W. 8 at the place of occurrence. ( 60 ) I also find substance in the contention of learned Advocates for the appellants that according to the nature of injury and the opinion expressed by the Doctor that all those injures were caused by heavy sharp weapons and thus, the statement of P. W. 3 and P. W. 5 that Kol and Firoz used razors upon the deceased is inconsistent with the medical evidence. ( 61 ) I also cannot lose sight of the fact that all the accused persons were arrested by the Second Investigating Officer long after the incident but before the actually got the Case Diary from the previous Investigating Officer. In the absence of Case Diary how the second Investigating Officer could take step has not been explained. ( 62 ) ON total consideration of the materials on record, I am of the view that in this case the prosecution has improved its version from time to time and we are not prepared to believe P. W. 3 and P. W. 5 as eye-witnesses to the incident. ( 62 ) ON total consideration of the materials on record, I am of the view that in this case the prosecution has improved its version from time to time and we are not prepared to believe P. W. 3 and P. W. 5 as eye-witnesses to the incident. If a mother or a widow of a victim witnesses the killing of her son or husband, as the case may be, and immediately after the incident meets the elder brother, sister and elder brother's wife of the victim, it will be natural that those two-eyewitnesses will first disclose the names of the assailants if they are known to them. ( 63 ) I, therefore, cannot believe the statement of the prosecution that P. W. 4 did not know the names of the assailants and could know the names of the assailants from his mother only after the police had left which itself is contradictory as the P. W. 4 has himself stated in his evidence that on the way to N. R. S. Hospital the victim told him that those four accused persons injured him. I, thus, find that P. W. 3, P. W. 4, P. W. 5, P. W. 6 and P. W. 8 are not worthy of credence. ( 64 ) I am quite conscious of the position of law that merely because the eye-witnesses are near relations of the victim, that fact cannot be a ground for discarding their evidence. In this case, I propose to reject their testimony not on the ground of relationship but on the ground that they are not the actual eyewitness as it appears from their own statements. It appears that on the basis of mere suspicions the accused persons have been implicated in this case. The victim was involved in Satta business and it is evident that many persons demanded money from him; therefore, murder of the victim at the instance of those persons cannot be ruled out. ( 65 ) I, thus, find that in this case the prosecution has failed to prove that the appellants were involved in the incident and as such I set aside the order of conviction against the appellants. ( 66 ) I, thus, allow these appeals, set aside the order of conviction and sentence against the appellants. The appellants be released from the Judicial custody forthwith, if not wanted in any other case. ( 66 ) I, thus, allow these appeals, set aside the order of conviction and sentence against the appellants. The appellants be released from the Judicial custody forthwith, if not wanted in any other case. Arun Kumar Bhattacharya, J.-Though I fully agree with the ultimate decision as above, I respectfully like to add the following : (1) Any sort of investigation, vague, or indefinite first in point of time, is not necessarily the first information. If there is an information given first in point of time from an authentic source relating to the commission of a cognizable offence or suggestive of a reasonable suspicion that a cognizable offence has been committed, then the investigation can commence on the registration of a case on such information and such information, for all practical purposes, will be first information. But when the information received relates to prospect of suspicions of commission of a cognizable offence, the same may not be treated as first information. There is no doubt that on a telephonic message F. I. R. can be recorded so as to initiate investigation. But if the cryptic message regarding the occurrence without names of the deceased or the accused is recorded in the station diary it cannot be treated as F. i. R. In other words, vague, cryptic and indefinite information not satisfying requirement of Section 154, Criminal procedure Code recorded in daily diary received through telephonic message by police may not be regarded as F. I. R. In this connection, the decisions in soma Bhai case reported in AIR 1975 SC 1453 and Dhananjoy Chatterjee case reported in 1994 C Cr LR (SC) 35 at 42 may well be referred to. (2) In the case on hand, the information received over phone from Constable 490 is that "one person received stab injury in front of 12 Ripon Square, Calcutta-16" which was recorded as G. D. No. 2267 dated 22. 7. 1995 (Ext. 11) by RW. 14 who then left for the spot along with other officers to ascertain the fact. On inquiry from local people, one Md. Nasim (RW. 4) said to be the brother of the injured Nur Islam, came and reported the incident which was recorded by him in (Ext. 3/2), and he took cognizance of the offence. 1995 (Ext. 11) by RW. 14 who then left for the spot along with other officers to ascertain the fact. On inquiry from local people, one Md. Nasim (RW. 4) said to be the brother of the injured Nur Islam, came and reported the incident which was recorded by him in (Ext. 3/2), and he took cognizance of the offence. The said telephonic information which was recorded in the G. D. is cryptic, vague and indefinite, and as such there is no scope for treating it as F. I. R. An F. I. R. is extremely vital and valuable piece of evidence for corroborating the oral evidence adduced, as it shows on which materials the investigation commenced and what was the story originally told. (3) Section 162, Criminal Procedure Code does not refer to every statement recorded by the police, but only to statement in the course of an investigation under Chapter XII into cognizable and non-cognizable offences. The ban under section 162 does not apply to any statement to the police before starting investigation. The question whether investigation had commenced or not is a question of fact. Generally, investigation starts when the police takes some material step in that direction. Merely because RW. 14 after recording the said g. D. went to the spot along with other officers to ascertain the fact, it did not amount to starting of investigation. RW. 14 at one place deposed that he also 'examined' several persons viz. Hydar All, Sharuddin Ahmed, Md. Siraj, but they could not say anything regarding the incident. The above expression "examined1 cannot be construed to denote examination during the course of investigation but it means "enquired" as will be clear from his evidence a few lines back to the effect that "on an enquiry from the local people one Md. Nasim, said to be the brother of the injured Nur Islam, came and reported the incident". The Constable reported to RW. 14 that he got the telephonic message from a passer-by. When the said G. D. may not be treated as F. I. R. and there was no positive information or F. I. R. till then, the question of commencement of investigation at that stage did not arise. So, I am of the considered opinion, that the said statement of RW. 4 recorded by RW. 14 is the F. I. R.