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2010 DIGILAW 1849 (PAT)

Tarkeshwar Singh v. State Of Bihar

2010-08-16

DHARNIDHAR JHA, DINESH KUMAR SINGH

body2010
JUDGEMENT DHARNIDHAR JHA, J. 1. The four appellants, namely, Tarkeshwar Singh Bahadur Ram Kahar alias Bahadur Kahar, Bikarma Dusadh and Nagina Koiri were put on trial by framing charges under Sections 302/149 and 201 of the Penal Code with deceased appellants, namely, Shesh Badan Singh, Kameshwar Singh and Rameshwar Singh whose appeals abated as per order dated 6.7.2010 on account of their death. The trial was held vide Sessions Trial No.192/ 177 of 1977/1983 by the learned 8th Additional Sessions Judge, Sasaram who delivered the judgement in the case on 24.5.1988 and found the seven accused persons on trial guilty of committing the two offences and accordingly, directed each of them to suffer rigorous imprisonment for life under Section 302/149 IPC and further period of rigorous imprisonment for three years under Section 201 IPC. The four appellants along with the deceased appellants preferred the present appeal to assail the finding of guilt and sentences passed upon them. 2. The prosecution narration is in the form of the FIR, Ext-3, lodged by P.W.11 Surajbansi Kuer, the step mother of deceased Gupteshwar Singh on 16.10.1973 at about 4 A.M. at Kudra police station, then within the district of Rohtas at Sasaram. It was alleged that the deceased Gupteshwar Singh started from his house with P.W.6 Shambhu Singh with meals for his herds-boy at about 11 P.M. The herds body was in the pump house of the informant situated west of Pusauli railway station. The informant found that the deceased Gupteshwar Singh had missed taking his torch light with him. Because the pump house was located quite away from her house into the fields, as such she along with Muneshwar Singh(P.W.14), brother of the deceased, started with the torch Sight for handing the same over to the deceased Gupteshwar Singh, It was alleged by the informant that when she had reached into the lane situated east of the cattle shed of one Chhabi Koiri she found that P.W.6 Shambhu Singh was coming running from south and he stated to her (P.W.11) that the seven accused persons named in the FIR including the four appellants had caught the deceased and after having put him down on the ground near south-eastern corner of the cattle shed of Chhabi Koiri, were pressing his neck at the place which was a shallow land. The informant stated that it was striking about 8.30 P.M. then, and further, that she heard the Aah-Aah(moaning sound) of the deceased Gupteshwar Singh. 3. The informant stated further that she along with P.W.14 Muneshwar Singh and P.W.6 Shambhu Singh proceeded a bit towards south and on flashing the torch light saw the seven accused persons including the four appellants catching hold of the deceased. The informant stated that the deceased appellant Shesh Badan Singh was armed with a gun and the remaining accused persons were having lathis. She raised a hullah that they were killing her son on which the deceased accused Shesh Badan Singh remonstrated the other accused persons to kill the informant and others as the deceased had already been killed. P.W.11 stated that the deceased stopped moaning, whereafter the accused persons lifted him and took him towards the railways situated to the east of the place of occurrence. 4. The informant, thereafter, came to her village and raised a hullah about the incident and stated the names of the accused persons to Kalpnath Singh, Sriniwas Singh and others who were not examined in the case. 5. As regards the motive for commission of the offence by the accused, P.W.11 stated that the deceased was a witness in a case and had given statement against appellant Kameshwar Singh in that case of committing theft in the railway-yard which was registered by G.R.P.S., Dehri and further that the deceased had informed the police about the activities of appellant Kameshwar Singh regarding commission of theft in respect of the railway properties and in the evening of Sunday, i.e., on previous day of the occurrence, Kameshwar Singh had come to threaten the informant that she should caution her son and forbid him from deposing in the case against him, else, he would be killed and his dead body would be made traceless. It was stated that on account of that particular reason the occurrence had taken place. 6. The informant stated that she along with her villagers and relatives made a hectic search for the dead body in the river and at other places and also made enquiries from different persons about it, but could not get any clue. It was alleged that the accused persons were mighty and dangerous persons and as such people were afraid of them and were not ready to depose against them. 7. It was alleged that the accused persons were mighty and dangerous persons and as such people were afraid of them and were not ready to depose against them. 7. As regards the delay in lodging the FlR on 16.10.1973 for the occurrence which had occurred on 14.10.1973, the informant stated in Ext-3 itself that she had come to the police station the last day, i.e., on 15.10.1973, but there was a big assembly of persons in connection with auction of cement which was being carried out by an Assistant Sub-Inspector of Police and as such she could not lodge the information, She was quite upset and disturbed after the occurrence and some one from the mob which was there advised her to go to Dehri and, accordingly, she went to Dehri on 15.10.1973 and as such could not lodge the report on that day. 8. As may appear from the evidence of P.W.15 S.I. Gopal Krishna Jha, who was the officer-in-charge of Kudra police station on 16.10.1973, Ext-3 was recorded by him at 4 A.M. at the police station on that date and the same was read over to her and was signed by her. P.W.15 recorded her further statement and proceeded to the place of occurrence for inspecting it and reachec there on the same day, i.e., on 16.10.1973. He found the ladies of the house of the deceased or house of the informant weeping and they were taking the names of Shesh Badan Singh and appellant Kameshwar Singh as culprits. He, thereafter, recorded the statement of P.W.6 and inspected the place of occurrence which was situated in south of village-Ghatao at a place which was about 50 yards north of the traction- office of Pusauii railway station. The pathway to the pump house of the informant passed through that particular place and by the Dalan of one Kashinath Singh and after passing through the lane it went up to the railway station. The lane was situated east of the cattle shed of Chhabi Koiri. There was yet another gali (lane) which was situated north of the Daian of Chhabi Koiri and that led to his house. P.W.15 stated that the two lanes were quite dark but people used to pass through it on account of the distance being shortened. The lane was situated east of the cattle shed of Chhabi Koiri. There was yet another gali (lane) which was situated north of the Daian of Chhabi Koiri and that led to his house. P.W.15 stated that the two lanes were quite dark but people used to pass through it on account of the distance being shortened. There was the third gali which was situated east of the cattle shed of appellant Nagina Koiri and it went into the village from the railway station. There was a barricade in south of the gali situated east of the cattle shed of appellant Nagina Koiri and it was of thin iron wire and it was at the southern end of the gali passing by the side of cattle shed of Nagina Koiri. The I.O. found the barricading broken and some wires lying there. He further found the creepers and other vegetations trampled in the eastern corner of the barricaded place indicating as if there had been some struggle at that particular place. 9. P.W.15 seized the broken pieces of iron wire and the three-cell-torch-light which was produced before him by the informant by preparing a seizure memo which has been marked Ext-1 in the case. The torch light was found by P.W.15 in working condition. P.W.15 made a search of the cattle shed of appellant Nagina Koiri along with his house and Baithka and found a chaff-cutting-machine in the Baithka of the appellant Nagina which was facing east. There was a window fixed in the western wall of the Baithka and iron rods had been fitted in it. He found two rods recently removed from there and some blood-like mark on the brick of the window. Blood- like stain was also found on the southern wall of the Baithka and some green-fodder (Janera) was found cut into pieces. There was dry fodder stocked north of the chaff- cutter and the mixture of the green fodder along with the dry-fodder was found scattered on the floor of the Baithka. The I.O. of the case also found blood stains on the wall and as such scrapped it from different places and seized it with green Janera fodder by preparing seizure list which appears tendered in evidence by P.W.15 (paragraph-4). 10. P.W.15 arrested appellant Shesh Badan Singh and found the other accused persons absconding. The I.O. of the case also found blood stains on the wall and as such scrapped it from different places and seized it with green Janera fodder by preparing seizure list which appears tendered in evidence by P.W.15 (paragraph-4). 10. P.W.15 arrested appellant Shesh Badan Singh and found the other accused persons absconding. He recorded the statements of different witnesses including some of the railway employees and made a search of a well which was located at a deserted place and which belonged to one Ramashish Singh and found in it a gunny bag tied by iron wire. The same was brought out and it was opened in presence of the witnesses. A head was found inside it which was identified as that of deceased Gupteshwar Singh. There was a cement brick inside the bag and there was some chopped off pieces of Janera-fodder also inside it and it was tied by a thin iron wire. P.W.15 held inquest upon the dead body in presence of the witnesses. The inquest has been marked Ext-6. The gunny bag, the cement brick and the iron wire with the Jinera fodder were also seized by preparing seizure memo Ext-2. P.W.15 stated that the iron wire was of the same quality and was resembling with one which was found at the place of occurrence situated near the cattle shed of Chhabi Koiri. 11. P.W.15 stated that Assistant Sub- Inspector R.P.Yadav of Gomo-G.R.Police station met him and pointed out to him that a headless body was found in Gomo in respect of which Gomo G.R.P.S.Case No.5 (10)73 under Section 302 was registered and further pointed out that the Dhoti which was found on the dead body was lying in Gomo G.R.P.S. and that was sent to P.W.15 along with other clothes which was found on the headless dead body. The clothes included, besides a Dhoti, a white kurta of full sleeves bearing blood stains, an old blood stained Baniyan and a gunny bag as also a tobacco case. It was stated by P.W.15 that those articles had already been identified at the Gomo G.R.P.S. as belonging to Gupteshwar Singh. 12. P.W.15 stated that the Superintendent of Police, Rohtas supervised the case on 3.11.1973 and found a blood stained solid-cement-piece on the lower part of the western wall of the Baithka of appellant Nagina Koiri and that was seized by preparing seizure memo Ext-2. 13. 12. P.W.15 stated that the Superintendent of Police, Rohtas supervised the case on 3.11.1973 and found a blood stained solid-cement-piece on the lower part of the western wall of the Baithka of appellant Nagina Koiri and that was seized by preparing seizure memo Ext-2. 13. In cross-examination P.W.15 stated that he did not send the scrapped blood like matter for chemical analysis nor his successor had done that. He further stated in cross-examination that the place where he found marks of trampling and scuffle was just by the side of the cattle shed of Chhabi Koiri and that Chhabi Koiri, was the father of appellant Nagina Koiri.The traction office of the railways was situated at about 50 yards from the above place where trampling marks were found. 14. P.W.15 after close of the investigation submitted chargesheet sending up the accused persons for trial. 15. The defence of the appellants was that the deceased Gupteshwar Singh had not started from his house with meal for his servant, who was at his pump house and that no occurrence indeed occurred in the manner as alleged and further that on account of being persuaded by the enemies of the appellants the informant had implicated them falsely. The above defence appears suggested to P.W.11, the informant of the case, in paragraph-13 of her deposition. 16. The prosecution examined a total number of 16 witnesses out of whom P.W.1 Muni Lal and P.W.5 Rameshwar Singh were declared hostile. P.W.3 Mohan Singh was tendered for cross-examination. Eye witness account came from three witness, i.e., Shambhu Singh(P.W.6), Surajbansi Kuer (P.W.11), the informant of the case and Muneshwar Singh (P.W.14). Out of the remaining witnesses P.W.2 Kapildeo Singh gave evidence on the recovery of the head from the well and preparation of the inquest report Ext-1. He also gave evidence on the search of the dead body and finding the head inside a bag in the well and preparation of the inquest report which was signed by him as one of the witnesses. He also gave evidence on the search of the dead body and finding the head inside a bag in the well and preparation of the inquest report which was signed by him as one of the witnesses. P.W.4 Badri Narayan Pandey was a constable in the R.P.F. and he has given evidence that while he was on his duty in the night of 14.10.1973 at Pusauli railway station along with another constable Surendra Singh, he heard the moaning sound of Aah-Aah at about 11.30 P.M. which was coming from Koiri-tola of village Baraon which was only 60-70 yards north of Pusauli railway station and the Koiri-tola was located in southern part of the village. He further stated that he heard someones voice twice that he was being killed, once in a loud volume and then in a low volume. It was further stated by P.W.4 Badri Narayan Pandey that Suresh (evidence has come that he is brother of appellant Nagina) and Chhabi Koiri (father of appellant Nagina Koiri)were residents of that particular Tola. P.W.7 Ram Barat Singh was the brother of P.W.6 Shambhu Singh and he was not an eye witness to the occurrence and was only a witness to the seizure of blood from the Baithka of Nagaina Koiri as has been stated by P.W.15 and this witness also. He is also a witness to the FIR. P.W.9 Ravindra Nath Singh was the officer-in-charge of R.P.F.-Post, Dehri-on-Sone in the year 1972- 73 and he had instituted R.P.F.post, Dehri- on-Sone Case No.2 (10)1972 dated 12.10.1972 under Section 3 R.P. (U.P.) Act and also another case of the same post bearing no.4(9)73 under the same Section of the same Act and had investigated them. He has stated that appellant Kameshwar Singh was accused in both the cases along with other persons and the deceased Gupteshwar Singh was one of the witnesses for the prosecution and that the cases were pending in the courts. P.w.9 stated that he had recorded the statement of deceased Gupteshwar Singh in both the cases in Hindi but translated them into English and obtained the signature of deceased Gupteshwar Singh which has been marked Ext-4 and 4/1. It was stated that in one of the cases, bearing no.4(9) 73, one Suresh Koiri, son of Chhabi Koiri (i.e., the full brother of appellant Nagina Koiri), was also an accused. It was stated that in one of the cases, bearing no.4(9) 73, one Suresh Koiri, son of Chhabi Koiri (i.e., the full brother of appellant Nagina Koiri), was also an accused. Thus, P.W.9 appears a witness on the motive part of the occurrence as to why Gupteshwar Singh was murdered. P.W.12 J.B.Singh was the guard of a goods train and has stated that the train which he was taking, stopped at Hazaribagh railway station on account of some obstruction on the railway track and he alighted from the train to have a cup of tea. He was crossing the yard through the over bridge and he found that there was another goods train standing on the down line whose guard was Sri T.P.Sinha (P.W.13). He saw a bag lying in one of the open boxes of the goods train of guard Sri T.P.Sinha from which the legs of a dead body were peeping through. The goods train had started moving. He pointed out to T.P.Sinha (P.W.13) that there could be a man in a bag as a result of which the goods train was stopped. It appears from the evidence of P.W.12 that it was a dead body. It was packed inside the bag which was found in the bogey of the goods train and that was brought out which subsequently appeared to be the dead body of Gupteshwar Singh as may appear from the evidence of P.W.11. The said T.P.Sinha was examined as P.W.13 and he also stated the same facts as regards the recovery of the dead body from a bogey of the goods train which he was taking as its guard from Gaya railway junction to Gomo. The train was bearing no.E.C.184 and in its open box, a bag and dead body was seen by P.W.12 J.B.Singh who shouted to tell him about it as a result of which the train was stopped and on inspection of the open box the dead body was found packed in a gunny bag and Assistant Station Master of Hazaribagh road station was informed who in turn informed the officer-in-charge of Gomo G.R.P.S. and, accordingly, the dead body was brought out of the open box of the goods train. It has been stated by P.W.13 Tapeshwar Prasad Sinha that it was a headless dead body but he could not say as to whose body it could be. 17. It has been stated by P.W.13 Tapeshwar Prasad Sinha that it was a headless dead body but he could not say as to whose body it could be. 17. Out of the remaining witnesses P.W.8 Parmahans Singh has proved the writings of the FIR Ext-3 and P.W.16 Mahendra Tiwary has given evidence of formal character on the fact that whereabouts of doctor Ramsudip Prasad who was the professor of Forensic Medicine, Dhanbad was sought to be ascertained. Besides, through another correspondence the whereabouts of another doctor, who had held postmortem examination on the head of the deceased, i.e., Dr. Mirza Hussain, was also sought to be ascertained by the Public Prosecutor and those correspondences have been exhibited as Ext-7 and 7/1. He has also marked the reports received on the queries made by the Public Prosecutor which indicated that the doctors who held postmortem examination on the headless part of the dead body as also the head, could not be traced out on account of no clue about their addresses. 18. Sri Rana Pratap Singh, the learned senior counsel appearing on behalf of the appellants has submitted that the explanation on the delay in lodging of the report was given by the informant in her FIR and it has been reiterated by her in her deposition in court which does not inspire confidence as there were persons like RWs.6 and 14 who had seen the deceased being put down on the ground and then being gagged and thereafter being lifted to be taken away. But none rushed to the police station promptly to lodge a report. It was further contended that the evidence of P.W.11 in paragraph-6 indicates that prior to the lodging of Ext-3, the FIR, the real mother of the deceased, Purushottama, had gone to the police station and had lodged a report and as such the present FIR was hit by Section 162 of the Cr.P.C. and was not admissible. Besides, it was contended that the report which was lodged by Purushottama has not been produced by the prosecution and as such the prosecution appears guilty of withholding one of the most important documents and in its place offered an explanation which was simply flimsy and not acceptable. Besides, it was contended that the report which was lodged by Purushottama has not been produced by the prosecution and as such the prosecution appears guilty of withholding one of the most important documents and in its place offered an explanation which was simply flimsy and not acceptable. Sri Singh has highlighted the importance of the FIR and in that connection cited before us three Supreme Court decisions, like, (1972)3 SCC 393 , 1995 Criminal Law Journal 457 and 2005 SCC (Criminal)73 and submitted that it was a fact to be investigated into as to whether there was any substance in the claim of P.W.11 that in spite of her efforts her report could not be lodged in time. 19. It was contended in the above connection that the FIR was an ante-dated and fabricated document as some other evidence on record like that of P.W.7 Ram Barat Singh in paragraph-2 and P.W.6 in paragraphs-43 to 46 indicated as if the report could have been fabricated by the police so as to implicating the appellants. It was further contended by reading out to us the evidence of P.W.11 in paragraphs-4 and 5 that the conduct of the informant was suspicious and it could be said that she was made to make a statement as per the need of the hour and she had not seen anything. Besides, our attention was also drawn to evidence of P.W.14 Muneshwar Singh in paragraph-1 in the above connection to convince us that the FIR was a fabricated, collusive report. Sri Singh further cited before us AIR 2006 SC 3376 in which it has been held that registering of a FIR is a must even if the case may be false so that the police could investigate the allegations. Some other decisions like those reported in (2003)3 SCC 377 and (2004) 10 SCC 141 were also cited before us in that connection. It was next contended by Sri Singh that there was a complete lack of evidence that Gupteshwar Singh was butchered by accused persons and that too at the Bathan of appellant Nagina Koiri as the blood which was scrapped by the I.O. was not sent for chemical analysis so as to confirming that it was human blood which was found there. It was also submitted that the identity of the dead body, especially that of the headless trunk recovered from the goods train, was also not established and as such the evidence on murder of the deceased was very scant, not warranting the conviction of the appellants. 20. It was submitted by Sushri Shashibala Verma, the learned Additional Public Prosecutor, that the three witnesses P.Ws.6, 11 and 14 might have faltered on one fact or the other, but if their evidence is carefully considered, there is no reason to reject their evidence and also their claim of having seen the main part of the occurrence. It was further submitted that the torch light was flashed and the accused persons were duly identified by three P.Ws and that torch light was produced by the P.W.11 before P.W.15. The investigating officer found the trampling marks at that particular place from where the deceased was lifted and taken away towards the railway station. The motive has been established and there is circumstantial evidence in abundance to support and establish the participation of the appellants and other accused persons in commission of the offence. It was, as such, submitted that the judgement passed by the learned trial court did not deserve to be disturbed. 21. Before I proceed to scrutinize the arguments of both the sides, I want to have a glance of the evidence of three eyewitnesses conjointly so that it could be useful in assessing the merits of the contentions of the parties. 22. P.W.11 Surajbansi Kuer, the informant of the case and P.W.14 Muneshwar Singh have stated that the deceased Gupteshwar Singh had left his house for the pump house with the meal for the servant. P.W.11 has stated that she found his torch light lying on a cot and she thought that it should be given to him. As such, he went with the torch light to the house of P.W.14. The two houses were intervened by 5-6 other houses. She requested him to accompany her so that the torch light could be given to the deceased. As such, he went with the torch light to the house of P.W.14. The two houses were intervened by 5-6 other houses. She requested him to accompany her so that the torch light could be given to the deceased. P.W.14 says that P.W.11 came to his house and asked her to accompany and, accordingly, both of them went together and when they were near the house of Chhabi Koiri, i.e., the father of appellant Nagina Koiri they found Shambhu Singh coming from opposite direction running and speaking that Gupteshwar Singh was being murdered by the accused persons by putting him down on the ground. P.W.11 has stated that she heard the Aah-Aah of the deceased twice. Both P.W.11 and 14 moved togethe and found the deceased lying on the ground on account of being captured by the accused persons. He was moaning. Surajbansi Kuer(P.W.H) flashed her torch light and saw that appellant Kameshwar Singh was pressing the neck of the deceased and other accused persons were catching hold of him. Shesh Badan Singh was armed with a gun whereas other accused persons were armed with lathi. Shesh Badan Singh stated that the two should also be killed upon which they retreated and the accused persons lifted the deceased and took him towards the railway station. 23. The above facts appear corroborated by P.W.6 Shambhu Singh, who as per the prosecution story was accompanying the deceased to the pump house while he was carrying the meal for the servant. P.W.6 admittedly was the sala of the deceased and had come on the day on which the occurrence had occurred. He stated in his evidence that when he and the deceased had reached near the cattle shed of Chhabi Koiri and were passing through the gali and had reached the place which was barricaded by iron wire, the accused persons came there and surrounded Gupteshwar Singh and caught him and put him down on the ground, Appellant Kameshwar Singh was pressing the neck of the deceased. P.W.6 ran away from there and when he had ran for 10-12 steps he found P.Ws.11 and 14 coming from the opposite direction and stated to them about the occurrence. He has stated that the three went near the place where the occurrence was being committed and heard the moaning voice of the deceased and further that the accused persons lifted him and took him away. He has stated that the three went near the place where the occurrence was being committed and heard the moaning voice of the deceased and further that the accused persons lifted him and took him away. P.W.6 has stated that P.Ws.11 and 14 were going to hand over the torch light to the deceased and further that the accused persons ran towards them also whereafter tney retreated from there. 24. While perusing the evidence of the above three witnesses what struck me the most was that there was a string of consistency in their evidence. It is true that P.W.11, the informant of the case who was a lady having no child, had given statement on certain facts upon which a lot was argued by the learned senior counsel for the appellants, but one has to appreciate that P.W.11 was an illiterate rural lady. Besides, she had seen her son being lifted and taken away by the accused persons. In addition to the above, she had gone to the police station the next morning but her report was not registered and, as such, she went to Dehri-on-Sone from Kudra, places apart by 60 kilometers from each other, and had to come back again by travelling over night to the police station at Kudra from Dehri. Her statement was, thereafter, recorded in the wee hours of 16.10.73. The couple of statements which appear in her evidence upon which the learned senior counsel for the appellants requested the Court to reject her evidence and the whole prosecution case is that before she went to the police station, her Sautan Purshottama had gone there and she stated to her that she had lodged the report and further that she(P.W.11) remained at her house. Besides, in one particular para, thats, paragraph-6 at page-150 of the paper book, she stated that she gave statement to the police as she was prompted to do by P.W.7 Ram Barat Singh. But what I find is that she corrected herself in the very next line by stating that she gave her statement out of her own about the incident which had been seen by her. The other aberration pointed out in the evidence of P.W.11 by the learned senior counsel was that she made a statement in paragraph-5 that some persons arrived at her house and enquired from her about the names of the accused persons. The other aberration pointed out in the evidence of P.W.11 by the learned senior counsel was that she made a statement in paragraph-5 that some persons arrived at her house and enquired from her about the names of the accused persons. Her reply to that question was that she did not tell any of them, the names of the accused persons. But again, I find that she has given an explanation. She stated that at that particular time when people were asking the names of the accused persons she was weeping. This is quite understandable. A mother, who did not have any child of her own and who had adopted her step son as her own, could be finding the moments of the incident so frightening, shocking and saddening that she could hardly stop weeping and wailing so as to be capable of telling as to who were the accused persons. It does not appear an unnatural conduct of the witness. 25. Purshottama had gone to the police station appears stated by P.W.14 Muneshwar Singh. He stated in his evidence at page 174 of the paper book that P.W.11 had gone to Kudra police station and he and his mother (thats, Purshottama) had also gone there. If one considers the evidence of P.W.14 at pages 174-175 of the paper book, one could find that the statement of P.W.11 that Purshotama had gone to the police station might not be untrue. The situation obtained out of the evidence of P.W.11 is that Purshottama had gone to the police station ahead of the informant, whereas P.W.14 who resided with Purshottama, his real-mother in a separate house from that of P.W.11 his step-mother, has stated that he and his mother went together subsequent to the departure of P.W.11 for the police station. The investigating officer of the case was the officer-in-charge of the police station. It was, as such, legitimate that the defence should have cross-examined him on the above fact as to whether Purshottama indeed had come to the police station ahead of P.W.11 to lodge any report or to present any information before the police. There is no cross-examination of P.W.15. It was, as such, legitimate that the defence should have cross-examined him on the above fact as to whether Purshottama indeed had come to the police station ahead of P.W.11 to lodge any report or to present any information before the police. There is no cross-examination of P.W.15. These circumstances leave me to draw no other inference than that it could be a simple aberration on the part of P.W.11 when he was in the witness box and when he was facing the barrage of questions from an expert advocate who was cross-examining her. It was on account of the unequal duel between an experienced advocate and a simple rustic, illiterate lady that she was made to falter. 26. The evidence of P.W.11 was also castigated by referring to us the evidence of P.W.7 Ram Barat Singh who was the other sala of the deceased and who stated that he had come to village Ghataw after hearing about the incident. Our attention was drawn to paragraph-2 of P.W.7 in which he has stated that the FIR was never written in his presence rather it was written before he had reached Ghataw and further that he had not put his L.T.I. over it as he was a literate person. It was contended that it could create a serious doubt not oniy about the veracity of evidence of P.W.11 as an eye witness but also her credibility as the informant of the case and would also render the FIR as a fabricated document. I would have valued the contention or the criticism, had there not been the evidence of the witness P.W.7 in the very next line of the above statement in paragraph-2 of the witness. It has been stated by P.W.2 that the signature on the FIR was his and that FIR was written at the P.S. in the afternoon where he was very much present. Thus, what I feel is that the earlier question that the witness had put his L.T.I. was a misleading question and as such he replied that the L.T.I. was not his as he was a literate person. Thus, what I feel is that the earlier question that the witness had put his L.T.I. was a misleading question and as such he replied that the L.T.I. was not his as he was a literate person. As soon as he appears shown the FIR he could recollect and reply properly that he had put his signature after the document had been written in his presence at the P.S. as appears his evidence in the same paragraph and just after the above statement upon which the whole criticism has been framed. I have personally looked into the record of the FIR Ext-3 in its original, which is available on the trial court record and I find that there was no L.T.I. of any witness attesting to the document and both the witnesses, i.e., Raghwendra Prasad Singh (not examined) and Ram Barat Singh (P.W.7) had put their signatures over it. This further confirms my view that the witness (P.W.7) was misled by being put a misleading question by the defence to fall into an error which was so strenuously highlighted before us. It may be pointed out that the question that P.W.7 had put his L.T.I. over Ext-3 was wholly and completely a misleading question. It was against the real contents and form of Ext- 3. It did not bear the L.T.I. of any witness to its recording. If a question is put in cross-examination which appears against the real state and contents of the documents, it has always to be held that the question was misleading and could not be admitted. As such, the reply to such misleading question has always to be excluded from consideration. We cannot shut our eyes to this aspect of court proceedings that some of the counsel do not conduct themselves in the highest traditions of the profession and never hesitate in putting misleading questions only with a view to enjoying the confidence of ignorant litigants which often, unfortunately, is not identified by the presiding Judges also. 27. Thus on the consideration of the evidence of P.W.6, 11 and 14, I find that their evidence inspires confidence and they appear to me the most natural witnesses who were rightly trusted and relied upon by the learned trial court. 28. 27. Thus on the consideration of the evidence of P.W.6, 11 and 14, I find that their evidence inspires confidence and they appear to me the most natural witnesses who were rightly trusted and relied upon by the learned trial court. 28. Some of the other evidences lend support to the evidence of the above noted three witnesses and that evidence has come from P.W.4 Badri Narayan Pandey, a constable in the R.P.F., who had heard the moaning voice at the relevant time while he was performing his duties at the railway platform when the occurrence was being committed some 50-60 yards away from there. The objective finding of the I.O. P.W.15 about finding trampling of the plants and signs of struggle on the vegetations grown on the shallow land which was barricaded by iron wire, also lends support to the place of occurrence where the three witnesses had seen the accused persons having put the deceased down on the ground and further that one particular appellant Kameshwar Singh was pressing the neck of the deceased and when the accused persons saw the witnesses they picked up the deceased and ran away from there. 29. Evidence has also come from witnesses like, P.Ws.11 and 14 that the deceased was a witness against appellant Kameshwar Singh who was accused in cases under the R.P. (UP.) Act and one day prior to the occurrence the said appellant had come to the house of the deceased to tell P.W.11 to advise his son not to depose in court against him else, he would be killed and his dead body would be disposed of. The deceased was a witness against appellant Kameshwar Singh has been deposed to by the most competent person, P.W.9 Ravindra Nath Singh who had registered the two cases and investigated them and had found appellant Kameshwar Singh and one Suresh Koiri, the brother of appellant Nagina Koiri, to have committed the offence. P.W.9 exhibited the recorded statements of the deceased which is Ext-4 and 4/1.Thus, there was an eminent motive for appellant Nagina Koiri to commit the offence along with Kameshwar Singh. The motive, as such, also gets established. 30. The contention of the learned senior counsel was that the explanation on the lodging of the report was not acceptable and that the document Ext-3 was antedated and fabricated so as to falsely implicating the appellants. The motive, as such, also gets established. 30. The contention of the learned senior counsel was that the explanation on the lodging of the report was not acceptable and that the document Ext-3 was antedated and fabricated so as to falsely implicating the appellants. The other contention was that in the light of the evidence of P.W.11 that Purshottama,the real mother of the deceased, had already lodged a report prior to P.W.11 had lodged Ext-3, the very FIR was hit by Section 162 of the Cr.P.C, and as such, was inadmissible. The explanation which has been given by the informant was that she went to Kudra police station on 15.01.73 and found that there was only one officer present there who was engaged in the auction of cement and a huge mob had assembled in that connection at that police station. Her evidence in paragraph-3 is that after having not been able in tracing out the dead body of her son P.W.11, the informant proceeded to Kudra police station with one Bharat Singh, where she found the only officer present there engaged badly in the auction of cement. A person came out of the police station to tell her that there was a big mob and the police officer present had no time, and as, such she should go to Dehri. She went to Dehri and told the facts to one officer who directed her to Kudra police station. It was evening by then and as such she missed the bus and caught the train for coming to Kudra and reached there some times in the mid-night where she was told by the constable available at the police station that the officer-in-charge was sleeping and he could not get up and as such she could meet him in the morning. By that time she met P.W.7 Ram Barat Singh and one Indradeo Singh who came there in search of her to Kudra and, accordingly, the statement of P.W.11 was recorded. The fact that P.W.11 went to Kudra police station on 15.10.73 has been stated to by P.W.14 Muneshwar Singh also and that fact also gets support from the evidence of P.W.6. The document FIR, was recorded in the discharge of his official duties by P.W.15 and as such it carries a presumption with it of being regularly recorded. The fact that P.W.11 went to Kudra police station on 15.10.73 has been stated to by P.W.14 Muneshwar Singh also and that fact also gets support from the evidence of P.W.6. The document FIR, was recorded in the discharge of his official duties by P.W.15 and as such it carries a presumption with it of being regularly recorded. It contains the above facts, which might not be substantive evidence but which, nonetheless is important inasmuch the law which has been cited before us by the learned senior counsel and which are reported in (1972)3 SCC 393 (1995) Criminal Law Journal 457 and (2005) SCC 73 themselves indicate that the value of the statements made in the FIR is very high. As such the statements made by way of explaining the delay in lodging the report of the FIR is very high. The above statements were made by the lady to the officer-in- charge of the police station and those statements were flying very much in the face of the officer. The evidence, as such, which has come in corroboration of those statements to me, appear facts which directly castigate the functioning of the police station on that particular day by not recording the statement in respect of the most heinous cognizable offence which had been committed in the area of its local jurisdiction. P.W.15 was examined and he says that he recorded the FIR at 4 A.M. on 16.10.73. If those statements which had been made by P.W.11, an illiterate, rural lady, were untrue or baseless P.W.15 must have had verified them and would have recorded in his investigation record that those explanations were untenable and flimsy. A person who is a victim of the offence could only attempt to make a report, whether the report has been recorded on account of being received at the police station is completely a different aspect of registering a case and that is always beyond control of an aggrieved person. Our police stations do function in a manner as has been depicted in the present case and we are not unaware of it. if there was no auction of cement in the police station, P.W.15 could have by reference to the documents in that behalf which is maintained in the form of the station diary of the police station, could have stated to the court that the explanation was false. if there was no auction of cement in the police station, P.W.15 could have by reference to the documents in that behalf which is maintained in the form of the station diary of the police station, could have stated to the court that the explanation was false. P.W.15, of course, has not stated that he verified the claim of P.W. I1 that she went to Dehri at the advice of some one else for lodging the report, but he does not controvert that statement either. The informant stated that she came to Kudra by train in the mid-night. This evidence does not appear false inasmuch my personal knowledge of the locality on account of being posted some times as the District & Sessions Judge, Rohtas indicates that the two places are apart by over 60 kilometers and as such the explanation on travelling by train and reaching Kudra from Dehri-on-Sone late in the night could very well be accepted. If the statement that the officer-in-charge was sleeping and would not get up to record any statement had been false, P.W.15 himself should have pointed out that to the court. In my considered view, the explanation not only appears legitimate but completely acceptable as the same is not denied by the most competent officer who deposed in the court as P.W.15. On these considerations, I find that the explanation on lodging of the delayed report is worthy of credence and as such, the contention in that behalf appears of no merit. 31. As regards the other connected argument of the learned senior counsel that on account of the evidence of P.W.11 in paragraph-6 that Purshottama, the real mother of the deceased, had gone to the police station ahead of her and had lodged the report which fact was stated by Purshottama to P.W.11 and, as such, the FIR Ext-3 was inadmissible, I simply want to point out that this is a mere statement of P.W.11 in paragraph-6 without there being any record in that behalf. Besides, while discussing the evidence of the witnesses a bit earlier, I have rejected the contention that the evidence of P.W.11 could not be relied upon and that her credibility as the informant was not acceptable. Besides, while discussing the evidence of the witnesses a bit earlier, I have rejected the contention that the evidence of P.W.11 could not be relied upon and that her credibility as the informant was not acceptable. If there had been any statement which was duly recorded by any authority even at any other place or by any other police station which could have preceded the recording of Ext-3, then in that case the contention could be valued that Ext-3 was hit by Section 162 of the Cr.P.C. and as such, was not admissible in evidence. We do not have any reliable material before us indicating to us that indeed Purshottama had made any statement. Only evidence on the above point has come from P.W.14 Muneshwar Singh who has stated that he and his mother went to Kudra police station after P.W.11 Surajbansi Kuer had gone there. It is not stated by P.W.14 that her mother or he himself had made any statement to the police or had even requested them to hear them and to record their statements. The law does not say that a mere statement of a witness, as has been pointed out to us by making reference to paragraph-6 of P.W.11, could be enough to render a properly recorded first information report inadmissible. A first information report is called as such as it is first in point of time and its admissibility could be questioned only when it is shown successfully to the court that before that particular document was brought into existence there was already a record made by the police which disclosed commission of a cognizance offence by some one, known or unknown in respect of the same occurrence. Mere suggestion or mere statement may not be sufficient, in my considered view, to hold a properly recorded document like, Ext-3, as inadmissible or hit by Section 162 of the Cr.P.C. I do not see any reason to record the finding that Ext-3 was a mere statement under Section 161 Cr.P.C. as there was already a,document in that behalf, simply for the reason that there was no document in that behalf. My view gets fortified from another angle also. My view gets fortified from another angle also. P.W.15, the officer-in- charge of the police station, has been examined and it was a legitimate expectation from the defence, if it was desirous to challenge the admissibility of Ext-3, that it had put some questions to P.W.15 as he could be the only competent person to give evidence that Purshottama had come to the police station prior to recording of Ext- 3 and had made some statement and that was maintained in the police station in any form. That appears not having been done, the above contention, to me, appears completely hollow and fit to be rejected. 32. The third contention in the above connection was that the document Ext-3 was ante-dated and was deliberately fabricated so as to implicating the accused persons. As regards the first limb of the contention reference was made by the learned senior counsel to the evidence of P.Ws.6 and 7 as also to P.W.11. I have already dealt with the evidence of the above said three witnesses in some early part of the present judgement, but even at the cost of repetition, I want to point out that the evidence of P.W.6 in paragraphs-43, 44, 45 and 46 that in spite of having seen the occurrence while he was accompanying the deceased who was carrying the food to the pump house for the servant, he remained at the house of the deceased at village Ghataw and did not move any where least to talk of the police station. The reason appears simple. As P.W.11 had already left for Kudra in the early hours of 15.10.73 when she failed to trace out the dead body of the deceased P.W.6 might not have thought of going to the police station. So far as the evidence of P.W.11, the informant in paragraph-4 is concerned, she made a statement initially that she stated to the police facts which were pointed out to her by P.W.7 Ram Barat Singh, but the very next line of her evidence in para-4 indicates that she had stated the facts about the occurrence as was seen by her. Thus, it could be very difficult for any reasonable person to say that the statements contained in Ext-3 were not the real and own words of P.W.11 rather they had been put into her mouth by P.W.7. Thus, it could be very difficult for any reasonable person to say that the statements contained in Ext-3 were not the real and own words of P.W.11 rather they had been put into her mouth by P.W.7. Likewise, the evidence of P.W.7 in paragraph-2 that the FIR had not been recorded in his presence and that he reached after it had already been recorded and further that he did not put any thumb impression over the document because he was literate has been held by me as an answer to a misleading question, because, in the very next line when the document appears shown to the witness he admitted the document being recorded in his presence which he had signed. I have also made reference to the original document in support of recording the above finding that the witness was misled by an unprofessional and unethical advocate who was cross- examining P.W.7. P.W.14 in paragraph-1 has stated that Surajbansi Kuer had gone to the police station, Kudra, in the afternoon. The contention on ante dating and fabricating Exl-3 was made also on account of the above evidence of P.W.14 when it was contended that why P.W.11 would go so belatedly to the police station for lodging the report. I do not subscribe to contention noted above because the very witness P.W.14 and the informant in her evidence have sated that when they failed in tracing out the dead body in the morning of 15.10.73, they set out for the police station for lodging the report. 33. The evidence of P.W.15 points out that a gunny bag was retrieved from a well which was found containing the head of Gupteshwar Singh with a brick kept in it. The head was identified to be that of Gupteshwar Singh. P.W.11 has stated in her evidence that she went to Gomo G.R. police station and saw the clothes and tobacco container of the deceased and identified each of them to be articles belonging to him. Thus, the identification of the dead body was established that the head and the trunk, which were found at two places, quite apart from each other, belonged to the deceased. 34. However, the prosecution evidence which has come from RW.15 that the deceased might have been butchered at the Baithka or Bathan of appellant Nagina Koiri is difficult to be accepted. 34. However, the prosecution evidence which has come from RW.15 that the deceased might have been butchered at the Baithka or Bathan of appellant Nagina Koiri is difficult to be accepted. P.W.15 is the only witness on the point and has stated that he found blood on the brick part of the window of his Baithka and also found stains on the southern wall of the place. He has further stated that when the Superintendent of Police had supervised the case on 3.11.73, a piece of solid cement was also found at the lower part of the western wall of the said Bathan and that was bearing stains of blood. The blood was scrapped and the solid cement piece was also seized. But it is admitted by P.W.15 that neither he nor his successor- investigating officer sent the scrapped blood or the piece of solid cement for chemical analysis. Thus, what I find is that it remains indeed in doubt that the scrapped material was bearing human blood or the solid cement piece was having stains of similar substance. As such, I have great reservations in accepting the evidence that the deceased had been butchered either at the Bathan or Baithka of appellant Nagina Koiri. 35. It is true that the doctor has not been examined, but his non-examination in my view, does not make any difference because the dead body was recovered in two pieces is established beyond doubt by the evidence of witnesses who had come to depose in court. The man was picked up from the place as pointed out by the witnesses. The place was also found bearing marks of violence in the form of trampled vegetations. The evidence on record clearly established that the accused persons had captured the deceased and the witnesses P.Ws.6, 11 and 14 had seen him put on the ground and being gagged or strangulated. Their evidence further states that they had identified the accused persons in the flash of the torch light which was in the hand of P.W.11. P.W.11 has stated, as has been done by P.W.14 Muneshwar Singh, that the torch light was handed over to the investigating officer of the case which fact is corroborated by P.w.15 who has stated that he had seized the torch light and prepared the seizure memo which fact has not been disputed by the defence. P.W.11 has stated, as has been done by P.W.14 Muneshwar Singh, that the torch light was handed over to the investigating officer of the case which fact is corroborated by P.w.15 who has stated that he had seized the torch light and prepared the seizure memo which fact has not been disputed by the defence. Thus, the evidence on record clearly established that Gupteshwar Singh was captured by the appellants and other accused persons and was taken away as soon as the witnesses had arrived there. His dead body in two parts were recovered as appears from the evidence of the witnesses as also the very documents which have been brought on the record of the present trial in the form of Ext-13 and Ext-6/1 which are the FIR of Gomo G.R.P.S.Case No.15(10)73 and inquest report in connection with finding of the dead body from the open-box of the goods train. How the deceased was murdered could not be seen by any of the witnesses as the deceased was not murdered at the place or some where around it in their presence. It could be within the special knowledge of the appellants and other accused as to how the deceased was butchered by them after he had been captured and taken away. The finding of the dead body and identification of the same raises an inference against the appellants that after they had taken away the deceased they had killed him. 36. In view of the above findings, I find that the appeal is of no merit. Accordingly, the same is hereby dismissed. The appellants are on bail. They shall surrender in the court below to their bonds to serve out the remaining parts of their sentences. DINESH KUMAR SINGH, J. 37 I agree.