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Jharkhand High Court · body

2014 DIGILAW 135 (JHR)

Poulus Lakra v. State of Jharkhand

2014-01-22

D.N.PATEL, P.P.BHATT

body2014
Judgment D.N. Patel, J. 1. This appeal has been preferred by these three appellants against the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Fast Track Court No.-I, at Gumla, in Sessions Trial No.245 of 2000. All the three appellants have been convicted by the trial court vide order dated 8/9-11/2002 for life imprisonment for causing murder of the deceased, for the offence punishable under Section 302 of the Indian Penal Code. They are also punished for the rigorous imprisonment for five years under the offence punishable under Section 201 of the I.P.C. Against this judgment of conviction and order of sentence, the present appeal has been preferred. 2. The prosecution case is as under:- That on 9.7.2000 at 3 P.M., the informant Dandu Kahria (P.W.-5) gave fardbeyan to police that on 3.7.2000 (Monday) Chhedu Kharia (deceased) who was the son-in-law of Kotang Kharia came to his village to see the Rath Mela. On next day in the afternoon, informant son Ganesh Kharia and Chhedu Kharia went for walking and when they not returned till late night, then they searched them but could not find them. Then family member thought that they may have gone to some relatives. On next day in the morning the informant neighbour Somari Kumari said to him that she with Ganesh and Chhedu went to Tetal Toli in evening and they purchased snacks from a shop. Then one Sukhlal Bhokta met them and took both Ganesh and Chhedu with him for taking wine, then she returned to the village. Thereafter informant went to Tetar Toli but could not find his son there. Then on Saturday informant came to know that Sukhlal took both of them in the house of Kesho Devi who is the wife of Ramesh for taking wine. Next morning he came to know that 5-6 persons took his son and Chhedu towards hill. Then Kesho Devi said to the informant that in the evening of Tuesday Sukhlal, Polush Oraon, Shiv Charan Sahu, Kandara Oraon and two other persons took Ganesh and Chhedu towards hill. Thereafter informant and others started searching in the hill and reached near the Bijili Ghat in Gon Mere Hill and on the trace of foul smell they recovered the dead body of Chhedu and of Ganesh. Head of the Ganesh was chopped of and Chhedu had also cut injuries on his neck. Thereafter informant and others started searching in the hill and reached near the Bijili Ghat in Gon Mere Hill and on the trace of foul smell they recovered the dead body of Chhedu and of Ganesh. Head of the Ganesh was chopped of and Chhedu had also cut injuries on his neck. Both the dead bodies were mutilated by the animals. Nine witnesses were examined by the prosecution: P.W.-1 Mangra Kharia He has proved his signature on Inquest report i.e. marked as Ext.1 P.W.-2 Budhra Kharia He was the accused persons taking wine with deceased Ganesh Kharia and Chhedu Kharia P.W.-3 Somari Kumari She deposed that the accused Sukhal Bhokta took his brother in law Chhedu Kharia towards the hil and thereafter he did not return. P.W.-4 Mannu Kharia He deposed that he had seen the deceased Ganesh Kharia and Chhedu Kharia going toward Tetar Toli along with accused persons for taking wine. P.W.-5 Dandu Kharia He is the informant of this case and is father of Ganesh Kharia (deceased). He deposed that Police has seized the knife, on the information of accused Sukhal Bhogta. P.W.-6 Kotang Kharia He is the father in law of Chhedu Kharia (deceased). He deposed that one Somari Kumari told him that his son in law Chhedu Kharia had gone with Sukhal Bhogta towards Hill. P.W.-7 Dr. Ramesh Prasad He has conducted the postmortems of deceased Ganesh Kharia and Chhedu Kharia and has proved the Post mortems reports i.e. marked as Ext. 2 and 2/1 P.W.-8 Kesho Devi & Agasti Devi She has not supported the case of the prosecution. P.W.-9 Basudeo Mandal He is the Investigating officer of this case. He has proved the FIR in the handwriting and signature of officer Incharge Palkot police station i.e. marked as Ext.3. He has also proved the Inquest reports of dead bodies of deceased Chhotu Kharia and Ganesh Kharia i.e. marked as Ext.4 and 4/1. He further deposed that on the information of accused Sukhlal Bhokta he seized the blood stained Knife and has proved the seizure list i.e. marked as Ext.5. he also proved the forwarding note by the order of Chief Judicial Magistrate, Gumla for chemical examination of Knife in Forensic Science Laboratory i.e. marked as Ext.6 3. It is submitted by the counsel for the appellants that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. he also proved the forwarding note by the order of Chief Judicial Magistrate, Gumla for chemical examination of Knife in Forensic Science Laboratory i.e. marked as Ext.6 3. It is submitted by the counsel for the appellants that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial court and unnecessarily they have been treated as minor omissions, contradictions and improvements, and therefore, the judgment of conviction and order of sentence passed by the learned trial court deserves to be quashed and set aside. 4. Learned counsel appearing for the appellants has submitted that so far as P.W.-1 is concerned, he has given his deposition with material improvement about the fact that the appellants were in the company of the deceased while consuming liquor. The deposition of this P.W.-1 is to be read with the deposition of Investigating Officer, especially looking to the paragraph No.16 of the Investigating Officer, there is material improvement by this witness. This aspect of the matter has not been properly appreciated by the learned trial court and the 'last seen together theory' has not been proved by this prosecution witness. It is further submitted by the learned counsel for the appellant that similar is the case of the prosecution witness no.2. (Budhra Kharia). Here also this witness, during the examination in the court, has materially improved his version looking to the paragraph no.17 of the deposition by the Investigating Officer, who is P.W.-9. Thus, this witness has also failed to prove the 'last seen together theory' which is the very basis of the conviction. The learned trial court has not appreciated this major improvement made by P.W.-2 and hence also the judgment of conviction and order of sentence passed by the learned trial court deserves to be quashed and set aside. It is further submitted by the learned counsel for the appellants that P.W.-3, Somari Kumari, has also not seen these accused in the company of the deceased, but, she has stated before the court with all material improvements, the deposition of this P.W.-3 is required to be appreciated in the light of the deposition given by the P.W.-9 (in Paragarph No.18). Looking to the deposition of P.W.-3 to be read with the Paragraph 18 of the deposition of P.W.-9, this witness is also untrustworthy and unreliable and the learned trial court has failed to appreciate this aspect of the matter. The 'last seen together theory' has also not been proved by this witness. It is further submitted by the learned counsel for the appellants that P.W.-4, who is Mannu Kharia, has also not seen these appellants in the company of the deceased. There is a consistent error committed by the learned trial court that the depositions of the prosecution witnesses have been read in the isolation whereas, in fact, the learned trial court ought to have been read the depositions of the prosecution witnesses, always, in the light of the deposition given by the Investigating Officer-P.W.-9. So far as P.W.-4 is concerned, it submitted by the learned counsel for the appellants that he has never seen these appellants in the company of the deceased going towards the 'Bijli Ghat/Hill'. At the highest, this witness has stated that the day, on which the incident has taken place, was Festival Day, and therefore, several persons were in the company of rest of others, and these appellants were no exception to that aspect of the matter, and with this general statement of P.W.-4 that on the festival day, they were also seen in the company of the deceased, cannot be treated as last seen together, especially looking to the cross examination of this witness P.W.-4. Thus, P.W.-4 has also not proved that the appellants were in the company of the deceased as last seen together. So far as P.W.-5 is concerned, it is vehemently submitted by the learned counsel for the appellant Mr. Zaid Ahmed, on behalf of the appellants that P.W.-5, who is the informant, has never stated before the police several aspect of the matter nor in the F.I.R., which has been stated clearly in the deposition given by P.W.-9-the Investigating Officer in his paragraph No.22. Looking to the depositions given by P.W.-9, P.W.-10, especially in Paragraph No.22, there is a material improvement by this P.W.-5 in the deposition before the learned trial court. This witness has never seen these appellants in the company of the deceased while going towards the 'Bijli Ghat/Hill'. Looking to the depositions given by P.W.-9, P.W.-10, especially in Paragraph No.22, there is a material improvement by this P.W.-5 in the deposition before the learned trial court. This witness has never seen these appellants in the company of the deceased while going towards the 'Bijli Ghat/Hill'. This aspect of the matter of Paragraph No.22 of the deposition given by the Investigating Officer has not been properly appreciated by the learned trial court while evaluating the trustworthiness and reliableness of the P.W.-5. If the depositions of the P.W.-5 is read in isolation, this P.W.-5 may be reliable, but, looking to the depositions of the Investigating Officer, especially Paragraph No.22, this P.W.-5, is absolutely unreliable and untrustworthy and there is material improvement of this witness before the learned trial court, and hence also, the judgment of conviction and order of sentence passed by the learned trial court deserves to be quashed and set aside. Learned counsel appearing for the appellants has submitted that the P.W.-6 is the hearsay witness and he is father -in-law of the deceased -Chhedu Kharia and he has obtained the knowledge about the whole incident from the P.W.-3 and as stated hereinabove, the P.W.-3 is also untrustworthy and unreliable. So far as P.W.-8 is concerned, this witness has not supported the case of the prosecution. The P.W.-7, who is a doctor, has carried out the post mortem on the bodies of the deceased and P.W.-9 is the Investigating Officer, who has proved all these material contradictions, omissions and improvements. The learned counsel has also relied upon the explanation given by Section 162 of the Code of Criminal Procedure, 1973 (for the sake of brevity hereinafter referred to as the Cr.P.C.) and has submitted that looking to these material contradictions, omissions and improvements, it cannot be said that the prosecution has proved the offence beyond reasonable doubt. Infact, not a single prosecution witness has proved the 'last seen together theory'. In their depositions, there is nothing else but the material improvement of the case. Hence, the judgment of conviction and the order of sentence passed by the learned trial court deserves to be quashed and set aside. It is further vehemently submitted by the learned counsel for the appellants Mr. Zaid Ahmed that these appellants are in judicial custody since the last thirteen years and six months. 5. Hence, the judgment of conviction and the order of sentence passed by the learned trial court deserves to be quashed and set aside. It is further vehemently submitted by the learned counsel for the appellants Mr. Zaid Ahmed that these appellants are in judicial custody since the last thirteen years and six months. 5. We have heard the learned counsel-A.P.P. appearing for the State who has mainly submitted that no error has been committed by the learned trial court in evaluating the depositions of the prosecution witnesses. The case of the prosecution is based upon the 'last seen together theory' right from the F.I.R., which is filed by P.W.-5. It has been stated that these appellants were seen by several witnesses lastly in the company of the deceased, and thereafter, the body of the deceased persons were found out and the weapon-knife was found at the behest of the appellant No.3-namely Sukhal Bhogta. Learned A.P.P. further submitted that looking to the depositions given by the P.W.-1, who has proved the Inquest Report, which is marked as Ext.-1, he has also stated that both the deceased were in the company of the appellants on 4.7.2000. Similarly, the P.W.-2, P.W.-3 and P.W.-4 have also stated clearly before the learned trial court that they saw the appellants along with the deceased when they were moving in the village. Thereafter, they all had gone together to consume wine, and thereafter, both the deceased were going towards 'Bijili Ghat/Hill' in the company of these appellants, and thereafter, both the deceased were not traceable and their bodies were recovered within a day or two. They have also stated before the learned trial court that these witnesses-P.W.-2, P.W-3 and P.W.-4 have also stated before the learned trial court that the weapon -knife was also recovered because of the confessional statement made by the appellant no.3 namely Sukhal Bhogta. Thus, to this extent, confession made before the police under Section 27 of the Indian Evidence Act, 1872, is the relevant fact. Thus, to this extent, confession made before the police under Section 27 of the Indian Evidence Act, 1872, is the relevant fact. The informant is also examined as P.W.-5, who has also clearly stated in the F.I.R. as well as in the deposition before the learned trial court that the appellants were in the company of the deceased and they were going, after consuming wine, towards 'Bijili Ghat/Hill', and thereafter, both the deceased were not traceable and the dead bodies were found out from 'Bijili Ghat/Hill' and upon the confessional statement made by the accused No.3, who is also the original appellant no.3, before the police the weapon -knife was recovered. It is submitted by the A.P.P. that the medical evidence given by the P.W.-7 -the doctor, Dr. Ramesh Prasad, is corroborative to the depositions given by the P.W.-1, P.W.-2, P.W.-3, P.W.-4 and P.W.-5. The Seizure List has also been proved by P.W.-9, who is the Investigating Officer. Thus, the weapon was also recovered at the behest of one of the co -accused and all these appellants were lastly seen in the company of the deceased by several witnesses and no error, therefore, has been committed by the learned trial court in appreciating the depositions of these witnesses and the prosecution has proved the chain of circumstances and several circumstances has also been proved beyond the reasonable doubt and there is no missing of link in the chain of the circumstances, and hence, this Court may not interfere with the judgment of conviction and order of sentence passed by the learned trial court and this Criminal Appeal may not be allowed by this Court. 6. Having heard learned counsel for both the sides and looking to the evidences on record, we, hereby, quash and set aside the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Fast Track Court No. I, at Gumla, in Sessions Trial No.245 of 2000 dated 8/9-11-2002 mainly for the following facts, reasons and the evidences on record : (i) It is the case of the prosecution that P.W.-5, who is the informant had given the Ferdbeyan on 9.7.2000 at about 15:00 O'clock, that on 3.7.2000, Chhedu Kharia (deceased), who was son-in-law of Kotang Kharia, came to his village to see the Rath Mela. On the next day, in the afternoon, the son of the informant namely Ganesh Kharia (deceased) and Chhedu Kharia went for walking, thereafter, they never returned. The informant tried to search them out, but they were not traceable. On the next date morning, the P.W.-3, informed the family members of the informant that she had seen both the deceased going towards the Tetar Toli during evening hours of 3.7.2000 and they purchased some snacks from the shop. Then the appellant no.3, Sukhal Bhogta met with them and he took both the deceased with him for consuming liquor, and thereafter, P.W.-3, returned to the village. Gathering these information, the informant went to Tetar Toli, but the deceased were not found out. Then, the informant came to know that Sukhal Bhogta, who is the appellant no.3 (the original accused no.3 in the Sessions Trial) took both the deceased in the house of Kesho Devi (P.W.-8) for taking wine and he further came to know that some 5-6 persons took his son namely Ganesh Kharia (deceased) and Chhedu Kharia (deceased) towards Bijili Ghat/Hill. The informant has also informed to the P.W.-8 that these appellants and one Shiv Charan Sahu had taken both the deceased towards the Bijili Ghat/ Hill and getting these information, they started searching at Bijili Ghat/Hill and when they reached nearer, they had foul smell, this is how the dead body of both the deceased were recovered and this Ferdbeyan was given by the P.W.-5 before the P.W.-9, who is the Investigating Officer, thereafter, the Investigating Officer recorded the statements of several witnesses and on the basis of the evidences collected by the Investigating Officer, the charge sheet was filed against these three appellants mentioning that Shiv Charan Sahu is an absconding accused. The Sessions Trial bearing No.245 of 2000 was committed to the sessions court and on the basis of the evidences given by the prosecution witness No.-9, the learned trial court has convicted and sentenced these appellants for life imprisonment for causing murder of the deceased and these appellants have also been punished for rigorous imprisonment for five years for the offence punishable under Section 201 of the I.P.C. (ii) Thus, it appears that the P.W.-5, who is the informant and other witnesses have proved the 'last seen together theory'. It is also the case of the prosecution that the knife was recovered because of the confessional statement made by the appellant no.3-Sukhal Bhogta. Looking to the depositions given by the P.W.-1, it appears that this witness has stated before the trial court that he has put his signature on the Inquest Panchnama, which is given at Ext.-1. This witness has also stated about the fact that the appellants were lastly seen by him in the company of the deceased. Looking to the depositions given by the Investigating Officer -P.W.-9, especially, Paragraph no.16 of the deposition given by the Investigating Officer, this witness had not stated in his statement under Section 161 of the Code of Criminal Procedure that the appellants were in the company of the deceased. Thus, there is a material improvement of this witness. This aspect of the matter has not been properly appreciated by the learned trial court. (iii) Looking to the depositions given by the P.W.-2, who is Budhra Kharia, has also materially improved his version before the learned trial court. So far as recovery of the knife is concerned, looking to the deposition of this P.W.-2, to be read with the deposition given by P.W.-9, especially Paragraph No.-17 that this P.W.-2 is not a reliable witness at all. So far as recovery of knife is concerned, in the deposition given by the P.W.-9, it has never been stated by the Investigating Officer as per the Paragraph No.12 and Paragraph No.14 of his cross examination that the knife was recovered because of the confessional statement of the appellant No.-3. Looking to the cross examination of P.W.-2, Paragraph No.-6, also the prosecution has not proved the recovery of the knife because of the confessional statement of the appellant No.3, nor this witness has proved the 'last seen together theory'. This aspect of the matter has also not been properly appreciated by the learned trial court. (iv) Looking to the deposition given by the P.W.-3, Somari Kumari, this is an important witness so far as the prosecution is concerned because this P.W.-3 had given vital information to the informant and on the basis of which, the whole offence has been registered and the criminal law was put in motion. Learned counsel Mr. (iv) Looking to the deposition given by the P.W.-3, Somari Kumari, this is an important witness so far as the prosecution is concerned because this P.W.-3 had given vital information to the informant and on the basis of which, the whole offence has been registered and the criminal law was put in motion. Learned counsel Mr. Zaid Ahmed appearing for the appellants has read and re-read this deposition given by the P.W.-3 and he has rightly submitted on behalf of the appellants that this witness is also untrustworthy and unreliable. This witness-P.W.-3 has stated in the First Information Report that all these appellants were seen lastly in the company of the deceased when they were going towards the Bijili Ghat/Hill. This fact stated before the learned trial court is a material improvement looking to the Paragraph No.18 of the depositions given by the P.W.-9. This aspect of the matter has also not been properly appreciated by the learned trial court. Thus, this witness has also failed to prove the 'last seen together theory'. Moreover, this witness has also stated before the learned trial court in his deposition that the knife was recovered at the behest of the appellant no.3. It is also the false deposition looking to the deposition given by the Investigating Officer, especially Paragraph Nos.-12 and 14 of the depositions of P.W.-9. Thus, this witness is neither proving the 'last seen together theory' nor the recovery of the weapon because of the confessional statement made by the appellant no.3. (v) Looking to the depositions given by P.W.-4, this witness has also not proved the 'last seen together theory'. These appellants are not in the company of the deceased looking to the depositions of P.W.-4, looking to the examination in chief, deposition of P.W.-4 and his cross examination. This witness has given a zig-zag type of deposition before the learned trial court. His examination in chief has been demolished in the cross examination. Looking to the cross examination of the Investigating Officer, P.W.-9, in Paragraph No.-21, it has been stated by the Investigating Officer that the statement of Mannu Kharia recorded in the case diary in general along with the names of the other persons, who were 5-6 in number. We are unable to understand this type of novice methodology adopted by the Investigating Officer. We are unable to understand this type of novice methodology adopted by the Investigating Officer. This hopeless method adopted by the Investigating Officer is running counter to Sections 161, 172 and 173 of the Code of Criminal Procedure and the provisions of the Jharkhand Police Manual. It has to be kept in mind by the Investigating Officer that the statement under Section 161 Cr. P.C. of the witnesses must have been written separately except for exceptional reasons. For ready reference, Sections 161, 172 and 173 of the Code of Criminal Procedure are being quoted herein below, which read as under: “161. Examination of witnesses by police.-(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. Provided that statement made under this sub-section may also be recorded by audio-video electronic means. xx xx xx 172. Diary of proceedings in investigation.-(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. (1A) The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872) shall apply. 173. Report of police officer on completion of investigation.-(1) Every investigation under this Chapter shall be completed without unnecessary delay. (1A) The investigation in relation to rape or a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station. (2)(i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f ) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170; (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C or 376D of the Indian Penal Code (45 of 1860). (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on this bond, the Magistrate shall made such order for the discharge of such bond or otherwise as thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and where upon such investigation the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). Thus, in view of Section 161(3) Cr.P.C. it is a duty of the Investigating Officer to reduce in writing any statement made to him in course of an examination under Section 161(1) Cr.P.C. and this Investigating Officer shall make a separate and true record of statement of each such person whose statement he records. As per Section 172(1) Cr.P.C. diary of the proceedings in the investigation shall be maintained and as per Section 172(1A) Cr.P.C. the statements of the witnesses recorded during course of investigation under Section 161 Cr.P.C. shall be inserted in the case diary. Under Section 172(3) Cr.P.C. neither the accused nor his agent shall be entitled to call for such case diary. They are not even entitled to see the case diary, merely because the court has made a reference of the case diary. But, the police officer who prepared the case diary can use it to refresh his memory and if the court uses the case diary for contradicting such police officer, the accused may be entitled to get the case diary. Thus, the case diary cannot be given to the accused as a matter of rule and only in exceptional cases, case diary can be given to the accused. In the State of Jharkhand, Investigating Officers are not recording the statements under Section 161 Cr.P.C. separately. They are writing the statements under Section 161 Cr.P.C. in the case diary itself and, therefore, they are giving whole case diary to the accused. In the State of Jharkhand, Investigating Officers are not recording the statements under Section 161 Cr.P.C. separately. They are writing the statements under Section 161 Cr.P.C. in the case diary itself and, therefore, they are giving whole case diary to the accused. This is in grossest violation of Section 161 and 172 Cr.P.C. As per Section 173(5) Cr.P.C., only those documents can be given to the accused, which are relied upon by the prosecution. As per sub-section (5) of Section 173 Cr.P.C., along with Chalan or charge sheet the statements recorded under Section 161 Cr.P.C. of all the persons to whom the prosecution proposes to examine as witnesses, must be forwarded to the Magistrate. e.g., police is investigating into a murder case and has recorded statements of 30 persons and if the prosecution is going to examine only 15 persons as prosecution witnesses, then as per Section 173(5) Cr.P.C. statements of other persons are not to be given to the accused whereas in the State of Jharkhand, police is recording the statements in the case diary itself and, therefore, they are giving whole case diary to the accused, which includes the statements of the persons, who are not going to be examined as prosecution witnesses. Therefore, all the statements under Section 161 Cr.P.C. should be recorded separately. (vi) The provision of the Jharkhand Police Manual is more observed in breach than in compliance by the Investigating Officer in the State of Jharkhand. The relevant provisions of Jharkhand Police Manual, which mandates recording of the statements under Section 161 Cr. P.C., separately, is as under : “164. Case Diaries -(a) Every Investigating Officer shall keep a record of the proceedings of his investigation in a diary in P.M. Form no.30 or 30A, mentioning the particulars required by section 172 Cr.P.C. The main heads of information received from persons enquired shall be recorded very briefly in narrative form. The Police Officer shall record the statements given by such persons as far as possible separately in their own words. Mention shall be made of all steps taken by the investigating officer and every incident of the investigation which may have a bearing on the result. The diary should be made as short and concise as possible. The Police Officer shall record the statements given by such persons as far as possible separately in their own words. Mention shall be made of all steps taken by the investigating officer and every incident of the investigation which may have a bearing on the result. The diary should be made as short and concise as possible. In cases under trial the investigating officer can record evidence in first person in accordance with section 161 Cr.P.C. but the signatures of witnesses shall not be taken on such statements. Separate books shall be made available at each P.S. for recording such statements and its pages shall be numbered. As many copies of such statements shall be prepared as are made of case diaries so that one copy of statement can be attached with each copy. The approved form for writing case diary shall be used for recording statements. (b) The diary shall be written up as the enquiry progresses and as soon practicable after each step in the investigation. The hour of each entry and name of the place at which it is written shall be noted in it. (c) A note shall be made at the end of each day's diary of the place from, the hour at, and means by which it is dispatched. The points on which investigation is pending shall also be written in it. (d) Two or more cases shall not be reported in one case diary. The diary shall be submitted daily until the enquiry is completed except on days on which the investigation is not proceeded with. But when simultaneous investigation is made into two or more connected cases, it will be sufficient if full particulars are reported in one diary only and a reference made to this in the others. (e) Neither a summary of the investigation nor particulars of the case shall be recorded in the last diary, which shall show merely the number and date of the charge-sheet or final report (see Rules 174 and 181). (f) Copies to be dispatched daily. -Subject to provision of the sub-rule (g) below at the close of each day, one carbon copy of the diary shall be dispatched to the Inspector and the latter on getting it shall read it and forward it to sub-divisional Police Officer, if posted, and give an indication of the action taken in the Crime Index. -Subject to provision of the sub-rule (g) below at the close of each day, one carbon copy of the diary shall be dispatched to the Inspector and the latter on getting it shall read it and forward it to sub-divisional Police Officer, if posted, and give an indication of the action taken in the Crime Index. Where the sub-divisional Police Officer is not posted, the case diary shall be kept in the office of Inspector. If any instruction is given to the investigating officer, he will prepare three copies of instructions in P.M. Form no.30A. Its two copies shall be given to Investigator. After compliance the investigating officer will keep on copy of instructions with his copy of the case diary and return the other copy to Inspector (see note to Rule 41 (3)). The Inspector will paste this with the original. The remarks of other superior officers can be noted in the margin of the case diary. (g) A broad division of cases for supervision is given in Rule 173(c) and Appendix 3 although there is no bar for a Superintendent to supervise any case as per Rule 49. Similarly, it does not absolve a Sub-divisional Police Officer and /or a Circle Inspector as per Rule 54 (a) of their responsibility of guiding investigation of all cases in their area. However in cases of 'A' Category in Appendix 3, a copy of the case diary shall be sent direct to Superintendent and another copy shall be forwarded to Sub-divisional Police Officer by Circle Inspector as in Rule 164(a). Similarly in 'B' Category of Appendix 3 a copy of case diary shall be sent direct to Sub-divisional Police Officer and another copy forwarded to Superintendent by Inspector. N.B.-The original diaries are attached to the charge -sheet (Rule 175) and returned by the prosecutor when, the case is over (Rule 279). They are then docketed with the number, month an year of the first information report, the final form submitted and the name of the complainant, the accused and the investigating officer and filed at the police station (Rule 1027). In final report cases, the original case diaries are not sent to court office but file in the same way. They are then docketed with the number, month an year of the first information report, the final form submitted and the name of the complainant, the accused and the investigating officer and filed at the police station (Rule 1027). In final report cases, the original case diaries are not sent to court office but file in the same way. (h) All officers are warned of their responsibility for ensuring that copies of case diaries or their Annexures do not find their way in to the hands of unauthorized persons (see Rules 62 and 279). (i) The following procedure shall be fully observed :- (i) The despatch of all case diaries must be entered in despatch register as well as in the station diary. It shall be sent in sealed covers an on the envelope, the case number and diary number shall be noted. Every investigating officer shall have a personal seal made with his initials. The expenditure on this account may be met from the district allotment. (ii) If an investigating officer is in the Muffasil, he must route his case diaries thorough the police station. In the station office, the despatch number with the date shall be noted on the envelop. The concerned case and diary numbers shall be noted in the station diary without examining the contents, after satisfying that the seals are intact. (iii) All such sealed envelopes shall be opened personally by the Inspector, S.D.P.O., and Superintendent of Police and not by any subordinate. These case diaries must always be kept safely and under lock and key by the superior officers (see Rule 1010). (iv) If due to some reason, the case diary cannot be written on any particular day, on which it should be written the date on which it is written should be given. At the same time the reason should also be noted as to why diaries could not be written in time. Wrong date should not be written in any circumstance. (v) In case diary, any overwriting is strictly prohibited. If there is any mistake in writing, the words should be neatly scored through and correct words shall be written separately. If there is a necessity of noting any matter again the entries shall not be made over written lines or inside them but it should be done in the manner indicated above. If there is any mistake in writing, the words should be neatly scored through and correct words shall be written separately. If there is a necessity of noting any matter again the entries shall not be made over written lines or inside them but it should be done in the manner indicated above. (vi) When a case diary is completed, the investigating officer must narrate the following facts after writing the accounts of investigation of completed full day and before closing the diary :- (a) Which witnesses (names to be given) were questioned ? (b) Any bad characters (names) were looked up or not? (c) Whether any exhibit despatched to the Chemical Examiner and whether the opinion of any doctor received regarding any weapon or injury ? (d) Which houses searched? (e) Whether applications for warrant of arrest and processes under sections 82 and 83, Criminal Procedure Code made or not ? (f) Consultation of the Crime Directory and other Police records; and (g) Any other specific lines of investigation.” The object is not only to indicate the future line of investigation of investigating officer but to assure themselves that the work done in course of investigation in day time, has been entered point by point in the diary. The aforesaid provisions are not ornamental in nature. They are meant for the Investigating Officer and the Investigating Officer ought to comply with that. In the State of Jharkhand, in not a single case, the Investigating Officer has recorded separately the statements under Section 161 Cr.P.C. The high ranking officers of the police ought to have taken care of compliance of the provisions of the Code of Criminal Procedure, 1973. In exceptional case, what is allowed is not to be followed in general. In the State of Jharkhand exceptional situation has been treated as a rule. Previously also, we have called upon Shri Upendra Kumar, who is the Principal of Police Training Centre, at Hazaribagh, and we had passed an order that this aspect of the matter should be taught properly at the time of training to the police. We, therefore, direct the police of the State of Jharkhand that the Statement under Section 161 Cr. Previously also, we have called upon Shri Upendra Kumar, who is the Principal of Police Training Centre, at Hazaribagh, and we had passed an order that this aspect of the matter should be taught properly at the time of training to the police. We, therefore, direct the police of the State of Jharkhand that the Statement under Section 161 Cr. P.C. henceforth shall be recorded separately and summary thereof should be mentioned in the case diary and this case diary must be sent to the high ranking police officers periodically as per the Government order or administrative instructions issued. We direct the Secretary, Home Department, Government of Jharkhand as well as to the Director General of Police, State of Jharkhand, to issue necessary circular or instructions for recording of the statement under Section 161 Cr.P.C. separately henceforth by the police officers who are investigating the criminal cases and summary of the statement shall be mentioned in the case diary which will be sent to the high ranking officers. (vii) The police officers, specially the Investigating Officers of the State ought to keep in mind the difference between the statement under Section 161 Cr.P.C., summary thereof to be recorded in the case diary and what documents are to be supplied with the report to be filed under Section 173 of the Cr.P.C. (popularly known as the charge sheet). The statements of the witnesses, which are relied upon by the prosecution, should be supplied to the accused, meaning thereby the statement of the witnesses, who are not relied upon by the prosecution, are not to be supplied to the accused, and therefore, if all the statements are recorded in the case diary, a situation will come that if the police has recorded e.g. the statement of 20 witnesses, and if the Investigating officer is relying only upon 15 statements given by the witnesses, the left out five statements of the witnesses which may be inconsistent with the investigation theory, will also go along with the case diary to the accused and this is not permissible in the eye of law. The case diary cannot be given to the accused. But, in the State of Jharkhand, the police officer are avoiding their labour to write separately the statements of the witnesses under Section 161 Cr.P.C., and thereafter, they have to write summary of this statements in the case diary. The case diary cannot be given to the accused. But, in the State of Jharkhand, the police officer are avoiding their labour to write separately the statements of the witnesses under Section 161 Cr.P.C., and thereafter, they have to write summary of this statements in the case diary. The Police officers do not want to write twice this type of the statements and the summary thereof, therefore, it appears that instead of recording the statements under Section 161 Cr. P.C. separately, to save the labour, they are writing directly the whole statement in the case diary, and the resultant effect will be that the statements of those witnesses which are not relied upon by the prosecution while filing the report under Section 173 Cr.P.C.(chargesheet/challan) will also go to accused along with charge sheet and will be utilized by the accused and sometimes they are examining them as a defence witness. This type of methodology adopted by the police of the State of Jharkhand must be stopped forthwith and this is what as referred to in the Jharkhand State Police Manual also. The high ranking officers of the police in this State of Jharkhand should have envisaged all these aspects of the matter much earlier. The State is bifurcated in the year 2000 and it appears that the high ranking officers of the police in the State, have never given direction to the Investigating Officers of the State. (a) We, therefore, direct the Investigating Officers of the State that summary of record henceforth separately the statements under Section 161 of the Cr.P.C. The statements of the witnesses shall not be recorded directly in the case diary henceforth. (b) We further direct the Investigating Officer of the State that summary of the statements of the witnesses recorded under Section 161 Cr.P.C. shall be recorded in a in the case diary and the said case diary shall be forwarded to the high ranking police officers as per their circular or police manual either daily or weekly or fortnightly. (c) We further direct the police of the State and the Investigating Officers of the State that there is no need that the Investigating Officer to supply the whole copy of the case diary henceforth to the accused. (c) We further direct the police of the State and the Investigating Officers of the State that there is no need that the Investigating Officer to supply the whole copy of the case diary henceforth to the accused. Suffice it will be, whenever they are filing the report under Section 173 of the Cr.P.C. (popularly known as charge sheet), only those statements of the witnesses recorded under Section 161 of the Cr. P.C. of the witnesses shall be supplied to the accused, who are going to be relied upon by the prosecution. It appears that Section 161 of the Cr. P.C. is more observed in breach than in compliance and the Jharkhand State Police Manual is also not being observed by the Investigating Officers and it is a high time for the In-charge of the Police Training Center to take this aspect into their education curriculum. The statements of the witnesses, recorded by the police, who were found consistent with the prosecution theory and as per Section 173(5)(b) Cr.P.C. statements of all those persons, are to be supplied with charge sheet, who are going to be examined as prosecution witnesses. Thus, consistent and inconsistent statements ought to be separated under Section 173 Cr.P.C. There is no legal obligation on the part of the police to supply all the statements recorded by the Police. On the contrary, the law is that only those statements of the witnesses should be supplied to the accused, who are relied upon by the prosecution as per Section 173(5)(a) Cr.P.C. This is also to be interpreted in the light of the provisions of Section 207 of the Code of Criminal Procedure, 1973. Here in Jharkhand whole case diary is given to accused as chargesheet. This chaos type of situation created by the Investigating Officers in this State, by their ignorance, requires to be brought to an end forthwith. Here in Jharkhand whole case diary is given to accused as chargesheet. This chaos type of situation created by the Investigating Officers in this State, by their ignorance, requires to be brought to an end forthwith. For ready reference, Section 207 and 208 of the Cr.P.C. , is as under :- 207: Supply to the accused of copy of police report and other documents :-In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the police report; (ii) the first information report recorded under Section 154; (iii) the statement recorded under Sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164; (v) any other document or relevant extract thereof forwarded to the magistrate with the police report under sub-section (5) of section 173; Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. 208. 208. Supply of copies of statements and documents to accused in other cases triable by Court of Session.-Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the statements recorded under section 200 or section 202, or all persons examined by the Magistrate; (ii) the statements and confessions, if any, recorded under section 161 or section 164; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely; Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. (viii) Looking to the depositions given by the P.W.-5, who is the informant and the father of one of the deceased, has also given his deposition before the learned trial court with material improvement. Evaluating the depositions given by the P.W.-5, vis-a-vis the depositions given by the P.W.-9, the Investigating Officer, especially in Paragraph No.22, this P.W.-5 has failed to prove beyond reasonable doubt the last 'seen together theory' of these appellants. This witness is also not reliable so far as the recovery of the weapon is concerned, looking to the Paragraph Nos.12 and 14 of the depositions given by the P.W.-9. Thus, the P.W.-5 is not proving the fact of the company of the appellants with the deceased on the day of murder or even in a proximity thereof. (ix) The prosecution has also not proved the motive in this case. There is no evidence on record which proves any motive and the whole case of the prosecution is based upon circumstantial evidence. This aspect of the matter has also not been appreciated by the learned trial court. (x) The P.W.-6, who is a hearsay witness, is father in law of the deceased namely Chhedu Kharia and he has stated that he was informed by P.W.-3 that these appellants had gone in the company of the deceased towards 'Bijili Ghat/Hill' as stated hereinabove, the P.W.-3 is also not a reliable and is untrustworthy witness. (x) The P.W.-6, who is a hearsay witness, is father in law of the deceased namely Chhedu Kharia and he has stated that he was informed by P.W.-3 that these appellants had gone in the company of the deceased towards 'Bijili Ghat/Hill' as stated hereinabove, the P.W.-3 is also not a reliable and is untrustworthy witness. So far as P.W.-8 is concerned, she has not supported the case of the prosecution. The P.W.-7 is a doctor, Dr. Ramesh Prasad, who has carried out the postmortem on the bodies of the deceased persons, looking to the depositions given by the P.W.-9 who is Investigating Officer and as stated hereinabove in several Paragraphs of his depositions, he has proved the material improvement in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial court. Looking to these aspects of the prosecution witnesses, they have failed to prove that these appellants were lastly seen in the company of the deceased and the prosecution witnesses are also failed to prove the recovery of the weapon-knife because of the confessional statement made by the appellant No.3. Moreover, looking to the medical evidence given by the P.W.-7, it is opined by the doctor that the injuries noted upon the body of the deceased Ganesh Kharia cannot be caused by the knife. Thus, looking to the evidences on record, it appears that the learned trial court has not at all appreciated the major improvements, omissions and contradictions proved by the Investigating Officer. Moreover, the so called recovery of the knife was also not sealed properly as stated by the Investigating Officer and no report from Forensic Science Laboratory has been received by the Investigating Officer nor the same was adduced as an evidence before the learned trial court. 7. Looking to all the aforesaid evidences, the offence of murder committed by these appellants beyond reasonable doubt is not proved by the prosecution. This aspect of the matter has not been properly appreciated by the learned trial court. Hence, we, hereby, quash and set aside the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Fast Track Court No. I, at Gumla, in Sessions Trial No.245 of 2000 dated 8/9-11-2002. This aspect of the matter has not been properly appreciated by the learned trial court. Hence, we, hereby, quash and set aside the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Fast Track Court No. I, at Gumla, in Sessions Trial No.245 of 2000 dated 8/9-11-2002. The appellants are in judicial custody and they are ordered to be released forthwith from the judicial custody, if their presence in jail is not required in any other offence. 8. This appeal is, accordingly, allowed. 9. It, however, appears that Form No.30 of Jharkhand Police Manual is inconsistent with the provisions of the Code of Criminal Procedure, 1973, especially looking to the provisions of Section 171 to be read with Section 172 to be read with Section 173 Cr.P.C. As per this Form No. 30 of Jharkhand Police Manual, the whole statement is to be inserted in the case diary under Section 161 Cr.P.C. and, therefore, perhaps in the State of Jharkhand the whole case diary is being given to the accused. This is running counter to Section 161, Section 162, Section 172, and Section 173(5) and 173(6) Cr.P.C. 10. We, therefore, request the Law Commission of the State of Jharkhand to examine this aspect and necessary recommendations may be made to the State Government by the State Law Commission for suitable changes in Jharkhand Police Manual more particularly in Form No.30, thereof. This Jharkhand Police Manual must have been prepared much earlier in point of time or with slight modification the same might have been adopted from the Bihar Police Manual. Looking to Code of Criminal Procedure, 1973, enacted by the Parliament, Form No. 30 of the Jharkhand Police Manual should be in consonance with the Code of Criminal Procedure. 11. We hereby direct the Registrar General of this Court to immediately send a copy of this judgment to: (i) Principal District Judge and Judicial Commissioner and thereafter they shall percolate this judgment to other Judges in their district. (ii) Law Commission of the State of Jharkhand. (iii) Secretary, Department of Home, Government of Jharkhand, Ranchi; (iv) Director General of Police, Jharkhand, Ranchi; (v) Principal of Police Training Center, Hazaribagh; (vi) The District Superintendent of Police of all the districts of this State; and (vii) Director, Judicial Academy, State of Jharkhand, Ranchi;