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2016 DIGILAW 471 (GAU)

Sarif Uddin Son of Mozaid Ali v. State of Assam

2016-05-26

A.K.GOSWAMI, INDIRA SHAH

body2016
JUDGMENT AND ORDER : A.K. Goswami, J. This appeal is directed against a judgment and order dated 28.11.2011 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 89/2009 whereby the appellant was convicted under Section 457, 323, 324, 302 IPC and sentenced to suffer rigorous imprisonment for life along with fine of Rs. 5000/-, in default, to suffer rigorous imprisonment of one year for his conviction under Section 302 IPC. The appellant was also sentenced to suffer rigorous imprisonment for two years along with a fine of Rs. 1000/-, in default, rigorous imprisonment for a period of two months for the offence under Section 457 IPC, rigorous imprisonment for a period of two months for the offence under Section 323 IPC and also rigorous imprisonment for a period of two years for the offence under Section 324 IPC. It was observed that all the sentences would run concurrently. 2. On 21.10.2008, one Motahir Ali (PW 2) lodged an ejahar before the Officer-in-Charge of Patherkandi police Station stating that at around 7 P.M. on 20.10.2008, taking advantage of his absence, the appellant had entered into his house by pushing the bamboo door and grabbed his daughter Swapna Begum (PW 4) with an intention to commit "bad act" on her. When his daughter raised a hue and cry, his another daughter, Mayarun Nessa, aged about 42 years and his granddaughter, Rina Begum, aged about 9 years (PW 5), who were in the adjacent house, came to the place of occurrence where upon the accused took out a dagger he had brought with him, and dealt a cut blow in the neck of Mayarun Nessa as a result of which she fell down on the ground. Swapna Begum (PW4), Rina Begum (PW5), and Sayarun Nessa (PW6) tried to apprehend the accused and in the process Swapna and Rina also sustained grievous injuries as they were inflicted cut blows with dagger and thereafter the accused fled from the scene of occurrence. Mayarun Nessa breathed her last and hearing the commotion nearby people had come and informed the police. At around 8.30 P.M., when he reached home and saw the dead body of his daughter and after coming to know of the incident in detail, he went and lodged the ejahar. 3. On receipt of the aforesaid ejahar (Ext. Mayarun Nessa breathed her last and hearing the commotion nearby people had come and informed the police. At around 8.30 P.M., when he reached home and saw the dead body of his daughter and after coming to know of the incident in detail, he went and lodged the ejahar. 3. On receipt of the aforesaid ejahar (Ext. 9), Patherkandi Police Station Case No. 154/2008 under Section 457, 354, 323, 302 IPC was registered. Police set in motion the investigation. During the course of investigation, statement of PW4 and PW5 were recorded under Section 164 CrPC, which were exhibited as Ext.-3 and Ext.-4, respectively. After completion of investigation, police submitted charge sheet against the accused under Section 457, 354, 324, 302 IPC. 4. As the case was exclusively triable by the court of Sessions, the case was committed to the Court of the learned Sessions Judge, Karimganj wherein Session Case No. 89/2009 corresponding to GR case No. 949/2008 was registered. 5. After hearing the learned counsel for the parties, charge was framed against the appellant under Section 457, 354, 324, 323, 302 IPC. The charges being read over to the appellant, he pleaded not guilty and claimed to be tried. 6. During trial, prosecution examined 12 witnesses and defence plea was that of denial. The accused in his statement under Section 313 Cr.P.C. pleaded that he was innocent. However, no evidence was adduced on behalf of the defence. 7. On completion of trial, the learned Sessions Judge convicted the accused appellant as noticed herein above. Hence, this appeal. 8. We heard Mr. S.K. Agarwal, learned Amicus curiae, representing the appellant, as well as Mr. K.A. Majumdar, learned Additional Public Prosecutor, Assam. 9. Mr. Agarwal has submitted that much before the ejahar was lodged by PW1 at 11-00 A.M. of the next day of the occurrence, evidence on record discloses that the police had already arrived at the place of occurrence and started investigation and, therefore, the ejahar is hit by Section 162 of the CrPC. He has submitted that the prosecution has suppressed the GD Entry on the basis of which police had arrived at the place of occurrence and, thus, the prosecution had not come up with the actual genesis of the occurrence and the appellant is falsely implicated. He has submitted that the prosecution has suppressed the GD Entry on the basis of which police had arrived at the place of occurrence and, thus, the prosecution had not come up with the actual genesis of the occurrence and the appellant is falsely implicated. It is submitted by him that there are grave discrepancies in the evidence of PW4 and PW5, both of whom are child witnesses, and, therefore, conviction cannot be sustained on the basis of such evidence. It has also been pointed out by him that PW4 and PW5 being child witnesses, the learned trial court did not appreciate their evidence as is enjoined by the Apex Court. He contends that PW7, PW8 and PW9 had deposed that PW4 had informed them about the occurrence at the Bazar, which is one kilometer away from the residence of PW4, but PW4 was conspicuously silent on this aspect. The evidence of PW2 discloses that PW6 had to be called later on from her residence and, therefore, the evidence of PW6 that she had witnessed the appellant coming out of the house of PW1 is doubtful. Learned Amicus curiae has emphatically urged that the brother of the deceased committed murder of the brother of the appellant and, therefore, the appellant is falsely implicated. Accordingly, he submits that the impugned judgment is lieble to be set aside and the appellant to be acquitted of the charge. In support of his submission, Mr. Agarwal has placed reliance on the following judgments: Mukul Mandal Vs. The State of Assam, reported in 1997 (3) GLT 256, State of Delhi Vs. Vijay Pal, reported in (1980) 1 SCC 582 and Bircha Kurmi Vs. State of Assam, reported in 2013(4) GLT 1017. 10. Mr. Majaumdar, learned Additional Public Prosecutor has submitted that PW5 is an injured witness and the incident occurred in the house of PW1, and PW4 being unmarried daughter of PW1, was residing therein and, therefore, PW4 and PW5 are natural witnesses and that the defence failed to impeach their evidence and their evidence being reliable and truthful, can be acted upon for the purpose of conviction of the appellant. He has contended that failure to exhibit GD Entry, in the facts of the case, will not be of any consequence inasmuch as, according to PW11, one Muzammil Hussain, who apparently is not a member of the family, had informed the police about the occurrence and the cryptic information given by him does not constitute an FIR and, therefore, even though the ejahar was lodged later on, after the police had come to the place of occurrence, the same is not hit by the proviso of Section 162 CrPC. In support of his contention, Mr. Majumdar has placed reliance on the following judgments: Yanob Sheikh alias Gagu Vs. State of West Bengal, reported in (2012) 6 SCC 428, Masaddar Ali and Another Vs. The State of Assam, reported in (1990) 2 GLR 11, Suryanarayana Vs. State of Karnataka, reported in (2001) 9 SCC 129 and Panchhi and Others Vs. State of U.P. reported in (1998) 7 SCC 177 . 11. We have considered the submissions of the learned counsel for the parties and have perused the materials on record. 12. At the outset, it is appropriate to have a look at the evidence adduced by the prosecution. 13. PW 1 is the Medical and Health Officer of Civil Hospital of Karimganj who had conducted post-mortem examination on 21.10.2008 on the dead body of Mayarun Nessa. He had deposed that he had found the following injuries: "1. Cut injury over neck (anterior) 6 cm x 2 cm x up to large post wall cutting veins and larynx up to posterior wall. 2. Cut injury over neck (lateral right side 4 cm x 2 cm x bone deep cutting jugular vein (R) side and neck muscles on right side. 3. Cut (L) arm lateral 6 cm x 2 cm x bone deep 4. Cut injury on back (R) middle part 3 cm x 1 cm x bone deep ............................." He had also proved the post-mortem report as Ext. 1 and according to his opinion, death was due to shock and haemorrhage resulting from the injuries sustained. 14. PW 2 is the informant and in his deposition he had stated that the occurrence had taken place at around 7 P.M. when he was away from home and attending a marriage ceremony. At the time, Mayarun Nessa, Rina Begum (PW 5), Swapna Begum (PW 4) and Sayarun Nessa (PW 6) were present at home. 14. PW 2 is the informant and in his deposition he had stated that the occurrence had taken place at around 7 P.M. when he was away from home and attending a marriage ceremony. At the time, Mayarun Nessa, Rina Begum (PW 5), Swapna Begum (PW 4) and Sayarun Nessa (PW 6) were present at home. While he was on his way back home he was informed by some people that his daughter Mayarun Nessa had been killed by the accused appellant and hearing the same he rushed home and saw Mayarun Nessa lying dead and also found Rina Begum (PW5) with injuries on both her hands and chest and was bleeding. He was informed by his daughter Swapna Begum (PW 4) that at that time she was chopping vegetables. The accused appellant Sarif Uddin came and grabbed her and as such she had raised shout and hearing her shouts Rina Begum (PW 5) and Mayarun Nessa (deceased) came and caught hold of the appellant. She informed him that the accused inflicted injuries on Mayarun Nessa as a result of which she fell down and that the injuries were caused by dagger. After causing injuries to Mayarun Nessa, the accused had inflicted injuries to Rina Begum (PW 5) and thereafter to Swapna Begum (PW 4) on her head and then fled away. He had also stated that neighbouring people including one Gias Uddin had come. Police also came to the place of occurrence and he was unable to say who informed the police. He had stated that police had sent Rina and Swapna for medical treatment and that the police had seized one dagger, one broken wrist watch chain and a torch light. He also deposed that he had lodged the ejahar at about 11 A.M. on the next day. In his cross-examination, he had stated that the accused is his cousin and his son was in jail on being convicted for murdering the brother of the accused. He deposed that he has two sons and four daughters out of which three daughters are married and Swapna Begum (PW 4) is the youngest and is unmarried. His further deposition is to the effect that he has two houses and he lives in the western side of the house with Swapna and his wife while his son Samrul lives in a separate house. His further deposition is to the effect that he has two houses and he lives in the western side of the house with Swapna and his wife while his son Samrul lives in a separate house. He stated that Police had arrived at the place of occurrence at 8 P.M. and on that day no ejahar was lodged though verbal information was given. He had stated that Sayarun Nessa (PW6) lives with her children in a house in the southern side which is at a distance of 3/4 cubits from the northern house. Her eldest daughter is about 16 years of age. Sayarun Nessa (PW6) was in a Namaz and she also came hearing the shouts. It was also deposed that the incident occurred on a full-moon night. 15. PW 3 is Gias Uddin and he deposed that about one year four months before, while he was returning home, at around 7 P.M., he heard shouts coming from the house of Motahir Ali (PW 1) and accordingly he went there. He found Mayarun Nessa lying on the ground with profuse bleeding and also saw Swapna Begum (PW4) and Rina Begum (PW5) in injured condition. On being asked, he was told that the accused appellant entered into the house and grabbed Swapna Begum with evil intention and as Swapna raised shouts, Mayarun Nessa and Rina Begum (PW5) came there, whereupon the accused inflicted injuries on their persons. Some other people had also gathered in the meantime and police had also come while he was still there and he was a witness to the seizure list (Ext. 2) by which a dagger, a torch light and a wrist watch chain were seized. In his cross-examination, he stated that he was an accused in a murder case for killing the brother of the accused. 16. PW 4 is Swapna Begum. She deposed that accused Sarif Uddin is the son of her uncle. It is stated by her that she was at home with Mayarun Nessa and Rina Begum (PW 5). Her parents had gone to attend a marriage ceremony. While she was chopping vegetables in the kitchen, she heard sounds of opening the door and after some time the accused entered into the room and caught hold of her. When she raised shouts, Mayarun Nessa and Rina Begum (PW5) came from the adjacent room to save her. Her parents had gone to attend a marriage ceremony. While she was chopping vegetables in the kitchen, she heard sounds of opening the door and after some time the accused entered into the room and caught hold of her. When she raised shouts, Mayarun Nessa and Rina Begum (PW5) came from the adjacent room to save her. The accused, taking out a dagger, inflicted injuries on Mayarun Nessa as a consequence of which she fell on the ground. In her attempt to obstruct the accused, Rina Begum (PW5) got injuries inflicted on her chest and arms and in the ensuing scuffle, a dagger, a gas lighter and part of a wrist watch chain fell in the ground. Hearing the commotion, Sayarun Nessa (PW 6) also came to the place of the occurrence from the adjacent house. The accused ran away from the place of occurrence felling PW4 on the ground. Mayarun Nessa died at the place of occurrence some time later. Police had come to the place of occurrence in an hour's time and they had seized these items. Neighbours had also come to the place of occurrence. She also deposed that her statements were recorded in the Court (Ext. 3). In her cross examination, she stated that they did not have electricity in their house and one lamp was there in the kitchen and Mayarun Nessa was assaulted near the kitchen. They were sent to hospital with some people but the police personnel did not accompany them. She had also deposed that police had taken a written paper from them wherein narration of the occurrence was given. She further stated that Majbul Hoque and Bodoi informed police over mobile phone but she did not hear the telephonic conversation. She also affirmed that her brother Matasin Ali was convicted for the offence of murder of the brother of the accused. She also stated that her parents had come back from the marriage and thereafter her father had gone to the police station and had met them on their way to the hospital. Their father had also gone to the hospital at around 11 P.M. 17. Rina Begum (PW5), was aged about 9 (nine) years. She stated that she is the daughter of Sayarun Nessa (PW6). Their father had also gone to the hospital at around 11 P.M. 17. Rina Begum (PW5), was aged about 9 (nine) years. She stated that she is the daughter of Sayarun Nessa (PW6). She stated that about 1½ year before, at the time of the occurrence, she was sleeping at home and, on hearing the cry raised by Swapna Begum (PW4), she came out and saw the accused catching hold of Swapna Begum (PW4). Thereafter, Mayarun Nessa came and tried to rescue her. The accused struck Mayarun Nessa on her neck, belly and back whereupon she fell on the ground. As they went to resist the accused, he struck her on her chest and arms by means of a dagger and she also fell down on the ground and became senseless. On regaining senses, she saw police in the house. She was taken to Patherkandi Hospital for treatment. She also made statement in Court. She also proved her statement before the Court as Exhibit-4. In her cross-examination, she stated that they could recognise the culprit in the light of the lamp and she did not know the persons with whom she had been sent to the hospital by the police. However, she stated that her mother and grandmother had accompanied them to the hospital. In the morning, her grandfather, Matahar Ali (PW1), had gone to the police station and at that time they were present in the police station. She denied the suggestion that some dacoits had entered into the house and had assaulted them. 18. PW6 is Sayarun Nessa, who deposed that she lived in the same homestead of her parents but in a separate house. Swapna Begum (PW4), Rina Begum (PW5) and Mayarun Nessa (deceased) lived in the adjacent house. At the time of the occurrence, she was offering prayer in the house and, hearing shouts of Swapna Begum (PW4) and Rina Begum (PW5), she went there and saw accused Sarif Uddin. He pushed her away and left the place. Entering the house, she saw Swapna Begum (PW4) and Rina Begum (PW5) in injured condition and Mayarun Nessa lying dead. Swapna Begum (PW4) and Rina Begum (PW5) had reported her that they had been assaulted by the accused and had killed Mayarun Nessa. By then, people had gathered and police had also been informed and accordingly. Police came. Entering the house, she saw Swapna Begum (PW4) and Rina Begum (PW5) in injured condition and Mayarun Nessa lying dead. Swapna Begum (PW4) and Rina Begum (PW5) had reported her that they had been assaulted by the accused and had killed Mayarun Nessa. By then, people had gathered and police had also been informed and accordingly. Police came. Thereafter, the injured were sent to the hospital by the police. In her cross-examination, she stated that she is separate and her husband's house is at considerable distance away in a different place. On the night of occurrence, police personnel came at around 8:00 PM and had stayed back for about 1½ hour. Police had sent Swapna Begum (PW4) and Rina Begum (PW5) to Patherkandi Hospital. She had also accompanied the injured to the hospital but she did not see her father in the hospital. She had gone to the police station between 11:00 - 12:00 PM but did not report anything to the police at that time but Rina Begum (PW5) and Swapna Begum (PW4) had informed the police of the occurrence. One Majbul Hoque had informed the police of the incident of death of Mayarun Nessa over phone. She also denied that some dacoits came to the house of Mayarun Nessa to assault them. 19. PW-7, Majbul Hoque, deposed that while he was at the Bazaar, Swapna Begum (PW4) came and told that her sister had been assaulted and on being asked, she stated that the accused had killed her sister. Accordingly, he went to their house and saw Mayarun Nessa lying dead on the ground in a pool of blood. He informed police over phone and thereafter, police came. Rina Begum (PW5) was also injured and she also reported about the occurrence. In his cross-examination, it is stated by him that there are some houses in the neighbourhood and the house of Swapna Begum (PW4) is situated about 1 Km from the Bazaar. Mayarun Nessa had come to the house of her father on "Nayor". He also deposed that house of Sayarun Nessa (PW6) is of 100 meters away from the house of Swapna Begum (PW4). It is further stated by him that Tahir (PW10) and Islam Uddin were along with him when he came to the place of occurrence. He was also given the suggestion that PW4 did not inform him about the occurrence. 20. It is further stated by him that Tahir (PW10) and Islam Uddin were along with him when he came to the place of occurrence. He was also given the suggestion that PW4 did not inform him about the occurrence. 20. PW 8 is one Md. Badar Uddin, who also deposed that Swapna Begum (PW4) had come to the Bazaar, where he was, and reported that her sister had been assaulted. Police was informed about the incident over phone by Majbul Hoque (PW7). He went to the place of occurrence with police and found the dead body of Mayarun Nessa lying in a pool of blood with marks of injuries. He stated that Swapna Begum (PW4) and Rina Begum (PW5) had told him that the accused had killed Mayarun Nessa. He stated that Rina Begum (PW5) sustained injuries on her chest and hand and Swapna Begum (PW4) on her hand. In his cross-examination, he stated that Swapna Begum (PW4) did not tell him who had assaulted her sister at the Bazaar. 21. PW9 is a Doctor at Patherkandi Primary Health Centre, who examined Swapna Begum (PW4) at around 10:15 PM on 21.10.2008 as well as Rina Begum (PW-5). He had deposed with regard to the injuries on Swapna Begum (PW4) as follows:- "Injuries - About one day old oblique abrasion (5 cm X 1 cm) was in the left shoulder. Inference - The aforesaid injury was caused due to friction against rough surface and was simple in nature. Ext. 5 is said report and Ext 5(1) is my signature." As regards Rina Begum (PW5), he stated as follows:- "She was conscious. Pulse was high. Chest - clear, CVS - Iachycardia. Injuries - 1. Fresh stab injury (2 cm X 1 cm X 1 cm) was in the left upper anterior chest wall. 2. Fresh oblique cut injury (5 cm X ½ cm X ½ cm) was in the antero lateral side of the middle of left forearm. 3. Fresh abrasion was in the medial side of distal part of right arm. The patient was referred to Civil Hospital, Karimganj on 20/10/08 at 10-30 p.m. for investigation & treatment. Inference - Injury no 1 was caused with sharp pointed object. Nature of this injury cannot be said without investigation report. Injury No.2 was caused with sharp object and was simple in nature. The patient was referred to Civil Hospital, Karimganj on 20/10/08 at 10-30 p.m. for investigation & treatment. Inference - Injury no 1 was caused with sharp pointed object. Nature of this injury cannot be said without investigation report. Injury No.2 was caused with sharp object and was simple in nature. Injury no.3 was caused due to friction against rough surface and was simple in nature." He proved his reports as Exhibits-5 and 6. In his cross-examination, he denied the suggestions that the injuries could be caused by fall on hard substance. 22. PW 10 is Md. Tahir Ali and he deposed that while he was standing near "Shib Bari Mokum", Swapna Begum (PW4) and Jamsher Ali came running to him and had told that her sister had been killed and requested him and others to go to the place of occurrence with her. Accordingly, he went to the house with Swapna Begum (PW4) with Majbul Ali (PW7) and others where he found Maya Begum lying dead with marks of injuries. He also found Rina Begum (PW5) with injuries on her face and hand and there was none else in the house at that point of time. He stated that Swapna had told him that the accused had killed Maya Begum and also had caused injuries to Rina Begum (PW5). It is asserted by him that Majbul Hoque (PW7) informed police and police had come in about half an hour's time. He is also a witness to the seizure list (Exhibit-2). Rina Begum was sent to hospital. In cross-examination, he stated that the distance between "Shib Bari Mokam" and the house of Swapna Begum (PW4) is about 1 Km and in the immediate neighbourhood of the place of occurrence, about 18/20 people reside. He was accompanied from the Mokam by several persons and did not find any neighbourhood people when they reached the place of occurrence. While they were there in the place of occurrence, police had come at around 8:00 PM and Swapna Begum (PW4) reported the incident to police verbally. He deposed that house of Sayarun Nessa (PW6) is situated at a distance of about ½ Km from the place of occurrence and she was brought to the place of occurrence by two persons, who were sent. Husband of Maya Begum also came to the place of occurrence on being informed about the incident. He deposed that house of Sayarun Nessa (PW6) is situated at a distance of about ½ Km from the place of occurrence and she was brought to the place of occurrence by two persons, who were sent. Husband of Maya Begum also came to the place of occurrence on being informed about the incident. He stated that three days before the occurrence, two unidentified persons had been found in their village and they had been assaulted by the villagers. After assault, they had stated that they were relatives of Motahir Ali. He denied the suggestion that he was not informed about the incident by PW4. 23. PW 11 is the Investigating Officer, who stated that on 20.10.2008, the Officer-in-Charge of Patherkandi Police Station got a telephonic information at around 8:30 PM that the daughter of Motahir Ali (PW 2) had been murdered and, accordingly, GD Entry No.502 dated 20.10.2008, was made and he was asked to initiate the investigation. Accordingly, he conducted the investigation. He prepared a sketch map (Exhibit 7) and had also seized one Saree and blood-stained blouse vide Exhibit 8. In cross-examination, he stated that one Mujammil Ali gave telephonic information. In his re-examination, he also deposed that during the course of investigation, he had seized one dagger with wooden butt, one white and yellow plastic torch light and one broken piece of wrist watch chain. On further cross, it was stated by him that Badar Uddin (PW8) had stated before that he (PW8) had gone to the place of occurrence on hearing sound and he (PW8) had not stated that he went along with the villagers. He also declined the suggestion that there were houses of neighbouring people near the place of occurrence and he asserted that the houses are situated away from the place of occurrence. 24. PW-12 is another Investigating Officer, who had laid the charge-sheet (Exhibit-9). He deposed about recording of statement by Swapna Begum (PW 4) and Rina Begum (PW5) under Section 164 CrPC on 04.11.2008. 25. From the evidence of PW1, it is manifest that the deceased had sustained cut injuries on her neck, arm and back and she died due to shock and haemorrhage resulting from the injuries sustained. 26. PW11, in his evidence had indicated that he had sent one of the injured to hospital. 25. From the evidence of PW1, it is manifest that the deceased had sustained cut injuries on her neck, arm and back and she died due to shock and haemorrhage resulting from the injuries sustained. 26. PW11, in his evidence had indicated that he had sent one of the injured to hospital. Therefore, it appears to us that PW4 was not examined by PW9 on police requisition. However, evidence of PW9 makes it clear that both PW4 and PW5 were examined by him on police requisition. Though in the first part of the examination of PW9, he had stated that he had examined PW4 and PW5 on 21.10.08, from the later part of his evidence it is manifest that they were examined on 20.10.2008. The injuries of PW4 were stated to be about one day old. The evidence of PW9 goes to show that PW5 had suffered stab as well as cut injuries. It is clear that PW5 had suffered three injuries, which were all fresh and it can be said with certainty that the injuries were caused in the incident on 20.10.2008. 27. PW4 had stated that PW7 and one Bodoi had informed the police about the incident over telephone. PW8 and PW10 also stated that PW7 had informed the police about the incident. 28. Minor contradictions regarding who accompanied the injured to the hospital or when the father had visited the hospital will not, in any manner, impact the prosecution case and such contradictions, in such a situation, cannot be termed to be unnatural. Similarly, the evidence of PW7, PW8 and PW10 that PW4 had come and informed them in the bazaar/Mokam and that PW4 not mentioning the same does not affect the core of the prosecution case. What is of essence is that they all stated that they knew the identity of the assailant of Mayarun Nessa on being told by PW4, discounting any false implication of the accused later on. 29. The evidence of PW11 goes to show that he had started investigation in connection with Patherkandi Police Station GD Entry No. 502 dated 20.10.2008 and that extract copy of the GD Entry is available with the diary. He also stated that GD Entry was recorded on the basis of information received from one Muzammil Ali over telephone. PW 11 also stated, and his evidence is not impeached, that no written information was lodged on 20.10.2008. He also stated that GD Entry was recorded on the basis of information received from one Muzammil Ali over telephone. PW 11 also stated, and his evidence is not impeached, that no written information was lodged on 20.10.2008. 30. In Yanob Sheikh (supra), it was observed that a First Information Report normally should give the basic essential in relation to the commission of a cognisable offence upon which the Investigation Officer can immediately start his investigation in accordance with the provisions of Section 154 CrPC. It was further observed that cryptic telephonic message cannot be treated as FIR as their objective is only to get the police to the scene of offence and not to register the FIR. Information which gives no details would not constitute First Information Report as contemplated under Section 154 of the CrPC but there is an obligation on the part of the police officer to register the information received by him in respect of commission of a cognisable offence. 31. In Mukul Mandal (supra), this Court had held that a subsequently lodged FIR after commencement of investigation would be hit by Section 162 CrPC. Similar view was taken in Masaddar Ali (supra). 32. In the instant case, there is a difference of about 14 hours between the recording of the GD Entry and the lodging of the FIR (Ext.-9) and, during this time gap, steps in investigation had been taken as admitted by PW11 himself. In the circumstances, Ext.-9 cannot be treated as an FIR within the meaning of Section 154 CrPC, at best, it can be treated as previous statement of the maker which can only be used for the purpose of contradicting the witnesses. 33. It appears that prior to PW7 informing the police, police had received information about the occurrence from one Muzammil Ali and based on the information received from him, investigation was started. PW11 had himself stated about the recording of GD Entry No. 502 dated 20.10.2008, and, therefore, we are unable to agree with the submission of Mr. Agarwal that there was suppression of GD Entry. Non-mentioning of the name of the accused in the first information given over telephone, in the circumstances of the case, would not be material in view of the evidence of PW4 and PW5, who had corroborated each other on the material aspects relating to assault made on Mayarun Nessa. Agarwal that there was suppression of GD Entry. Non-mentioning of the name of the accused in the first information given over telephone, in the circumstances of the case, would not be material in view of the evidence of PW4 and PW5, who had corroborated each other on the material aspects relating to assault made on Mayarun Nessa. Not exhibiting the GD Entry is a lapse on the part of the prosecution and for this lapse, cause of justice cannot be allowed to suffer, especially when no prejudice is caused to the accused because of not exhibiting the same. All the prosecution witnesses had deposed that they were told immediately who the assailant of Mayarun Nessa was. Except PW6, there was no other elderly family member present when name of the accused came to be known. Parents of PW4 and the deceased were not at home and they came home much later and, in the circumstances, there was no possibility of PW4 and PW5 being tutored to state the event in a particular manner implicating the appellant. Defence had not been able to shake their evidence and, besides, PW5 suffered injuries while making an attempt, despite her tender age, to save her aunt, i.e., the deceased. 34. In Bircha Kurmi (supra), this Court, in paragraph 21, had stated that the trial Judge is not merely a recording machine of evidence given by the witnesses nor can he be a silent spectator to the evidence produced by the parties. Though a trial Judge must not drop the mantle of a Judge and assume the role of a prosecutor or a defence counsel, the fact remains that his duty is to reach the truth and Section 165 of the Evidence Act gives the Judge adequate power and authority to put any question to any witness at any time - be it during the course of examination-in-chief or cross-examination or at the end of any such examination or re-examination, which, to the Judge, appears to be necessary for a just decision of the case and in order to discover or obtain proof of relevant fact. If the prosecution omits to bring out any relevant fact, or the defence, in the cross-examination, elicits a response which is obscure or incomplete, it is the duty of the Judge to remove such obscurity or incompleteness by putting appropriate questions so that evidence becomes clear and intelligible. 35. If the prosecution omits to bring out any relevant fact, or the defence, in the cross-examination, elicits a response which is obscure or incomplete, it is the duty of the Judge to remove such obscurity or incompleteness by putting appropriate questions so that evidence becomes clear and intelligible. 35. The accused is a relative of both PW4 and PW5 and, therefore, not a stranger. Though Mr. Agarwal has submitted that identification of the accused could not have been possible because of the darkness, we are unable to agree with his submission as PW4 has specifically stated that at the time of the occurrence, there was a lighted lamp in the house. 36. In Suryanarayana (supra), the Apex Court had stated that the evidence of a child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. Evidence of a child witness would require the court to scrutinise its evidence with care and caution. If the child is shown to have stood the test of cross-examination and there is no infirmity in its evidence, the prosecution can rightly claim a conviction based upon its testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. 37. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. 37. In Panchhi (supra), the Apex Court held that the evidence of the child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon, as the rule of corroboration is of practical wisdom than of law. 38. We find the evidence of PW4 and PW5 to be truthful and reliable and conviction can be sustained on the basis of their testimony. 39. In view of the above discussions, we are of the opinion that no interference is called for with the judgment of the learned trial Court. Accordingly, the appeal is dismissed. 40. Registry will send back the LCR.