Krishna Kumar Vs. State of U.P  INSC 236 (30 March 2010)
SUPREME COURT OF INDIA CRIMINIAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.
1718 OF 2007 PATAI @ KRISHNA KUMAR ...APPELLANT VERSUS WITH CRIMINAL APPEAL NO.
1719 OF 2007
These two appeals arise out of a common judgment and order dated
08.11.2006 passed by the High Court of Allahabad dismissing the appeals filed
by the appellants herein against their conviction and sentence under Section
302 read with Section 34 of the Indian Penal Code (for short the
Shri Prithvi Pal Singh alias Chandra Prakash Singh, son of the
deceased had lodged a report at the Police Station Maharajpur, District Kanpur
contending, inter alia, that on 29.07.1977 while he alongwith his father,
Vikramaditya Singh and one Sri Jagannath Dubey were coming back to their
village by Kanpur Allahabad Passenger Train from the Court of Munsif Hawali,
Kanpur where a litigation was pending between his father Vikramaditya Singh and
Sri Ganesh Singh and others, they alighted at the Rooma Halt Station for the
purpose of going to their house. Further allegation was that the accused Sri
Shrawan Kumar, Sri Patai @ Krishna Kumar and Brij Kishore, who were armed with
country made pistols, accosted the deceased.
It was alleged that the accused Ganesh Singh, who was travelling
in the same train but in a different compartment, after alighting from the
train exhorted that it is the opportune time to eliminate Sri Vikramaditya
Singh, the deceased, whereupon the present appellants Brij Kishore and Patai @
Krishna Kumar dragged his father from the 2 platform of the station to a place
under a Peepal tree whereupon Sri Shrawan Kumar and Ganesh Singh put their country
made pistols at the deceased and fired shots consequent to which Vikramaditya
Singh died instantaneously. On hue and cry having been made by Prithvi Pal
Singh @ Chandra Prakash Singh - the informant and Sri Jagannath Dubey, Sri
Iqbal, Sri Mahendra Singh, Sri Ram Prasad Sharma and some other persons of
village Gangaganj came to the place of occurrence and saw the appellants
running away from that place. It is further alleged that Prithvi Pal Singh had
written the First Information Report at the spot itself and had submitted the
same to the Police Station wherein an entry was made.
After registering a case, investigation was conducted during the
course of which all the accused persons were arrested.
completion of the investigation, a chargesheet was filed against all the
accused persons under Section 302 read with Section 34 IPC. As many as 8
prosecution witnesses were examined which included, among others, Prithvi Pal
Singh, P.W. 1, Jagannath Dubey, P.W. 3, Sri Iqbal Singh, 3 P.W. 4. Sri Girja Shanker
Yadav, the Sub-Inspector who had started the investigation was examined as P.W.
Pundrik who had conducted the post mortem examination on the dead body was
examined as PW-7. The accused persons were examined under Section 313 of the
CrPC and on completion of the trial, the arguments of the counsel appearing for
the parties were heard.
The learned trial Court, after appreciating the evidence on record
passed a judgment and order dated 12.03.1980 finding all the accused persons
guilty of the charge under Section 302 read with Section 34 of the IPC and
convicted all of them under the aforesaid sections. By a separate order, they
were sentenced to undergo imprisonment for life.
Being aggrieved by the aforesaid judgment and order passed by the
trial Court, three separate appeals were filed by the accused persons - one by
Shrawan Kumar and Brij Kishore and the others by Ganesh Singh & Patai @
Krishna Kumar respectively. The High Court after considering the entire 4
record upheld the order of conviction and sentence and dismissed all the
Being aggrieved by the aforesaid judgment and order passed by the
High Court, the accused Ganesh Singh and Sri Patai filed an appeal in this
Court which was registered as Criminal Appeal No. 1718 of 2007 whereas the
accused Brij Kishore filed a separate appeal which was registered in this Court
as Criminal Appeal No. 1719 of 2007. As the facts and legal issues urged in
both these appeals are similar in nature, we propose to dispose of both the said
appeals by this common judgment and order. Before adverting to the other
issues, we may record that during the pendency of the present appeal, one of
the appellants namely Ganesh Singh died and therefore his appeal stands abated.
Thus, in the present appeals we are concerned with only the two accused persons
namely, Sri Patai and Brij Kishore.
Both the counsel appearing for the said two accused persons namely
Patai and Brij Kishore very forcefully submitted before us that none of the
aforesaid two 5 appellants had fired any shot at the deceased and the
allegations that have been made against them are that they were only holding
the deceased and consequently, it could not have been held that there was any
pre-conceived or pre- concerted meeting of minds and therefore their conviction
under Section 302 read with Section 34 IPC is illegal.
It was also submitted that the prosecution has failed to prove
that the present appellants had shared an intention common with that of the
other two accused persons namely Ganesh and Shrawan Kumar who had in fact fired
shots from their country made pistols at the deceased resulting in his death.
The next submission of the counsel appearing for the appellants was that this
is a case where there were two separate First Information Reports lodged with
the police - the first one was lodged at about 4.30 p.m. by the Assistant
Station Master whereas the First Information Report second in point of time was
lodged by P.W. 1 at about 5.15 p.m.
counsel for the appellant forcefully contended before us that since the said
First Information Report indicates that there was no eye-witness to the
occurrence, framing and 6 calling of the three eye-witnesses by the prosecution
could not and should not have been believed and hence the prosecution story
It was also submitted that under any circumstance it could not be
said that the present appellants are guilty of charge under Section 302 and at
the most they could be charged under Section 304 of the Indian Penal Code.
We have considered the aforesaid submission in the light of which
we have carefully scrutinized the records. Since there was a specific
submission that there were two separate First Information Reports lodged with
the police on the same date as aforesaid, we have analyzed the entire records.
The alleged First Information Report stated to have been lodged by the
Assistant Station Master is placed on record as Annexure P-1.
The aforesaid report given by the Assistant Station Master appears
to be a telephonic message which was sent by the Cabin man at the Rooma Halt
Station to GRP. The text of the message reads as follows: - 7 "Message at
16.20 hrs. One passenger was shot dead at Roome cabin got down by 2 KA
passenger p1 proved and arranged disposal of dead body."
It therefore appears that the aforesaid message was sent by the
Cabin man through the Assistant Station Master to the GRP which was received at
the GRP and on the basis of which a chik report Ext. Kha-5 was prepared. This
also finds corroboration in the deposition of Shri O.N. Pandey, DW-1.
He has also stated in his evidence that he registered a case in GD
No. 72, the true copy of which is Ext. Kha-8. He further stated that at 4.40
p.m., he sent a message to the control room on telephone and also gave a
wireless message to the Maharajpur Police Station, but he has admitted that he
had sent the wireless message through the control room.
however nothing on record to indicate that the aforesaid report was sent to the
Maharajpur Police Station immediately and the same was received at the Police
Station Maharajpur prior to the lodging of the report given by P.W.
Besides, the aforesaid alleged report given by the 8 Assistant Station Master
appears to be very cryptic and without any details regarding the manner in
which the incident had taken place or mentioning the name of the deceased.
Considering the contents of the said message, it cannot be said
that there was any possibility of recording a First Information Report on the
basis of the message sent to the GRP by the Assistant Station Master. There is
no concrete evidence to indicate that any such information was in fact sent and
received at the police station. In order for a message or communication to be
qualified to be a First Information Report, there must be something in the
nature of a complaint or accusation or at least some information of the crime
given with the object of setting the police or criminal law into motion. It is
true that a First Information Report need not contain the minutest details as
to how the offence had taken place nor it is required to contain the names of
the offenders or the witnesses. But it must at least contain some information
about the crime committed as also some information about the manner in which
the 9 cognizable offence has been committed. A cryptic message recording an
occurrence cannot be termed as a First Information Report.
In Ramsinh Bavaji Jadeja v. State (1994) 2 SCC 685, this Court,
while dealing with the issue as to when investigation commences, observed with
regard to the cryptic nature of a message as follows in para 7 of that
.................................. If the telephonic message is cryptic in
nature and the officer in charge, proceeds to the place of occurrence on basis
of that information to find out the details of the nature of the offence
itself, then it cannot be said that the information, which had been received by
him on telephone, shall be deemed to be first information report. The object
and purpose of giving such telephonic message is not to lodge the first
information report, but to request the officer in charge of the police station
to reach the place of occurrence. On the other hand, if the information given
on telephone is not cryptic and on basis of that information, the officer in
charge, is prima facie satisfied about the commission of a cognizable offence
and he proceeds from the police station after recording such information, to
investigate such offence then any statement made by any person in respect of
the said offence including about the participants, shall be deemed to be a
statement made by a person to the police officer "in the course of
investigation", covered by Section 162 of the Code. That statement cannot
be treated as first information report. But any telephonic information about
commission of a cognizable offence irrespective of the nature and details of
such information cannot be treated as first information
In the present case, however, there is no proof regarding the fact
that the said information was sent to the Police at 10 Maharajpur and that it
was received and therefore, the said information cannot be said to be earliest
first information report submitted to the police. The actual first information
report as appears to us from the record is the report which was submitted by
P.W. 1, Prithvi Pal Singh, the informant at 5.15 p.m. Therefore, the contention
urged by the counsel of the appellants that there were two separate First
Information Reports lodged with the police on the day of the occurrence is
without any merit.
The Investigating Officer has clearly stated in his deposition
that he had recovered three tickets from the possession of the deceased. From
the said deposition, it is thus clearly established that on the fateful day
i.e. 29.07.1977 not only the deceased was travelling by the aforesaid train but
the two other persons namely, P.W. 1, Prithvi Pal Singh, the informant and P.W.
3 Sri Jagannath Dubey, also travelled with him in the same train and all the
three got down at the Rooma Halt Railway Station where the incident had taken
place. Therefore, there is no reasonable ground to doubt that P.W. 1, the
informant and P.W. 3 are not the 11 natural witnesses. They had in fact
accompanied the deceased and also observed and saw the manner in which the
entire incident had happened and taken place. P.W. 4, Iqbal Singh was also a
fellow traveller in the same train who had also got down at the Rooma Halt
Station. He has clearly stated that he had seen the occurrence. There is
nothing on record to cast a doubt as to the presence of P.W.
4 also at
the time and at the place of occurrence. The evidence adduced by P.W. 1 and
P.W. 3 clearly corroborate each other with respect to the fact that both the
present appellants had accosted the deceased with pistols in their hands and
both of them had dragged the deceased from the platform to the place near the
Peepal tree where he was shot dead by the other two accused persons.
The evidence adduced thus clearly establishes that all the four
accused persons carried weapons with them and at the exhortation of Sri Ganesh
Singh that it is the opportune time to eliminate the deceased, accused persons
namely Brij Kishore and Patai dragged the deceased from the platform to the
Peepal tree, where the deceased was shot dead by the 12 other two accused
persons namely, Sri Shrawan Kumar and Sri Ganesh Singh. A pre-concerted mind
and a common intention to commit the offence are apparent on the face of the
record. Section 33, IPC defines the expression "act" in the following
word "act" denotes as well a series of acts as a single act."
34, on the other hand, lays down that when a criminal act is done by several
persons in furtherance of the common intention of all, each of such persons is
liable for that act in the same manner as if it were done by him alone.
In our considered opinion, here is a case where the appellants
have committed the act of accosting the deceased with pistols and dragging him
away from the platform to a place near the Peepal tree at the exhortation given
by Sri Ganesh Singh. Therefore, it could be said that not only the two
appellants were present at the scene of offence but they actively participated
in the commission of the offence by doing acts in furtherance of the common
intention of killing 13 the deceased. Therefore, the contention of the counsel
appearing for the appellants stands rejected.
It was also submitted by one of the counsel that the First
Information Report submitted by P.W.-1 was actually written by the Police
Officer or at least at his dictation and the same could not have been drawn up
at the place of occurrence as alleged. The aforesaid submission is not
supported by any evidence on record.
On the other hand P.W. 1 has clearly stated in his statement that
he had drawn up the said first information report at the place of occurrence in
his own handwriting.
that the said first information report is in a neat and clean handwriting
cannot always lead to the conclusion that the said report was prepared by the
police officer or at his dictation. If the hand writing of the writer of the
information is neat and clean and he could express himself clearly, no fault
could be found against such writing. In the present case, there is a clear
deposition of PW-1 that it was drawn by himself and in his own hand writing and
there is 14 no evidence to impeach or doubt the said statement of the witness.
Consequently, the aforesaid submission is also found to be without any merit.
Considering the entire facts and circumstances of the case, we are
of the considered opinion that the prosecution has been able to establish by
leading cogent and reliable evidence, the guilt of both the accused persons who
are appellants before this Court, and therefore their conviction and sentence
under Section 302 read with Section 34 IPC cannot be said to be in any manner
illegal or unjustified.
The appeals, therefore, have no merit and are dismissed.
records may be transmitted immediately.
....................................J. [Dr. Mukundakam Sharma]
.......................................J. [A.K. Patnaik]
MARCH 30, 2010.