BALESHWAR RAI & Ors. v. THE STATE OF BIHAR ·

MunHOLK.A.R, J.-This judgment will govern Criminal Appeals nos. 177 ap.d 178 also. All these three appeals arise out of the same trial. The learned Additiona.l Sessions Judge, Monghyr who oonduoted the trial convicted the appellant, Ram oha.ndra Chaudhary who is appellant in Criminal Appeal No. 177 of 1961 for an olfence under s. 302 Indian Penal Code. He also oonvioted B~leshwar Re.i alias Nepali Master, appellant in this appeal and Jogendra Che.udhary, appellant in Criminal Appeal No. 178 of 11161 of a.n olfenoo under s. 302 read with s. 34, India.n Penal Code. He sentenced each of the three to dee.th. Their appeals were dis· missed by the High Court of Patna, and sentenoes of death passed against them were confirmed by it. They have come up before this .Court by special leave. The prORecntion story is briefly as follows : On March 17, 1959 at about l!.00 p.m. the chaukidars of the village Fateha had &111embled, as usual, in the 'crime centre' of the v~llage. Their names are-Anandi Paswan, (deoeaaed), Misri Pas wan (P.W.2), Baleshwar Paswan (P.W.3) a.ud Na.rain Paswan. Anandi Pe.swan a.nd Misri Paswan were lying on a chouki. Anandi Paswan had a 'bhala' and a •murethe.' while Misri Paswan had a •pharaa' and I\ 'muretha'. These weapons as well as the shirt of the deooased were kept on the ohouki. The other two choukidars were lying on the ground. The crime centre is housed in the 'de.Ian' of Tilak. Cha.udhary (P.W.6). One other person, Srili.l Che.udha.ry, ( f' .W. 7), the brother of Tila.k Chaudhary, was also lying there on the khatia on the north-east of the aa.id In an a.dja.cent room were P.W.11 Nathuni 'dalan'. Cliaudhary alias Durga Das and P.W.12 Ramcha.n der Jha. • . " ' i 2 S.C.R • SUPREUE COURT REPORTS ___ -435- 1962 Balashwa • Rai · v ..... Th• State oJ Bihat · -M uahoU:u J. According to the prosecution a little ·before 9.00 p.m. someone from outside called out '•Daroga· ji". On hearing this, the deceased Anandi Pa.swan and llfisri Pa.swan got up. It was a ~oonlit night and they saw Ramchander · Chaudhary, Jogendra Chaudhary and another person, who was later identi· fled to be Ne[Jali .!\faster, standin~ closeby. As soon as they went towards the appellants, Jogendra Chaudhary and Nepali l\Iaster caught the deceased whilfl Ramchandra Chaudhary caught Misri Pa.swan. Both Ramchandra Chaudhary and Jogendra Chau· dhary had guns with them which were slung across their shoulders. TheM three persons then took the deceased and .Uisri Pa.swan to the road to the East of the 'dalan', running north to south, and proceed· ed southward. N~ither ·the deceased nor .Misri Pa.swan raised any cry, apparently because they were threatened that if they did so, they would be . shot. When tha p:uty re1ched the place to the west ·of one Peare Sao's house and to the east of the 'house of Rampratap Tanti (P.W. 5). the deceased called for Rampratap's help, and freeing himself from the clutches of his captors started nmning way westward. Upon this ·Ramchandra. Chaudhary let go the hand of Misri Paswan and fired at'the de· ceased. · l\Iisri Pa.swan then ran into the house of Peare Sao and too~ shelter there: While entering that house, he heard a second gun shot .. His pre- . sence in the house was detected by ~Ist. Ajo(P.W.8), the wife of Peare Sao who forced him to leave the house. Thereafter he came . out into the lane and concealed himself behind the door.· After the moon had set and it became dark, he went to the house of Fakir Pa.swan (P.W. 4), which is to the east of the house of Peare S 10, and narrated the occurrence to him. He mentioned Ramchandra and J ogendra as the two personB who lt:id taken part in the incident. In the early hours of the morning he - went to the place where gun shots were fired, and found Anandi Paswan, chaukidar lying dead in a 1161 Ba/11/noor Rai •• TA1 State of Bihar MudhM~ar J. 436 SUPREME OOURT REPORTS (1963] ditch by the side of the road, face downwards. He noticed that Anandi Paswan had received two gun shot wounds on his back. Thereafter he went home and contacted the other chaukidar, Narain Paswan and Bal~sws.r Paswan. He placed them in charge of the dead body and then went to the police sta tion a loo~ with Ramrleo, son of the rlecea.sed. He lorlp:ed the first information report at the police station. After recording it, the junior Sub-Inspec· tor of police commenced investigation and after oompl(·tlng it submitted a charire·sheet against the three appellants on March 15, 1959. It is the prO!leoution case that the appellants are "vetrrnn criminals" and the chaukidars used to report R hout. their movements and that this was the motive for the murder. It was further said that th!' dt>()('a!led had ht>lped th11 Dalsingsarai police in arrestin~ one l\fotia l\fu~har, who was the plouirh man of the appellant Ramchandra, in a dacoity caae. All the appellants denied having participated in the incident. The defence is that a false o&Be has be~n concocted by the poliN>, The main evidence against the appellant is that of P.W. 2, Misri Paswan. He has actually named Ramchandra Chaudhary and J oitendra Chau dhary in the first information report. Regarding the third appellant, he stated that he was unknown. Ramchandra and Jogendra have been identified not only by llfisri PaswRn, but also by five other wit· ne83es, Narain Paswan, ""Rampratap Tanti, Srilal Chaudhary, Nathuni Chaudharv and Ramchander Jbl!,. All these five persons had an opportunity to see 'dalan' rt>called, appellants came near there and one of them cried out "Darogaji''. Their evidence has been accepted the appellants some of in the room when because, it may the adjacent them were • ·• -· lf62 Ba/11/Jwar Rai Tk1 Sta11 of Bihat '· Muiko/l<ar /, 2 S.C.R. SUPREME OOURT REPORTS 437 as true and adequate not only by the learned Sessions Judge who had an opportunit.y to see and hear the witnesses depose but also by the High Court. Their evidenoe oannot be reappraised in their appeals by special leave. The learned counsel, however, said that in so far as Jogendra Chaudhary is concerned, common intention to commit murder had not been establish ed. The existence of common intention has always to be inferred from facts. Here it has been ·estab· lished that all the three appellants ca.me together. Two of them, Ra.mohandra and Jogendra had guns, with them. The prosecution has established to the satisfaction of the learned Additional Sessions .Judge and the High Court that as Anandi Pa.swan was giving information to the police about the movements of the appellants and had also takeri the major part in getting one Motia J\lushar arrested in a dacoity case, Ramchandra nursed a grievance against Anandi. The therefore, must be that h11 had come with the intention of t3king . revenge on An'londi Pas wan by killing him and the other two appellants who accompanied him shared that intention. As the High Court has pointed out, this is made clearer by the Rtatement of Misri Pa.swan to the effect that Ramohandra said at the time of the incident that 'his (servant) Motfa' wa.8 taken 11.way forcibly and then Jogendra ilaked the deceased sarcastically, "Where. is your military today ?" therefore, there can he no doubt that common intention to commit murder was established not only with respect to J ogendra but also with res elect to Nepali Master who was all along with them. In the circumetance11, inference, On behalf of Nepali Master the learned coun sel contended that he has been identified at the test iientification parade by one witness only and that the other persons did not turn up for identification and, therefore, it is not legally permissible to base .. Ba/11Atoar Roi Tli< Stai of Bi/tar 438 SUPREME COURT REPORTS (1963) the identification by only one person. It is suffi cient to say that even the evidence of a single witness can sustain the conviotion of an ac<l118ed person if the court which saw and heard him depose re~ards him as a witneSB of truth. However, in this case, Nepali Master was identified not by one witne~s only but by two witnesses (P. W. 7) Srilal Choudhary and (P. W. 9) Dakhi Mahto. It wae said th-it Srilal is an old man of 75 and has a weak Pyesillht and therefore his evidence should be kept out of account. His evidenoo has been believed by the learned Seesions Judge as well as by the High Court and we ca '!not reaeseSB it. It was contended before the High Court and is also contended before us that as the teat identi fication was held long time after hie arrest, the evidence of these two witnessea could not be believ· ed. This circumstance was also considered by the High Court and it observed : "The oontention is attrautive; but, in view of Ex. 6, it is difficult to accept the same". ' Exhibit 6 is an Pnonymous letter written to Senior Sub-Inspector, Kaehi Nath (P. W. 22), of which the only portion whioh has been admitted in evidence r~ade thus: "The rascal Anandia Choukidar spoiled the life of t.hat poor Mushar by instigating the S. I. of Police of Dalaingeuai and eubse quentlv nothing" he also spied against us Thia dooument along with ex. 3, dated June 9, 1959, which is admittedly in tlie handwriting of Nepali Master, w•e sent to the Government hand writing expert. Both the documents were examined by him. In hie evidenoe he has stated. "The Board of Experts consisting of myaelf, Chatterjee and Srivastava examined ~-· 1962 Bal1•lnoar Rai v. Tiu Stas of Bi/1ar Mudholkar J. 2 s.c.R. SUPREME OOUR'i.' REPORTS 439 independently and our unanimous opinion was that Ex. 3, tallied with disputed writings (Ext. 6)." This being so, the admission oontained in Ext. 6 as to the motive is olearly admissible under s. 21 of the Evidenoe Aot. The High Court was, therefore, right in holding that Ext. 6 afforded oorroboration to the evidence of (P. W. 7) Srilal Chaudhary and (P. W. 9) Dukhi Mahto. It is then contended that Ex. 6 is hit bv s.162 of the Criminal Procedure Code because it was received by the Sub-Inspector during the course of the investigation. Section 16 ! of the Criminal Procedure Code only bars proof of statements made to an investigating officer during the course of investigation. Section 162 does not eay that every statement made during the period of investigation is barred from being proved in evidence. For a etatement t.o oome within the purview of s. 162, it must not merely be made during the period of investigation but also in the course of investigation. The two things, that is, "the period of investiga tion" and "course of investigation" are not synony mous. Section 162 is aimed at statements recorded investigating into an by a police officer while offence. This is clear from the opening words s. 162. They speak only of statements made to a police officer during the course of investigation. This implies that the statement sought to be exclud ed from evidence must be ascribable to the enquiry conducted by the investigating officer and not one which is de hors the enquiry. A communication like Ext. 6 will not fall within the ambit of such statements. In this view we hold that the docu ment in question is not hit by s. 162 of the Crimi nal Procedure Code and the High Court was right in admitting it in evidence. There is no substance in the appeals and they are, therefore, dismiesed. <"'· '