IMPORTANT POINT
FIR, Defective investigation; acquittal of co-accused - effect.

Judgment :-

Madan B. Lokur, J.

1. The principal issues before us are whether a cryptic telephonic intimation given to the police can be described as a First Information Report for the purposes of Section 154 of the Criminal Procedure; whether the testimony of PW-7 Sanatan Sarkar and PW-8 Achintya Sarkar can be accepted for upholding the conviction of Surajit Sarkar (the appellant); whether Surajit Sarkar can be convicted of murder even though his co-accused have been acquitted and finally whether Surajit Sarkar did commit the murder of Gour Chandra Sarkar.

2. In our view, the first issue must be answered in the negative. We also hold that the testimony of PW-7 Sanatan Sarkar cannot be accepted, but we do accept the testimony of PW-8 Achintya Sarkar. We find no reason to hold that merely because those accused with Surajit Sarkar have been acquitted, he too must be acquitted of the charge against him. However, we find, on the testimony of PW-8 Achintya Sarkar, that Surajit Sarkar is liable to be punished not for the murder of Gour Chandra Sarkar but for culpable homicide not amounting to murder punishable under Section 304 of the Indian Penal Code.

The facts:

3. On 21st March 1995, Susanta Sarkar’s father Gour Chandra Sarkar had gone on his cycle to the Gobindapur bazaar in the evening. At about 9.00 pm while he (Susanta Sarkar) was in his house, he heard a cry from his mother. On inquiring from her, he learnt that Bishnu Sarkar informed her that Gour Chandra Sarkar had been murdered at about 8/8.30 pm apparently in front of Bimal Poddar’s house.

4. Susanta Sarkar immediately rushed to the spot and found his father lying senseless on the ground with bloody injuries. On raising a noise, some villagers gathered there and advised him to lodge a complaint. Thereafter, he went to his uncle’s house (Bishnu Sarkar’s father) and wrote out a complaint.

5. Later, he came to know at about 10/10.30 pm that the police had reached the place of occurrence. Thereupon, he too went to the place of occurrence and met the police. In his presence, the police seized some items, including his father’s wrist watch and cycle. After the seizure proceedings were over at about 11.55 pm he handed over to the police his complaint addressed to the officer-in-charge Police Station Santipur, District Nadia.

6. In his complaint, Susanta Sarkar stated the broad facts mentioned above, namely, that his father had gone to the Gobindapur bazaar in the evening; that he came to know his father had been murdered at about 8.30/9.00 pm in front of Bimal Poddar’s house; that he went to the place of occurrence and found his father lying on the road with a bleeding injury.

7. He also stated in his complaint that there was a dispute between the members of his family and that of Gour Sarkar and some people engaged by him. On 8th March 1995 there was a scuffle between the two parties and a case was pending in that regard. His brother Nimai Sarkar was in jail as a result of that incident. Gour Sarkar’s party had also been in jail but had been released a day or two earlier. Susanta Sarkar stated in his complaint that he firmly believed that six members of Gour Sarkar’s party murdered his father Gour Chandra Sarkar due to the grudge that they bore.

8. Based on the complaint given by Susanta Sarkar, a First Information Report (FIR) was registered in Police Station Santipur, District Nadia on 22nd March 1995 at about 00.45 am and formal investigations commenced into offences punishable under Section 302 read with Section 34 and Section 120-B of the Indian Penal Code (for short the IPC) against the six accused persons. On conclusion of the investigations, a charge sheet was filed against them. Charges were framed against the accused persons but they pleaded not guilty and claimed trial.

9. Although the prosecution produced fourteen witnesses, we are concerned with the evidence of only some of them.

10. PW-1 Susanta Sarkar confirmed what he had stated in his complaint. He added