STATE OF ASSAM Vs. MUHIM BARKATAKI

JUDGEMENT

(1.) This appeal by special leave is against the judgment and order passed in Criminal Appeal No. 66 of 1983 by the High Court of Gauhati acquitting both the accused respondents from the charges under Sec. 302 read with Sec. 34 I.P.C. as well as under Sec. 436 read with Sec. 34 of Indian Penal Code, 1860.

(2.) The prosecution case in short is that on 2nd November, 1978 at about 7 p.m. two accused respondents Muhim Chandra Barkataki and Dulu Dutta came together to the shop of Nagen Dey since deceased and sprinkled and poured kerosene oil in the shop as well as on the person of Nagen Dey and then set fire. Immediately fire caught and spread over the shop as well on the body of Nagen Dey. The shop was a Guliamal (grocery) shop where rice, Dahl, soap, mustered oil, kerosene oil, etc., goods were sold and situate at Na-Ali Road of Jorhat Town in front of M/s. Baruah Printers. Nagen Dey came out of the shop house with ablazing condition all over his body. The witnesses Arun Barua, Prabin Barua and Kiron Saikia on seeing the fire rushed to the place of occurrence and put off the fire from the body of the Nagen Dey but Nagen Dey suffered extensive burnt injuries all over his body. Pradip Jyoti Sarma, Assistant Sub-Inspector of Police also came to the place of occurrence a few minutes later and he also witnessed the fire on the person of Nagen Dey as well as in the shop of Nagen Dey. Prosecution case is, further, that Nagen Dey made a dying declaration before the witnesses stating that the two accused persons namely Muhim Barkataki and Dulu Dutta set fire on his body after pouring kerosene oil. It was also the prosecution case that both the accused were found at the place of occurrence and public caught hold of the accused Muhim Barkataki red handed at the shop of occurrence whereas other accused Dulu Dutta fled away. Injured Nagen Dey was immediately removed to Jorhat Civil Hospital for treatment, but he died at the hospital. Accused Muhim Barkataki was handed over to the Police by the witness Pradip Jyoti Sarma, Assistant Sub-Inspector of Police. The information of the incident was received over telephone message at 7.15 p.m. by the Officer-in charge of Jorhat Police Station who recorded an entry in the General Diary being G.D. Entry No. 47 dated 2-11-1978 at 7.15 p.m. The Town Sub-Inspector Sri P. Khatoniar was immediately deputed to make local investigation on the spot. Sri P. Khatoniar made enquiry and investigation locally at the spot, arrested accused Muhim Barkataki at the spot and returned to police station. He then informed the. facts of occurrence to the Officer-incharge of the Police Station who recorded the same under G.D. Entry No. 50 at 8.10 p.m. On 3rd November, 1978 at about 7 a.m one Sri Montu Ch. Dey, nephew of deceased Nagen Dey lodged Ejahar (Ext. 5) with Jorhat Police Station. Thereafter murder and arson cases have been registered against Muhim Barkataki and Dulu Dutta. Investigation was carried on by Shri Prafulla Kumar Khatoniar. The Investigation Officer forwarded witnesses Arun Barua, and Kiran Saikia to the court for recording their statements under Sec. 164 of the Criminal Procedure Code. The Judicial Magistrate Shri Dharyya Saikia recorded the statements of these two witnesses on 7-11-1978.

(3.) The Sessions Judge found that the message received over telephone was an information relating to commission of cognizable offence and same was entered into General Diary of the Police Station as Entry No. 47. On the basis of this information the investigation of the case was entrusted to the Town Sub-Inspector Shri Prafulla Kumar Khatoniar with the recording of General Diary Entry No. 47 and the Investigating Officer fairly progressed with the investigation in that very night. Subsequent information of Montu Chandra Dey on 3rd November, 1978 are nothing but statements during the course of investigation and as such those are hit by Sec. 162 of the Criminal Procedure Code. It has, therefore, been held that Exhibit 5 cannot be recognize as the First Information Report of the occurrence. The General Diary Entry No. 47 which is proved as Ext. 7(l), is the First Information Report of the occurrence.