MER VAS DEVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) (Paras 1to 8 of the judgment contain facts of the case and discussion of evidence.)

(2.) Telephone message was received and he made entry No.7 in the police station diary of Porbandar Police Station and that entry is in these terms: Entry No.7, Ex.41, shows that driver Hamir rang up from phone No.99 that one man was assaulted by means of an axe at Sudama Chawk and the police should be sent immediately. There upon the person making the entry i.e., the police station officer handed over charge to head constable Moti Juma and head constable Abakadar immediately started for investigation. It is true that the police station diary does not mention the nature of the injury which was caused to the injured person near Sudama temple; but it did mention that injury had been caused by means of an axe and hence at least an offence under S. 324 of the Indian Penal Code was disclosed by this telephone message. As shown pausing here, it is important to note that in the instant case, F.I.R.Ex. 5 is not a statement giving information regarding the commission of a cognizable offence as contemplated by section 154, Criminal Procedure Code. It is well settled law that if the statement has been recorded by the police as contemplated by Section 154, Criminal Procedure Code that statement cannot be said to be recorded in the course of the investigation of the case, and therefore, would not be hit by the provisions of section 162, Criminal Procedure Code as such a statement is not a statement recorded in the course of investigation. Such statements recorded in accordance with the provisions of Section 154 are popularly referred to as first information reports. In the instant case what we find is that head constable Abrader received a telephone message at about 1.20 P.M. on February 13, 1961. This head constable was in charge of the police station at the time when the by Schedule II of the Criminal Procedure Code an offence punishable under S. 324 is a cognizable offence and the assailant concerned can be arrested without a warrant from the Magistrate. Under these circumstances, the telephone message sent by Hamir from phone No.99 was the first information report contemplated by Section 154, Criminal Procedure Code and all other things which transpired subsequently must have been done in the course of investigation.

(3.) P.S.I.Nanavati, P.W.No.22, Ex.46, has stated in his evidence that on the day of the incident he himself was on patrolling duty in the town. At about 1.25 P.M. he was near Khadi Bhandar and he saw a crowd of persons collected near Mama Kotha whereupon P.S.I Nanavati along with the police party went in that direction and he reached the scene of the offence and he saw s man lying on the ground having injuries on his had and feet and is delirious condition and he was unconscious. The P.S.I asked P.C.Ratigar who was present at the scene of the offence, to fetch a taxi or any other vehicle for removing the injured person to the hospital and in the meanwhile Hamir Vikram came there and made a statement which P.S.I.Nanavati subsequently recorded at the hospital. This P.S.I. had already visited the scene of offence. After the above statement was made to him by Hamir he had started asking questions at the scene of offence and had made arrangements for removing the injured person to the hospital. Under these circumstances, Ex.5 cannot be said to be a statement recorded otherwise than in the course of the investigation and in our opinion, that document was wrongly admitted on the record as the first information report.