MULU LAXMAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) 18 In the instant case Alubha Bawaji has been treated as the first informant and his first information report has been brought on the record as ex. 8. In the instant case we find that Ex. 8 is not the first information report contemplated by sec. 154 of the Code of Criminal Procedure P. S. I. Patil P. W. 30 Ex. 84 has clearly stated in his evidence that at about 2 A. M. on October 9 1962 he received information from a Police Constable in connection with this case. He was informed that Ratubha and others of Khakharabela who had received injuries had been brought to the dispensary and that their condition was serious. P. S. I. Patil then sent a Yadi to the Taluka Magistrate for recording their dying declarations. After sending the Yadi P. S. I. Patil left his quarters at about 2-10 A. M. and went to the dispensary. There he received information that Ratubha had already expired and he ascertained for himself by going to the cart of Ratubha that Ratubha was dead. In the meanwhile the Taluka Magistrate arrived and went inside the dispensary. P. S. I. Patil remained outside and arranged for Police-bandobast over the dead-body of Ratubha. The public carrier with Narubha and Balubha arrived within about 15 minutes thereafter and P. S. I. Patil requested the Taluka Magistrate to record the dying declaration of Narubha also. At about 2-30 or 2-35 A. M. the Medical Officer of Paddhari dispensary left for Rajkot in the public carrier to go with Narubha Sidubha and Devubha. P. S. I. Patil then sent the cart containing the dead body of Ratubha to the post-mortem room and thereafter he recorded Ex. 8 and this was done at about 2-30 A. M. at Paddhari dispensary. The inquest panchnama regarding the dead body of Ratubha appears to have been recorded at about 7-15 A. M. the next morning. But it is clear that P. S. I. Patil had received information in connection with the commission of a cognizable offence at his quarters. Thereafter he proceeded to the dispensary had seen the dead body of Ratubha for himself and had also requested the Taluka Magistrate to record the dying declaration of Narubha. Under these circumstances P. S. I. Patil had taken steps in the investigation of the case prior to the recording of Ex. 8 and hence Ex. 8 cannot be said to be the first information report as contemplated by sec. 154 Cr. P. C. 19 We have come across many cases where we find that the trial Courts have not paid sufficient attention to the question whether the so-called first information report in a particular case is or is not the report contemplated by sec. 154 Cr. P. C. It is obvious that if investigation has already commenced by the time the so-called first information report comes to be recorded then the statement even though referred to by the police authorities as the first information report is nothing more than a statement recorded in the course of the investigation and would be governed by the provisions of sec. 162 Cr. P. C. In such a case it cannot be used for the purpose of corroborating the maker of that statement. It is true that in many cases it is only when the Police Officer who has recorded the statement is examined in the course of the trial that it becomes obvious whether the investigation he commenced or not at the time when the statement of the so-called first informant was recorded. It is therefore desirable that unless it becomes apparent from the facts of the prosecution case that the so-called first informant had initiated the investigation the so-called first information report should not be marked as an exhibit on the record of the case but should be marked for identification and it should be taken on the record as an exhibit only if from the evidence of the Investigating officer it becomes clear that the so-called first information report was in fact the report contemplated by sec 154 Cr. P. C. By adopting this procedure that we are indicating in this Judgment no prejudice is likely to be caused either to the accused or to the prosecution. In the case of State v. Hiralal V.G.L.R. 255 it has been pointed out that even if there is a first information report recorded under the provisions of sec. 154 Cr. P. C. recorded by an officer in charge of a Police Station it is not substantive evidence but is a previous statement in writing of the maker of that statement and can be used to corroborate or contradict the maker of that first information report. It has further been pointed out in that judgment that by reason of the provisions of sec. 145 of the Indian Evidence Act if any part of the first information report is to be used for the purpose of contradicting the maker of that statement recorded as the first information report the attention of the maker must before the writing can be proved be called to those parts of the statement which are to be used for the purpose of contradicting him and in that judgment it has been pointed out that this provision for confronting the witness with those parts of his earlier statements by which it is proposed to contradict him is a fair and proper provision and is in accord with the sense of fair play to which Courts are accustomed. In the light of this judgment in State v. Hiralal V. G. L. R. 255 (supra) it makes no difference so far as the defence is concerned whether the first information report is taken on the record as an exhibit immediately when the maker of it is examined as a witness or is brought on the record as an exhibit at the time when the Investigating Officer is examined. In either case the defence counsel must confront the maker of the statement with those portions of it by which it is proposed to contradict him. In the instant case as pointed out above Ex. 8 is not the report contemplated by sec. 154 Cr. P. C. and in our opinion was wrongly admitted on the record as a first information report.