T.N.R. Tirumalpad, J.C.
1. The appellant Anu Meah alias pichainna was convicted by the Sessions Judge in Criminal Session Trial No. 7 of 1960 under Section 302 I. P. C. and sentenced to imprisonment for life for the murder of one Abdul Majid. He has filed this appeal against the said conviction and sentence.
2. The case against the appellant rested mainly on the evidence of P. W. 3 Safia Khatun, wife of one Sarafat Ali stated to be an eye-witness to the occurrence. The occurrence is said to have taken place in the court-yard of the house of P. W. 3 in Jhaguriamura. P. W. 3 was living at the time with her husband and children in the house in the western Bhiti. She had two tenants Safia Khatun, wife of one Sundar Ali and her sister Rahela who was also a married woman but living away from her husband. They were living in the southern house in the eastern Bhiti. The two sisters were said to be women of loose morals and many men including the appellant, the deceased Abdul Majid, Abdul Jabbar, Han Meah and Mon Meah were said to have been visiting the said house for immoral purposes.
On the night of 26-6-1958 P. W. 3's husband Sarafat Ali was in the house of his niece about 100 cubits away. P. W. 3 was said to have seen the appellant in the earlier part of the night lying in bed with Rahela. Later at about 2 A. M., according to P. W. 3, while she was sleeping in her house with her children including P. W. 5, (her husband being away in the house of his niece about 100 cubits away) she heard a row taking place in front of the house of Rahela and her sister. She went out with a hurricane lantern (it being a dark night) and saw the appellant and Abdul Majid fighting. Rahela's sister Safia Khatun was trying to separate the two. Rahela went inside her house find brought a 'Batti Dao' and handed it over to the appellant and the appellant gave a cut with it on the neck of the deceased who immediately fell down in a pool of blood.
The appellant immediately ran away from the place. Rahela and her sister then shut themselves inside the house. P. W. 3 had raised an alarm on seeing the fighting and also on seeing Abdul Majid fall down and the appellant running away. She went to the deceased and took him on her lap and tried to stop the flow of blood With two Saris of hers and gave him water to drink and sprinkled water on his head. But immediately thereafter Abdul Majid died on, her lap.
3. It would appear that P. W. 7 Ananda Mohan Saha in the adjacent house to the east also heard the row taking place in the house of Sarafat Ali and he went and informed P. W. 6 Cham Meah who is said to be a Sirdar of the locality. This was at about 1-30 A. M. Cham Meah went to Sarafat Ali's house immediately and he is said to have found Abdul Majid lying dead in front of the eastern house on the southern Bhiti, his head being on the lap of P. W. 3. Charu Meah is said to have been informed by P. W. 3 that Abdul Majid died as a result of the piercing blow in the neck given by the appellant. The evidence of Charu Meah about what P. W. 3 told him immediately after the occurrence is said to corroborate the evidence of P. W. 3. Charu Meah was asked by P. W. 3 to inform P. W. 1 Jharu Meah, the father of the deceased who was living 15 houses away to the east.
Accordingly, Charu Meah went to Jharu Meah's house and roused him and informed him from outside the house that his son Abdul Majid had been given a piercing wound by the appellant in the house of Sarafat Ali. Jharu Meah is said to have asked Charu Meah to go away and stated that he would not go. Then this Sirdar Charu Meah is said to have coolly gone back to his house and taken no further interest in the matter. The evidence of this man Charu Meah has been strongly relied upon by the Sessions Judge as corroborative evidence in convicting the appellant.
4. It is worthy of note that Charu Meah even though he had seen the dead body of Abdul Majid did not inform P. W. 1 the father of the deceased about the death but is said to have only mentioned about the injury caused by the appellant. He did not tell Jharu Meah about the death even when the latter said he would not go. Jharu Meah on learning from Charu Meah about the occurrence was not interested in going to his son who he was informed was lying injured only a few houses away, His othei grown up sons and daughters were also in the house. He asked them all not to stir out of the house until he returned, as spoken to by P. W. 8 Abdul Gafur.
5. Jharu Meah went straight to the town Police Out-post, a quarter of a mile away and informed P. W. 13, the S. I. incharge that his son had been stabbed in the house of Sarafat Ali, but that he had not gone to the place of occurrence and had come straight to report. The duty of P. W. 13 on receiving such an information which was the first information to a Police Officer about this cognizable offence was to have recorded it as provided under Section 154 Cr. P. C. and got the signature of Jharu Meah and to have entered a summary in the General Diary. But none of these things were done by P. W. 13.
No explanation was also offered by P. W. 13 why he did not do so. It is, however, interesting that Jharu Meah even though he is said to have been informed of the name of the assailant by Cham Meah, did not tell P. W. 13 that it was the appellant who stabbed the deceased. This makes one feel that P. W. 6 and P. W. 1 were stretching their memory in saying that they knew of the appellant as the assailant at that time. P. W. 13 advised jharu Meah to go to the Kotwali Police station and after Jharu Meah. left for the Police station, P. W. 13 is said to have started with some constables to the place of occurrence.
6. On the way when he reached the Congress Office he met P. W. 3 coming in the opposite direction. P. W. 3 told P. W. 13 that Abdul Majid the deceased had rushed to her house from the road with severe injury. After giving the said news she went towards the east. It is pertinent to note that P. W. 3's subsequent evidence that she saw Abdul Majid and the appellant fighting in front of the eastern Bhiti house and saw the appellant giving the piercing injury with the 'Batti Dao' to Abdul Majid is totally contradicted by the information which she gave to P. W. 13. P. W. 13 proceeded further and went to P. W. 4, the Doctor and took him to the house of Sarafat Ali where the dead body was lying. On reaching the place P. W. 13 found the body of Abdul Majid lying in front of the western Bhiti house of P. W. 3 with the head in the lap of P. W. 3.
It would appear from this that P. W. 3 had returned before the arrival of P. W. 13 and had again taken the nead of the deceased on her lap. This particular conduct of P. W. 3 rather intrigued me. Abdul Majid was no relation of hers. He was already dead and P. W. 3 could do nothing further to him in the way of help, Under the circumstances, this rather strange solicitude of P. W. 3 in taking the head of the dead body on her lap appeared to be intended to show her concern for the deceased to those who arrived on the scene and probably to P. W. 13 himself who, she knew, was going to the place. One will not be far wrong in thinking that the attempt was to ward off any suspicion against her, as she was the person last seen with the deceased.
7. Now we shall proceed to see what P. W. 1 did further, P. W. 1 went to the Kotwali Police station which was about a mile away and he is said to have given the information to P. W. 15, the O/C incharge that his son was stabbed by the appellant in the house of Sarafat Ali. What one would expect P. W. 15 to do on receiving that information which, as far as he knew, was the first information of the cognizable offence to a Police Officer was to record it under Section 154 Cr. P. C. It is indeed curious that P. W. 15 did not also record it. No explanation was given by P. W. 15 in his evidence why he did not record It.
It is somewhat suspicious that both the Police Officers on receiving first information of this offence failed to record it as required under law. It is a matter for the Superior Officers to make an enquiry why these two Officers failed in their duty. The absence of the record of the first information given to the Police Officers is a matter which has seriously affected the prosecution case. It would have been a strong circumstance to be taken into account against the appellant if P. W. 15 had recorded this information.
8. P. W. 15 did not state in his evidence what exactly P. W. 1 told him at the Police station. In the absence of a record, what P. W. 1 stated' to P.W. 15 was, of course, no evidence of the first ^formation against' the appellant particularly if it implicated the appellant. But the learned Sections judge permitted the prosecution to prove this fact in a rather oblique manner, P. W. 15 is said to have recorded the information received by him in the General Diary Ext. P-9. From Ext. P-9 it is seen that P. W. 1 told P. W. 15 that Abdul Majid was stabbed by the appellant in the house of Sarafat Ali. The learned Sessions Judge has also placed strong reliance on Ext. P-9. It was certainly wrong on the part; of the Sessions Judge to have admitted Ext. P-9 in evidence against the appellant and more so to have relied on it.
The entry in the General Diary is to be the substance of the information of the cognizable offence which is given in writing or reduced to writing and signed by the person giving it. Where therefore the Police Officer has failed to reduce the information to writing and get the signature of the informant he had no business to enter it in the General Diary. If he has so entered in the Diary it is not in accordance with the provisions of Section 154 Cr. P. C. and such an entry cannot be introduced in evidence against the accused and cannot be relied upon by the Court.
The Legislature has deliberately provided so in Section 154 Cr. P. C. for the reason that the General Diary of the Police station is something which can be manipulated by the Police, Unless therefore the signed statement of the informant was there, the entry in the Diary is absolutely useless and will not be any manner of proof either that any such information was given or that the accused has been in any way implicated in such information. I shall therefore totally exclude the entry Ext. P-9 from evidence in considering the case against the appellant.
9. P. W. 15 immediately thereafter reached the place of occurrence along with P. W. 1. At the place of occurrence at 2-35 P. M. he is said to have recorded the first information Ext, P-10 from P. W. 1. From the evidence of P. W. 13, P. W. 1 and P. W. 15 it is clear that Ext. P-10 was not the first information at all. Already P. W. 13 had been given the first information by P. W. 1 which did not state the appellant to be the assailant. P. W., 13 had received a second information from P.W. 3 on his way to the place of occurrence and that information was totally opposed to the case now set up by P. W. 3 and the prosecution. I have already referred to it. Then the third information was given by P. W. 1 to P. W. 15 which was not recorded.
Thus actually Ext. P-10 is the fourth information to a Police Officer of this occurrence. I am unable to understand how the learned Sessions Judge treated it as the first information. The fact that the name of the appellant is mentioned as the assailant in Ex, P-10 should not be treated as a circumstance against the appellant. Ext. P-10 should have been altogether excluded from the evidence. This case has to be treated as if the Police Officers to whom the first information was given have either deliberately or through lack of experience failed to record it.
10. Putting all tilings together, I cannot but come to the conclusion that there has been some attempt at manipulation of the so-called F. I. R. Ext. P-10. I have no doubt that neither of the Police Officers P. W. 13 or P. W. 15 had any information until their arrival at the place of occurrence that the appellant was in any way connected with the death of Abdul Majid, We have it from the evidence of P. W. 13 that he learnt about the appellant being the murderer from one Siddique who occupied the house to the west of P. W. 3's house and that was when he was returning from the Congress Office after sending a telephone message to the Kotwali Police station. As for P. W. 15, he, no doubt, said that he came to know of the appellant's part in the murder from P. W. 1.
11. Immediately after recording the F. I. R., P. W. 15 is said to have gone to the house of the appellant at 2-55 A.M. He said that P. W. 13 also came with him. But P. W. 13 did not support it. At the house of the appellant he was called 3 or 4 times and he came out. It was stated by P. W. 2 Osman All and P. W. 8, the elder brother of the deceased both of whom had accompanied P. W. 15 that the appellant was perspiring profusely and was in an agitated state when he came out. But neither P. W. 15, the I.O. nor P. W. 10 Khagendra Nath Chakravorty, a Journalist who had also accompanied the party stated that the appellant was perspiring. P. W. 15 said that the face, arm and chest of the appellant was found to be wet.
This was said to be not from perspiration but from an alleged cleaning with water. It was said that the courtyard of the appellant was wet as if some washing had taken place. But there was evidence in the case that in the earlier part of that night it had rained and so the wetness of the court yard cannot be taken as a circumstance against the appellant. Again, even if the appellant was perspiring and was in an agitated mood, one need not be surprised as even innocent persons are likely to be agitated when Police Officers visit them at the unearthly hour of 2-55 A.M.
12. One underwear which was wet was said to have been seized from the appellant's house containing blood-stains. A blood-stained lungi was also seized from the person of the appellant. P. W. 2 Osman Ali even went further and said that they noticed blood oozing out of the left thigh of the appellant. He was, of course, not supported by any other witness. Nor was the appellant got examined by any doctor regarding any wound on his thigh. It is somewhat curious that the Police made no immediate attempt to have the underwear and the lungi sent to the Chemical Examiner to test them for human blood. The lungi was never sent at all.
No explanation was offered why it was not sent. The wet underwear was sent to the Chemical Examiner on 19-2-1949 nearly 8 months after the occurrence. The Chemical Examiner's report was that the stains had disintegrated and he cannot say the origin of the blood. Thus the evidence of P. Ws. 2, 8, 10 and 15 regarding the alleged bloodstains on the lunei and the underwear cannot be taken as a circumstance against the appellant,
13. Whatever miaht have been the information which P. W. 15 received against the appellant, P. W. 15 was not satisfied that the appellant alone was responsible' for the murder. He, no doubt, arrested the appellant. From there !he went to the house of one Abdul Jabbar who was also said to have been visiting the woman Rahela and arrested him. Next he arrested Sarafat Ali, the husband of P. W. 3 from his niece's house.
Then he returned at about 4-25 A.M. to the-scene of occurrence and he seized a tin from the cowshed of Sarafat Ali containing two Saris belonging to P. W. 3 which was full of human blood. These Saris were not sent to the Chemical Examiner to test for human blood. The fact that they contained the blood of the deceased was however admitted by P. W. 3 in her evidence as she said that she used the Saris to stop the flow of blood from the injury. What, however, one cannot understand and what looks somewhat suspicious is that before the arrival of the Police P. W. 3 should have hidden the Saris in a tin in the cowshed which it will be seen from the sketch was a separate place in the eastern Bhiti near the house of Rahela and her sister.
14. We learn from the evidence of the I. O. P. W. 15 that P. W. 3 who later became the main witness in the case - in fact the only witness - refused to make any statement to him on his return, to the scene of occurrence after arresting the appellant, Abdul Jabbar and her husband, with the result' that P. W. 3 was herself put under arrest. It is clear from this evidence that until her arrest P. W. 3 was not prepared to tell P. W. 15 how the occur-rence took place, which would even show that she-had a guilty conscience particularly in the face of her attempt to hide the blood-stained Saris in the cowshed and in the face of her statement a little earlier to P. W. 13 that Abdul Majid had run into her compound from the road with a severe injury. After her arrest she seems to have given a statement to P. W. 15.
That statement is utterly valueless as it was made while she was in Police custody and because it was evidently made when she got frightened after her arrest by the Police. Even if she has accused the appellant in that statement, we can treat such statement as an after-thought and as an attempt to exculpate herself. Anyway P. W. 15 did not act on that statement and kept P. W. 3 under' arrest. He also arrested Rahela and her sister Safia-Khatun, who refused to make statements. Two days later on 29-6-1958 he arrested Manu Meah and Mon Meah. two other frequenters of Rahela. Thus in addition to the appellant, P. W. 15 had arrested 7 other persons suspected of the offence including P. W. 3 bacause he was not prepared to accept the statement of P. W. 3 accusing the appellant. All the 8 were kept under jail custody pending investigation.
15. I find from the order-sheet of the Magistrate before whom these 8 persons were produced that the Magistrate was pressing the Police at every stage to complete the investigation or at least to let the Court know the evidence collected against the persons till then. But the Police were not making any headway in their investigation and they were turing deaf ear to the requests of the Magistrate for the Police Diaries. Finally the Magistrate released Mon Mon on bail on 26-8-1958 and later Mam Meah, Abdul Jabbar and, Sarafat Ali were pleasee on 6-10-1958. on bail though bail was strongly opposed.
On 28-11-1958 the Police requested the Magistrate to examine P. W. 3 under Section 164 Cr. P. C. and her statement was recorded by a Magistrate on 29-11-1958. It is from that statement that the .present case of the prosecution against the appellant was set up for the first time. Thus it was 5 months after the occurrence that the Police managed to get some kind of evidence against the appellant and that too from P. W. 3 who was herself suspected by the Police of being implicated in the murder. After the statement was recorded P. W. 3 was discharged at the request of the Police on 3-12-1958.
16. Still the other women Rahela and her sister Safia Khatun were allowed to languish in jail even though no evidence of any kind had been collected by the Police against them. The Police investigation continued further until 2-9-1959. I have perused the Police Diary in the case. I am unable to find that any serious investigation was at all mads into the case between the date of occurrence and 2-9-1959 i.e. more than 1 year and 2 months.
The evidence of P. W. 15 showed that during this period of 1 year and 2 months 8 persons were questioned. Such dilatoriness on the part of the Police has to be severely condemned. It is in utter disregard of the provisions of sections 167 and 173 Cr. P. C. which require that investigation should be completed without unnecessary delay. The 8 persons who were questioned could have been examined within a few days of the occurrence. P. W. 15 ought to have decided whether he was going to rely on the statement of P. W. 3 as he had already examined her on 27-6-1958 itself. It shows total neglect of duty and a lack of consciousness of the rights of citizens on the part of P. W. 15 to have allowed 7 persons to rot in jail for months, when not a scrap of evidence was collected against any one of them in the course of investigation.
17. I should say that there is a duty cast on the Magistrate under Section 167 Cr. P. C. to satisfy himself whether there was any evidence collected against accused persons before he ordered their remand to custody continuously for months and months. There has been failure of duty on the part of the Magistrate also in this matter. I find from the order-sheet that the Magistrate was asking the Police every time to produce the Police Diary but without any kind of response from the Police. But in spite of it, the Magistrate went on remanding the 8 persons to jail custody every fourteen days without satisfying himself whether the continued remand was warranted by the evidence collected in the investigation.
If the Police will not produce their Diary to justify further remand, the Magistrate would be exceeding his authority in ordering further remand. The remands in this case have been done in a mere mechanical fashion showing a lack of awareness that a citizen should not be deprived of his liberty except for justifiable reasons.
18. Regarding the two women Rahela and her sister in particular, they were forced to continue in Jail from 27-6-1958 till 1-11-1959 for a year and 4 months even though there was not a tittle of evidence against them. We find that the charge-sheet is dated 2-9-1959 and in the charge-sheet the Police requested that all the persons except the appellant may be discharged. It surprises me that this charce-sheet dated 2-9-1958 which is the final report under Section 173 Cr. P. C. was received by the Court only on 16-11-1959. I am inclined to suspect that this charge-sheet has been deliberately antedated in order to cover up the delay. The order-sheet of the Magistrate shows that the matter was posted for hearing on 4-9-1959 on which date no charge-sheet was submitted.
The Magistrate has made a remark about it on that date. Why was the Magistrate not informed about the filing of the charge-sheet on 4-9-1959? Why was he not requested to discharge Rahela and Safia Khatun from custody on that date? Again the case was posted to 18-9-1959, 2-10-1959, 16-10-1959 and 30-10-1959. On all those dates, the Magistrate has stated in the order-sheet that the report under Section 173 Cr. P. C. was not forthcoming. On 30-10-1959 he stated in the order-sheet that it was high time for the I. O. to complete the investigation and submit the report and that the attention of the S.P. Tripura should be drawn in this respect.
It was only after this that on 1-11-1959 it was reported to the Court that the charge-sheet had been submitted against the appellant alone and that the other accused might be discharged. Even then, the charge-sheet was not received by the Court until 16-11-1959 during which time 2 further hearings had taken place. It leaves no doubt in ones mind that the date on the charge-sheet was false and that it was not submitted on 2-9-1959. The report under Section 173 Cr. P. C. has to be forwarded either direct to the Magistrate empowered to take cognisance of the case on a Police report or where a Superior Officer of Police has been appointed under Section 158 Cr. P. C. through the said Officer. But the charge-sheet itself does not show that it has been submitted through any Superior Officer of Police or that it was received in the S. D. M's Court on 16-11-1959 through any such officer. It is necessary that there should be an enquiry into this matter as to why a charge-sheet dated 2-9-1959 submitted by the O/C Kotwali Police station in Agartala should have taken more than 21/2 months to reach the S. D. M's Court in Agartala.
19. The Police seem to have an utter disregard for the liberty of the citizen which is guaranteed under- the Constitution. They have caused Rahela and her sister to be unnecessarily detained in jail for a period of 1 year and 4 months without any evidence against them. At least, it was the duty of the Police to have reported to Court on 4-9-1959 to which date this case was posted and to have got Rahela and her sister discharged from custody.
The attention of the S.P. Tripura is drawn to this extremely deplorable state of affairs. It is nothing short of crime to keep people in Jail unnecessarily and the sooner the Police of this territory learn this and learn the rights of the citizens under the Indian Constitution, the better it will be for all concerned. A copy of this judgment will be sent to the S. P. for such action as he wants to take against the Police Officers responsible for this,
20. In paragraphs 16 to 19 I have dealt with matters which are strictly not relevant for the purpose of this appeal. But as the highest Court incharge of the administration of justice of this territory I felt it my duty to point out the irregularities committed by the Police by which the lives and liberties of citizens are affected.
21-32. (After discussion of evidence his Lordship proceeded): No case has been made out against the appellant and the learned Sessions Judge was utterly in error in convicting and sentencing him. I am only sorry that the appellant had to remain in jail for a period of 2 years on this trumpery charge.
33. The appeal is allowed and the conviction and sentence of the appellant are set aside and he is directed to be set at liberty forthwith.