R.K. Das, J.
1. This is a complainant's appeal against an order of acquittal passed by a Magistrate, 1st Class, Cuttack.
2. Daitari Das and Apart Das are cousins being residents of Kokolapur. Accused Abdul Hamid also belongs to the same village. The other three accused Kulamani, Birabhadra and Bansidhar come from the adjoining village Kanapur. It is the prosecution case that on 19-4-1958 at about 2-30 A.M. the accused persons attempted to commit robbery in the house of Aparti (P. W, 6). On the following morning Daitari lodged information (Ext. A) at Jagatsingpur Police Station in which he named only Abdul Hamid as one of the accused stating that 'some others' also participated in the occurrence. After investigation the Police submitted final report on 10-9-1958 stating that the case was 'intentionally false'. Thereafter the complainant filed a regular complaint on 10-1-59 against the four accused persons on the very same allegations and the accused persons were summoned to stand their trial. Accused Kulamani, Banshidhar and Birabhadra were charged under Section 393 whereas accused Abdul was charged under Section 393/109 I. P. C.
3. The plea of the accused persons was of a denial. They contended that on account of enmity and party factions this false easel has been foisted upon them.
4. The learned Magistrate who tried the case acquitted the accused persons mainly on the following grounds:
(i) In the F. I. R. the name of accused Abdul Hamid was also mentioned, and the names of the other three accused were for the first time mentioned in the Court.
(ii) There was no explanation for the belated filing of the complaint several months after the filing of the final report.
(iii) At the stage of investigation, the witnesses did not put forward the story as told at the trial; and
(iv) That the enmity between Aparti Das and accused Hamid being admitted, it is unsafe to accept the version of the complainant.
It is against this order of acquittal the complainant has filed the present appeal.
5. P. Ws. 1 and 6 are cousins. P.W. 8 is the son of P. W. 6. It is the case of P. W. 1 that while he was sleeping on the verandah in front of his door, he heard the sound of a gun-fire in the house of his brother Aparti Charan Das. On hearing the sound he went to the house of Aparti, which is intervened by a small passage, with a torch light, and found his door opened and there was smell of gun-powder. He asked Aparti from the window side and was told by the latter that some thieves had entered his house. He then cried aloud when P. W. 3 Govinda, P. W. 4 Bharmar, P. W. 2 Purna Chandra and P. W. 5 Khetramohan Naik and some others came to the spot and then all went towards the canal embankment. Near a heap of straw in the Bari of P. W. 1, they found accused Hamid standing with a gun, in hand. He had a striped Lungi and a black shirt. Hamid fired his gun at those people, but missed. The witnesses then proceeded to the eastern side and noticed the other three accused escaping from the house of P. W. 6. Of the accused persons, Kulamani had a knife, Bira a crow-bar and Banshi a torch. Going inside the house of P. W. 6, they found his servants Uchha Kandi and Bhubani Naik had been tied down by the culprits. They untied the servants. They also noticed some marks of violence on the door-leaves of some of the rooms of P. W. 6 and found some fire-crackers in the Court-yard.
It appears from the F. I. R., that not a word was stated about the other three accused persons, viz. Kulamani, Banshi and Birabhadra. It was clearly stated therein that it was accused Hamid and two or three of his friends who were responsible for the offence. While confronted with this position P. W. 1 simply asserted that he had stated the names of the other three accused persons, but as the F. I. R. was not read over to him by the A. S. I., he was not sure of the position. This however is difficult to accept. Ext. A was signed by the witness himself. It further appears from his evidence that he knew these three accused persons previously and in fact his case at the trial was that he had seen each of these three accused persons holding something in hand. If that was so, it is not understood why P. W. 1 did not mention about these names in the F. I. R. itself, when it was lodged on the morning following the night of occurrence. It appears from the evidence of P. W. 6, a cousin of P. W. 1, that on the night of the occurrence he heard some sound of gun-shot and when he wanted to come outside to know what had happened, he found his door to have been chained from outside.
Immediately after P. W. 1 called him by the side of his window and enquired as to what had happened. He reported to him that some thieves had entered into his court-yard. Daitari then called others and some people gathered at the spot and there he told them that he heard the voice of Kulamani, Banshi and Birabhadra in his courtyard giving direction to tie down his servants Govinda Khatua. It is also his evidence that P. Ws. 1, 2, 3, 4, and 5 also told him that they saw Kulamani, Bira and Banshi going out of his house and Hamid standing on the canal embankment. He also found his servants Govinda and Uchhaba were tied down by the culprits, in the courtyard of his house and some unused crackers and used bullets like brass talisman were also lying. He also noticed some marks of violence caused to the house. It is further clear from the evidence of P. W. 6 that it was Daitari and other witnesses who were aware of the presence of the accused Kulamani, Banshi and Bipra at the place of occurrence and some one of them like Bira giving directions to tie up his servant Govinda.
But in spite of all these, it is somewhat surprising that the names of these three accused persons did not find place in the F. I. R. This witness admitted that he himself did not see accused Banshi, Bira or Kulamani either at the spot or anywhere else on that night His evidence appears to show that he could recognise them from their voice. He claimed to have stated this fact to the I. O. in course of investigation. The occurrence is alleged to have taken place in the house of P. W. 6, but it is somewhat strange that he did not lodge the F. I. R. or figured as a complainant which was filed by P. W. 1 on both the occasions. He was not even interested in the result of the investigation made by the police. He candidly admitted in cross-examination that he did not ascertain from the police about the result of the F. I. R. lodged by P. W. 1 on his behalf. P. W. 8 is the adopted son of P. W. 6. He is a student and was sleeping inside the room at the time off occurrence. According to him, he and the other inmates of the house woke up when the occurrence took place. He asserted that he saw Bipra, Banshi and Kulamani threatening their servant Uchhab and tied him with his wearing cloth, and when he protested Kulamani, Bira threatened him with assault with knife and crowbar respectively. Bira also tied Govinda with his wearing cloth. He was similarly threatened by Kula and Bira.
Thus the evidence shows that all the inmates of the house were aware of the presence of these three accused persons, but all the same nothing was mentioned in the F. I. R. about the parts played by each of them. It may be mentioned here that Uchhab and Govinda the servants of the house have not been examined in this case. The explanation of P. W. 6 was that they were no longer servants in his house. It appears from the evidence of P. W. 6 that he knew the whereabouts of Govinda who was working at Chandbali and according to him Uchhab had been gained over. It is thus clear that the prosecution made no efforts to procure them as witnesses before the Court though undoubtedly they were the most competent witnesses as they must have seen the accused persons at a short range. One Purna Chandra Panda, a tutor was sleeping in the house of P. W. 6 at the time of occurrence and as such was a competent witness to speak about the presence of the accused persons. But he has also not been examined. The defence rightly made some comments for the non-examination of the material witnesses who are said to be present in the house of P. W. 6 at the time of occurrence.
6. P. Ws. 2, 4 and 5 have been examined as three other eye-witnesses to the occurrence. It may be mentioned that the names of P. Ws. 2 and 4 did not find mention in the petition of complaint. P. W. 2 admitted that he has some sort of relationship with P. W. 1 and he calls the wife of P. W 1 as aunt. The evidence of these three witnesses is more or less on the same line as that of P. Ws. 1 and 6. The statements of these witnesses were challenged mainly on the ground that in their earlier statements before the Police they did not involve these accused persons and in any case they were grossly contradictory. The learned Magistrate came to the finding:
'The evidence of the witnesses in the Court barring some minor discrepancies appears to be making out a case against the accused.'
But he refused to accept the prosecution story for the grounds stated above. I agree with the learned Magistrate that barring some minor discrepancies, a prima facie case appears to have been made out against the accused persons. The Police Officer who went to the spot found marks of violence on different parts of the house committed with weapons such as crow-bars and axe. I further agree that the order of acquittal shall be maintained, I want, however, to point out that the learned Magistrate made an erroneous approach to the case in admitting certain documents, such as Ext. C and in drawing certain inferences from the final report submitted by the Police.
7. To shake the credit of the prosecution witnesses, reliance was placed by the defence on the statement made by the witnesses before the Police. No doubt, those earlier statements, if duly proved, may be used for the purpose of contradicting the prosecution witnesses in the manner provided under Section 145 of the Evidence Act. It appears from the evidence that P. Ws. 1 to 6 and 8 were examined before the police and the attention of these witnesses was also drawn to their earlier statement with a view to make out the contradictions.
Thus, if the earlier statements of these witnesses were correctly recorded, it cannot be doubted that these prosecution witnesses were sufficiently contradicted by those statements. In a case like this, where the police refused to submit charge-sheet against the accused persons after investigation, and the accused were summoned to a trial on a private complaint, the provision of Section 162, Cr. P. C. still applies and the accused can get copies of the statements of the prosecution witnesses with a view to contradict them at the trial (Vide: 28 Cri LJ 14: (AIR 1927 Nag 24), Hari Mahadeo Gore v. Emperor). Under Section 162, Criminal Procedure Code, however, such statements as are made by a witness before the police in course of investigation cannot be straightaway admitted in evidence, but it must be duly proved that the alleged earlier contradictory statement was m fact made before the police officer. In the present case, the Investigating Officer who recorded the statements of the witnesses has been examined as D. W. 1. He has not been called upon to depose whether the particular statements with which the witnesses were confronted were in fact stated before him and he duly recorded the same. But instead the learned Magistrate adopted an unusual procedure in marking the entire case-diary as Ext. C. What exactly were the contents of Ext. C and whether the witnesses m fact made any such statements as were shown to them at the trial have not been proved by the I. O. and the procedure followed by the learned Magistrate is not in conformity with the law.
In a decision of the Bombay High Court reported in 26 Cri LJ 223 : (AIR 1924 Bom 510), Vithu Balu v. Emperor, their Lordships held that the words: 'if duly proved' in Section 162, Criminal Procedure Code show that the record of the statement cannot be admitted in evidence straightaway, but that the officer before whom the statement was made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness. In a decision of the Lahore High Court, Labh Singh v. Emperor, reported in 26 Cri LJ 1153 : (AIR 1925 Lah 337), it was held that there is no presumption as to the genuineness of statement of witnesses entered in the police diaries and unless the statements are duly proved the evidence given in court cannot be contradicted by them. In that case, their Lordships further observed that the statement of the Sub-inspector as to what the witness told him during the course of investigation is inadmissible in evidence under Section 162(1) of the Cr. P. C., and although the S. I. has deposed to having recorded the statement of various witnesses, he has not said that the statements of which copies have been placed on record are those which he recorded.
8. In a case reported in AIR 1958 Bom 225, Sayyed Husan v. State, their Lordships held that the correct way and the proper way of proving a contradiction or omission is to ask the S. I. about it in his evidence as to whether a certain statement was made before him by a witness. If such a procedure is not adopted, it cannot be said that there was proof that in fact the statement concerned was not made by the witness. As stated before, in this case the previous statements alleged to have been made by the witnesses have not been proved by the I. O. and therefore, Ext. C cannot be said to have any evidentiary value. In fact, the defence laid much stress on the alleged contradiction made by the prosecution witnesses at the stage of investigation of the case. The learned Magistrate though found a prima facie case to have been made cut against the accused persons, did net examine the evidence in detail as a trial court is required to do. He was mainly influenced by the fact that as the case ended in the final report, that itself was sufficient to destroy the truth of the prosecution story. To quote his own words he has said :
'The evidence of the I. O. in this case who has given evidence in support of the defence is alone sufficient to determine if there was any offence.' At another place he said: 'The investigation has been supervised by high responsible officials who after through investigation have found no case against the accused persons.'
The approach of the learned Magistrate is wholly erroneous. A Court has to come to a finding about the guilt or innocence of the accused on the materials placed before it, uninfluenced by any extraneous considerations. Here the learned Magistrate was influenced by the results of the investigation made by the Police Officers which ended in the submission of a final report. In fact, the filing of a complaint after submission of the final report by the police was itself a challenge to the final report. I have already discussed about the evidence adduced in this case on behalf of the prosecution. Ignoring the alleged contradictory statements made before the police, there are however, some unsatisfactory features in this case for which, I think, the accused persons are legitimately entitled to the benefit of doubt.
As stated earlier, the names of the three accused persons, Bira, Banshi and Kulamani were not mentioned in the F. I. R. though they are wellknown to P. W. 1 who claimed to have seen them at the time of occurrence. The explanation offered by P. W. 1 was that he stated the names but they were omitted by the Police Officer cannot be accepted, as there is no allegation in the body of the F. I. R. itself about any of these accused persons, so far as the accused Hamid is concerned, it is admitted that he and P. W. 6 are not in good terms for the last ten to fifteen years. The recovered cartridges from the houseof P. W. 6 did not fit in with the gun of accused Hamid. Some of the material witnesses such as Puma, Govind (not P. W. 3) and Ucchhab have (not ?) been examined and no satisfactory explanation has been given for their non-examination. These are some of the circumstances apart from the alleged contradictions of the prosecution witnesses which weigh heavily against the prosecution story. It must therefore be held that the prosecution has not been able to make out its case against the accused persons beyond all reasonable doubt. The order of acquittal must accordingly be maintained and the appeal dismissed.