1. In this case the facts involved shortly stated are as follows : On the night of 20th September last there was some altercation between the deceased Anu and the accused Momin over the latter beating the deceased's brother Hamid in the course of the day. On the following morning when Anu was near his cowshed the altercation was renewed and it was alleged that Momin stabbed Anu on the side with a knife. People gathered at the scene of occurrence and Anu's brother Mayur hastened for the dafadar of the village. The dafadar took him to the Assistant Sub-Inspector Prufulla Mohan who was in the neighbourhood of Bashdi Bazar investigating into another case. Mayur, it is said, made a statement to Prafulla which Prafulla recorded. The Assistant Sub-Inspector came to the place with Mayur but found that Anu was already dead. It appears that before the Assistant Sub-Inspector arrived at the scene of occurrence another brother of the deceased had started for the thana to lodge a formal complaint of death. The information that was given to the Assistant Sub-Inspector Prafulla in the neighbourhood of the Bashdi Bazar has been tendered in evidence in this case and has been marked Ex. (1). The information lodged at the thana by the brother of the deceased had already been tendered in evidence and had been marked Ex. (A). Now it appears that the learned Judge in the course of his charge to the jury advised the jury that the statement of the brother of the deceased at the thana could not be regarded as the first information report or accepted in evidence because the information of the occurrence itself had already been given to the Assistant Sub-Inspector Prafulla in the neighbourhood of Bashdi Bazar and that the last mentioned information was to be treated as the first information.
2. Now the learned Counsel who appears for the appellant has argued that the Judge was in error. in telling the jury that Ex. (A) could not be treated as the first information report and accepted in evidence because of the fact that Ex. I was to be treated as the first information report. The learned Counsel argued that if one looks at the terms of Section 154, Criminal P.C., it Is abundantly clear that the information such as it was which was recorded in the mofussil by the Assistant Sub-Inspector Prafulla could not be treated as the first information report because he was not the officer-incharge of the police station in fact or within the meaning of the expression as defined in Section 4, Criminal P.C. Therefore, it is argued that the information if any, which was recorded by Prafulla could not be treated at all as the first m information report and there was no reason whatsoever in rejecting Ex. A as being the first information report duly lodged at the thana by the brother of the deceased.
3. Various other points were taken. But w it is only necessary to notice one and c that is that there is no reference whatsoever in the learned Judge's charge to c the jury to the material portions of d the evidence of Omar Talukdar, specially the cross-examination of Omar, P.W. 5. We think the learned Counsel's first point is a sound one and must be given effect to. It is common ground d that the Assistant Sub-Inspector was not s the officer-incharge of the police station at the time when he recorded the information which had been given to him and which information is marked as Ex. I in the case. It is also clear that he cannot be regarded as the officer-incharge of the police station because there is no evidence to show that the officer-incharge of the police station at the time with which we are concerned was unable to perform his duties as such. In other words Prafulla does not come within the meaning of the expression 'officer-incharge of the police station' as defined in Section 4, Criminal P.C. He had, therefore, no authority whatsoever to record the information which was given to him as the first information in the case. In the circumstances, there is no other alternative but to hold that the learned Judge was in error when he advised the jury to put aside Ex. A, it being a document later in point of time. But it was in fact the first information report lodged at the thana in accordance with the provisions of Section 154 of the Code. This was a serious misdirection and although we are not unmindful of the argument which was addressed to us by the learned Deputy Legal Remembrancer that no prejudice was caused to the accused by the way in which the jury was advised with reference to the competitive contents of the two documents, we are unable to hold that the error into which the Judge fell was of such an insignificant character that it should not induce us to interfere with the verdict of the jury. On the contrary we are of opinion that the error is a serious one and it is impossible to say that the jury was not misled. If one looks into the contents of the two documents, Ex. A and Ex. I one finds that in Ex. A there are mentioned the names of three witnesses and that in Exhibit I there are mentioned in addition to the name of Leakat who is mentioned in Ex. A the names of other witnesses specially of those who are described as the eyewitnesses of the occurrence. It is possible that the jury did come to the conclusion that the oral evidence in the case has received a certain amount of corroboration by reason of the fact of the mention of the names of the two persons who are described as the eyewitnesses in Ex. I itself. One does not know but it is possible that such a view might have been taken by the jury, and if such a view was really taken then it was a matter calculated to prejudice the interests of the accused, We think in all the circumstances of the case that it is safer that we should interfere with the verdict of the jury and direct a retrial.
4. The other circumstance to which reference has been made, namely, the non-mention of the material portions of the evidence of P.W. 5, specially what is elicited in his cross-examination is also a circumstance which should be taken into consideration. But if it stood by itself we should have hesitated to interfere with the verdict of the jury. But we think that on the first ground the appellant is entitled to ask us to interfere with the verdict.
5. We accordingly set aside the verdict of the jury and direct retrial by the Sessions Judge of Mymensingh.