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Mani Mohan Ghose Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1931Cal745
AppellantMani Mohan Ghose
RespondentEmperor
Cases ReferredEmperor v. Bhutnath Ghose and Emperor
Excerpt:
- s.k. ghose, j. 1. in this case the appellant mani mohan ghose has been convicted under section 364, i.p.c., and sentenced to undergo rigorous imprisonment for six years.2. the prosecution case is this. one soroshibala was a prostitute and was in the keeping of one hari ghose, brother of the appellant moni ghose. on 23rd december last moni and one lakhmi went to the house of soroshi, the owner of which is an elderly woman named kali-dasi. moni represented to soroshi that his brother hari was holding a picnic somewhere across the river and had asked him to fetch soroshi to that place. soroshi declined to go in the morning, but she agreed to go in the evening. thereupon in the evening moni and lakhmi again came to the house and moni, it is alleged, induced soroshi to put on her ornaments,.....
Judgment:

S.K. Ghose, J.

1. In this case the appellant Mani Mohan Ghose has been convicted under Section 364, I.P.C., and sentenced to undergo rigorous imprisonment for six years.

2. The prosecution case is this. One Soroshibala was a prostitute and was in the keeping of one Hari Ghose, brother of the appellant Moni Ghose. On 23rd December last Moni and one Lakhmi went to the house of Soroshi, the owner of which is an elderly woman named Kali-dasi. Moni represented to Soroshi that his brother Hari was holding a picnic somewhere across the river and had asked him to fetch Soroshi to that place. Soroshi declined to go in the morning, but she agreed to go in the evening. Thereupon in the evening Moni and Lakhmi again came to the house and Moni, it is alleged, induced Soroshi to put on her ornaments, saying that there would be many other women wearing ornaments and that therefore she should also go there properly dressed and wearing ornaments. Moni and Lakhi then took Shoroshi out of the house in the early part of the night and that was the last that Kalidasi saw of Soroshi. Moni and Lakhi took Soroshi in a boat which was rowed by one Bamapada Majhi. Eventually Lakhi got down at one place and Moni got down with Soroshi at another place, and that was the last that Bamapada also saw of Soroshi. It is said that Soroshi had left her room locked up, keeping a dog inside, and that Moni told the bariwali Kalidasi that Soroshi would coma back on the following day. On 24th December however Soroshi did not return, and at night Hari came to Kalidasi's house. Then both Hari and Kalidasi went to Nabadwip thana and there Kalidasi stated to the Sub-Inspector, P. W. D. 21, that her niece Soroshi, a prostitute aged about 22, was taken by Moni Ghose yesterday night to Swarup-ganj, saying that a feast was going on there and Moni's brother Hari had sent Moni to take Soroshi. Hari denied having sent Mani, and Soroshi had gone with ornaments on her person, and Lakhi Majhi accompanied yesterday to take Soroshi. The Sub-Inspector made a record of this statement in the station diary: vide Ex. 5. He asked Kalidasi to bring Soroshi from Swarapgunge and at that time he took no further steps. On the following day, the 25th, at 1 p. m., Kalidasi came to the thana and made the following statement:

She searched for Soroshi at Swarupgunge but could not find her; she did not also meet Lakhi or Moni there, and she heard from Buli peshakar that Soroshi did not visit her house and Soroshi had left her dog in her room locked up from outside and so she must have thought of coming back early at the time of departure, and Haridas denied having sent Moni to take Soroshi whom he often visits.

3. The Sub-Inspector entered this information in his station diary: vide Ex. 6. After getting this statement from Kalidasi the Sub-Inspector thought he ought to do something and in the evening he went to Swarupgunge side of the river to investigate. He searched for Soroshi and Moni but he could not find them. On the 26th at 6 a. m., he found Moni at his house and questioned him. Moni said that one Nirmal Babu had taken Soroshi away to Darjeeling and further that this Nirmal Babu was a relation of one J. C. Pal Choudhury of Moheshgunge and he worked in a tea garden. Saying this, Moni gave him the key of the lock of Soroshi's room, and it was then opened. On that date the Sub Inspector also examined the boatman Bamapada. Meanwhile he had made inquiries in order to verify Moni's statement regarding. Nirmal and Jyotis, and on getting a reply from the latter he arrested Moni and Lakhi at about 11 a. m. But before that at 9 a. m,. the Sub-Inspector took another statement from Kalidasi, which he recorded in the form of a first information: vide Ex. 1. At that time also nothing definite was known regarding Soroshi's fate and Kalidasi stated that:

as Soroshi had not yet returned home she believed that Moni and Lakhi had taken her somewhere and detained her, and she ended her statement by saying that Soroshi might have been killed by the culprits for her ornaments,

of which she gave a list. On the 27th following a daffadar found certain pieces of human bones lying on the bank of the river and before that some persons had seen the dead body of a woman lying there. On receiving that information the Sub-Inspector went to the spot,, made inquiries and discovered certain other objects. The prosecution case further is that on 24th December the accused Moni had sold a pair of gold rulis belonging to Soroshi to a goldsmith at Krishnagar. On these alleged facts Moni and Lakhi were put on their trial on a charge under Section 364, I. P.C.

4. The defence of the accused was a mere denial; Lakhi has been acquitted and Moni has been convicted as mentioned above.

5. The learned Judge in his charge to the jury explained the law with reference to the charge under Section 364, and the learned advocate for the appellant has taken no exception to this part of the charge. The learned Judge was careful to point out that intent to murder was an essential ingredient of the offence, that the offence might be committed without the murder actually taking place, but that the alleged fact of murder was one of the circumstances on the basis of which it was sought to be proved that the accused were actuated by the aforesaid criminal intent. In dealing with the evidence the learned Judge pointed out that the only direct evidence regarding the employment of deceitful means was given by Kalidasi, P. W. 1. The learned Judge dealt at length with her evidence and along with that he dealt with the evidence of Hari Ghose, P. W. 20, and also of P. Ws. 7 and 16 which was to a certain extent corroborative. Then, tracing the progress of the party from Kalidasi's house, the learned Judge went on to deal with the evidence of the boatman Bamapada Majhi, P. W. 3. On this point the learned Judge also drew the attention of the jury to the evidence of the Court witness Bholanath and of P. W. 14. This brings the evidence to the stage at which Soroshi was last seen alive;

6. Then comes the evidence as to the alleged finding of a dead body and of certain other things which were identified as belonging to Soroshi. The dead body itself was not found at the time of the investigation and so it has not been identified. But the articles found comprised among other things, some madu-lies, a piece of cloth border, toe-rings and so forth, and likewise, a fresh human skull with teeth. Most of the things, including a broken tooth, have been deposed to by some of the witnesses as belonging to Soroshi. On this point the learned Judge has dealt with the evidence of P. Ws. 2, 4, 6, 8 and 16. On the question of identification there is the evidence of Kalidasi and also of the Assistant Sub-Inspector, P. W. 19. The human bones were of course not identified but according to the doctor P. W. 15, they were female bones. Then the learned Judge drew the attention of the jury to the evidence as to the marks of struggle near this place.

7. The next stage is the alleged sale of gold rules by the accused. On this point important evidence was furnished by two goldsmiths, P. Ws. 9 and 11, and the learned Judge dealt at length with their evidence. He next went on to deal with the evidence as to the handing over of the key of Soroshi's room by the accused Moni.

8. The last stage of the evidence is regarding certain statements made by Moni before his arrest regarding one Nirmal who, he alleged, had taken out Soroshi, and regarding one Hazari Pal who, he next alleged, had taken out Soroshi. The prosecution is that both these statements are false and the learned Judge drew the attention of the jury to the evidence on this point.

9. This appeal is really sought to be supported on two grounds. The first ground is that, out of the aforesaid three statements made by Kalidasi to the Sub-Inspector, the first in point of time, as per entry in the station diary Ex. 5, is really the first information and the other two, vide Exs. 6 and 1, are statements made to the police in the course of the investigation and therefore excluded by Section 162, Criminal P.C. So, it is argued, there has been a misdirection.

10. It may be profitable, to examine this point as there seems to be an idea gaining ground that the sole criterion of a first information is that it is the first in point of time before an investigation, and that a subsequent statement, though in the nature of an information is excluded by Section 162, Criminal P.C. I may first mention how the learned Judge dealt with this point. He has made the following note in recording the evidence of P. W.1:

The defence object to the document being admitted as first information as it alleged that the previous station diary entry is the real first information. I find however that the previous actions of the Sub-Inspector were taken under Ch. 13 as noted by the Sub-Inspector in his diary and not Ch.14 of the Code. The defence objection is therefore overruled and the document is allowed to be read as this is the first information on the basis of which the real investigation under Ch. 14 commenced.

11. This distinction as between Ch. 13 and Ch. 14, Criminal P.C., may not be of real importance. These two chapters cannot be said to be mutually exclusive. Ch. 14 constitutes part 5 of the Code and deals with 'information to the police and their powers to investigate.' It prescribes the procedure for investigation. But this investigation is not confined to cognizable offences. It may be into noncognizable offences under Section 155, or into cases of no crime at all, e.g., unnatural death as under Section 174. Outside part 5 of the Code a police officer may do many things; for example, he may arrest, take preventive action, disperse unlawful assembly and so forth He may do these things while investigating or even without investigating. Even 'information' may be given by one police officer to another under Oh. 13, Section 150. Thus it cannot be said that, because a police officer is investigating, therefore he is not doing anything under any other chapter or vice versa. On the contrary it is quite consistent with human conduct and the natural course of events that preventive action started under Oh. 13 may lapse into investigation under Oh. 14. So far as the beginning of the latter is concerned, it will be marked by a record of a statement which is known as the first information of the offence for the purposes of the Procedure Code. 'First' information or 'first' information report is not mentioned in the Code. But these words are always understood to mean information recorded under Section 154, Criminal P.C. The conditions as to the record of an information under Section 154 are first, it must be an information relating to the commission of a cognizable offence. Secondly, it must be given to an officer in charge of a police station. Thirdly, it must be put into writing. If already written, it is to be signed by the person giving it; if it is oral, it must be taken down in writing and read over to the informant. Fourthly, the substance of the information shall be entered in a book. In Bengal the practice is to enter the information on a form which combines the third and the fourth conditions. This is called 'first information report,' and it is prescribed by Bengal Police Regulations, 1927 Vol. 1, Rule 200, p. 200 and Vol. 2, p. 65. Thus the document itself has to be produced as evidence under Section 91 or Section 35, Evidence Act, when the statement contained therein becomes relevant : see for instance the case of Emperor v. Chittar Singh : AIR1925All303 , the case of Asfar Sheikh v. Emperor [1910] 11 Cr. L.J. 557 and the case of Aktar Singh v. Emperor [1913] 14 Cr. L.J. 642. This point however was not argued in this appeal and it does not arise for our decision.

12. The conditions as to writing in Section 154 of the Code are merely procedural. If there is an 'information relating to the commission of a cognizable offence' it falls under Section 154 and becomes admissible in evidence as such, even though the police officer may have neglected to record it in accordance with law. Owing to this neglect in particular cases, the Courts have laid down from time to time that the information which starts the investigation is the real first information under Section 154 and should be treated in evidence as such. It does not depend on the sweet will of the police officer, who may or may not have recorded it. But the condition as to the character of the statements is really twofold : first, it must be an information and secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. It was never meant to be laid down that any sort of information would fall under Section 154 so long as it was the first in point of time.

13. I have examined the oases to which I refer below and I find that in all of them the decision was given solely with reference to the facts and with a few unimportant exceptions, previous decisions were not referred to. As to the point that the information must be the first in time and on which investigation started, the Calcutta cases usually cited are King Emperor v. Daulat Kunjra [1902] 6 C.W.N 921, King Emperor v. Bhutnath Ghose [1903] 7 C.W.N. 345, Emperor v. Kampu Kuki [1907] 11 C.W.N. 554, and Emperor v. Dina Bandu Maitra [1904] 8 C.W.N. 218. The first three are decisions of Prinsep and Henderson, JJ., of the year 1902. The last one is of 1903; it refers to the first two, but decides on another point. The strongest case perhaps from my point of view is the case of the Emperor v. Kampu Kuki [1907] 11 C.W.N. 554. In that case what happened was that one A informed the Sub-Inspector that his brother M was missing. The Sub-Inspector did not record this under Section 154, but he investigated the matter. After four days he recorded another statement in the form of a first information under Section 154. It was held that this latter statement was not really the first information, because the information already received by the Sub-Inspector had led him to believe that a murder was committed and so he started an investigation. To the same effect is the case of Chandrika Ram Kaha v. King-Emperor A.I.R. 1922 Pat. 535. There also it was distinctly found that the information which was first laid related to a cognizable offence. The same thing happened in the case of Gansa Oraon v. King-Emperor A.I.R. 1923 Pat. 550.

14. It frequently happens that more than one person goes to the police officer at the same time and makes statements relating to the same offence. I am not referring to counter cases. It may be argued that there may thus be more than one information. So there may, but the question is, which is the first In practice there is generally no difficulty. The police officer uses his common sense and records one statement as an information under Section 154. After doing that, if he chooses to record other statements, they will be in the nature of statements in the course of the investigation. It was pointed out in the case of Gansa Uraon v. King-Emperor at pp. 523 and 531 of 2 Pat. it is possible for a Sub-Inspector to have more than one first information, But this is true only theoretically. No doubt Section 157 requires the police officer to proceed to the spot to investigate, but this does not mean that investigation under Ch. 14 does not begin until the officer has reached the spot.

15. Under Sub-section (a) of that section, when the case is not serious, investigation need not be at the spot; as distinguished from Sub-section (b) where investigation may be dispensed with altogether. Moreover 'investigation' includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf : Section (4), Sub-section (b). Under Section 160 also a police officer has the power to require the attendance of witnesses before himself. In that sense the officer may be investigating under Ch. 14 even before going to the spot, or after returning from the spot, or while on his way to the spot, and all this is what frequently happens. But although investigation must in the nature of things follow the information, it is not correct to say that the fact of the officer starting an investigation is the sole criterion of a first information under Section 154. As mentioned already, under Oh. 14 the officer may investigate a noncognizable offence on the order of a Magistrate (Section 155), or he may investigate a case of unnatural death (Section 174), or he may investigate without information (Section 157 (1)), or he may not investigate at all (Section 157 (1) (b)).

16. Nevertheless, an information may be one under Section 154, if it is one ''relating to the commission of a cognizable offence.' In argument at the Bar, stress is sometimes laid on the word 'relating,' as indicating that the information need not be of all the elements of an offence. For example, as here, if the information is that a person has been taken out by some persons and he has not returned, that, it is argued, is sufficient first information of abduction with a criminal intent. It seems to me that, when the question of admissibility of an information comes to be discussed in Court, we all suffer from the fact that we now know what has happened. But the question is: What did the informant know at the time, or rather, what did he say at the time The question whether an information relates to the commission of a cognizable offence depends, not even on what the police officer thinks, but on what the informant says. By the word 'relating' is meant that there need not be complete or satisfactory proof or evidence given at the time; it is sufficient if it indicates that a cognizable offence has been committed. But until there is this indication, it cannot be said that the information is one 'relating to' such an offence. The indication may only raise a case for investigation, or it may not even do that : see Section 157. But the indication must be there.

17. I may cite for instance the case In re Nandamuri Anandayya [1914] 15 Cr. L.J. 622. In this case a telegram purporting to have been sent by one Anandayya and complaining of a dacoity as having been committed at a certain village was received by a police Inspector. But no names were mentioned of any person concerned in the dacoity. The Inspector then went to the spot and started investigation and in the course of the investigation he received another statement which was treated as. the first information. In dealing with the facts of the case it was remarked as follows:

It can hardly be contended that every inquiry which a police officer makes must necessarily be an investigation under Section 157. Most investigations are initiated on information recorded under Section 154 and vouched for by the informant. But the police must frequently hear of alleged offences from less reliable sources, e. g., village gossip, or the receipt of a telegram which, so far as authenticity goes, stands in no better position. In such cases it is discretionary with the officer to take action or not and before deciding as to the course to adopt, he may frequently deem it well to make a few preliminary and informal inquiries as to whether there is anything in what he has heard to render a formal investigation desirable. This is what, as it seems to us, the Inspector has done in the present case and we have no hesitation in holding that his action did not amount to an investigation under Section 157.

18. In the case of Gansa Oraon v. Emperor, Dawson-Miller, C.J. says at p. 523 (of 2 Pat.):

Circumstances may arise in which information is given to the police of such a vague and indefinite character that it cannot be treated as coming under Section 154, so as to make it incumbent upon the officer in charge of the police station to start an investigation and he may reasonably require more direct information before doing so, and such further information given to him in such circumstances might not come under the provisions of Section 162. The information referred to in Section 154 appears to me to be something in the nature of a complaint or accusation or at least information of a crime, given with the object of putting the police in motion in order to investigate, as distinguished from information obtained by the police when actively investigating a crime. I can also conceive that the information referred to in Section 154 may come from more than one source and more than one such information may be recorded at or about the same time, but once the police have taken active steps to investigate, any written statements taken by them cannot be admissible as evidence as they would come within Section 162 : see also the case of Sultan v. C. De M. Wellborne A.I.R. l925 Rang. 364.

19. It must be conceded then that in a suitable case information under Section 154 may be recorded even in the course of an investigation by a police officer. The only point is that from that information investigation begins into the cognizable offence which was divulged by the information. If prior to that a statement was made to the police and recorded in the station diary (as here) is it to be excluded from evidence I think not, because Section 162, Criminal P.C., prohibits on conditions the use in evidence of a statement to the police

at any inquiry or trial in respect of any of-fence under investigation at the time when such statement was made.

20. But under the circumstances before mentioned, although an information under Section 154 may be recorded in the course of an investigation, the offence is not under investigation until the first information is obtained. Therefore in such a case, prior statements to the police are not affected by Section 162.

21. It has been held that a first information under Section 154 is not substantive evidence of the facts stated therein, but that it is evidence to corroborate the informant under Section 157, Evidence Act, or to contradict him under Section 155 and Section 145 or is admissible under Section 32 (1) or Section 8 of that Act: see the case of Azimaddy v. Emperor : AIR1927Cal17 and the case of Peary Mohan Das v. D. Watson [1912] 13 Cr. L.J. 65. Similarly evidence may be given of other statements which are not excluded by Section 162, Criminal P.C. The only difference is that, in the case of a first information, it is required by law to be put into writing and there is some guarantee of its correctness. From this point of view the Courts have from time to time stressed the importance of a first information as showing ' on what materials the investigation commenced and what was the story then told:' see the case of King-Emperor v. Bhutnath Ghose and Emperor v. Kampu Kupi. It may be noted that in both these cases apparently there was no record at all of the real first information and so it was not put in evidence. The law also recognizes the importance of a first information by making careful provisions as to record. On the other hand, by taking that as the first information which is the first in point of time, although it does not relate to the commission of a cognizable offence, and leaving out a subsequent statement which is an information of such an offence, one may miss valuable evidence, resulting in failure of justice. It has been pointed out that, in the case of a subsequent information, there is risk of concoction. Nevertheless in law it may be an information under Section 154 and as I have pointed out, the prior statements are also not excluded from evidence. I stress this point, because the section is meant to be an aid to justice, and one should not shut one's eyes to the natural course of human conduct. Things do not always happen according to procedure, e. g., with a regular first information lodged at the thana and recorded under Section 151. The present case is an instance in point.

22. Reverting now to the merits of this appeal, the question is whether Kali Dasi's statement, vide Ex. 5, is the real first information, and the subsequent statements should be excluded by Section 162, Criminal P.C. The statement as per Ex. 5 was first in point of time. But does it satisfy the other condition, namely, does it relate to the commission of a cognizable offence on the face of it, and not by ex post facto argument On the face of it, it does not. Mr. Basu for the appellant strongly relies on the evidence of Kali Dasi which is to this effect:

Hari made a statement to Daroga Babu. Daroga declined to go to the place where Mani was merry-making with a woman. Daroga asked Hari to take me to the place and send the woman Soroshi with me to Daroga Babu. I said I would not go at night, as I feared Soroshi had been killed and I might be killed. Daroga asked Hari to send the woman to thana or to my house with the help of the constables who were near the place. Hari went away. I also came away to my house.

23. Mr. Basu has pointed out that Hari was present there and that he denied that he had instructed the accused, and it is argued that there was abduction. Kalidasi also gave out that she feared that Soroshi had bean killed. But what Kalidasi said about this fear of hers was no part of her information. She merely stated that she feared, because the .Daroga had asked her to go with Hari at night. The statement regarding that fear was too vague and indefinite. Moreover that statement does not at all appear from the Sub-Inspector's evidence or from the record made by him in the station diary, and there was no cross-examination regarding Kali Dasi's alleged statement of fear to the Sub-Inspector. It is also noteworthy, when we look to the Sub-Inspector's conduct of the case, that he did not start the investigation at once or budge for the thana, but he merely asked Kali Dasi to bring back Soroahi from Swarupgunge. It was perhaps natural in the circumstances that ha thought that the prostitute had gone out for merry-making and therefore no further action was needed. The second statement as per Ex. (6) was also innocuous. But the Sub-Inspector thought that he should do something and so he proceeded to Swarupgunge to look for the missing woman. Mr. Bose further argued that the Sub-Inspector went to the spot for investigation and that therefore Ex. 5 was a record of a first information under Section 154. But as I have pointed out the investigation was not necessarily into a cognizable offence, because at that time there was no information of one. The Sub-Inspector's own explanation is that he was taking preventive action under Chap. 13, and this he noted in the station diary. It is also corroborated by his conduct. He looked for Soroshi and Moni and on finding the latter, questioned him and obtained the key of Soroshi's room. He says that at that time there was no cognizable case before him and so he did not search Mani's person. He did not arrest Moni but called him to the thana and confronted him with Kali Dasi. At that time he did not suspect the commission of an offence. When he found that the statement of Moni regarding Nirmal was not correct, it was then when he arrested Moni and Lakshmiand searched their persons. This was at about 11 a.m. and it was the cumulative result of the evidence which had been collected up to that time.

24. The supposed remains of the deceased were not found till the following day. The first information as per Ex. 1 had been recorded long before. Therefore this is one of those cases where the police officer starts investigation on an information which was not one relating to the commission of a cognizable offence. At that time the informant did not know, and her suspicion, if any, was too vague. The Sub-Inspector went out to take steps of a preventive character to trace out the woman, so that no harm might befall her. The sequence of events led to this that the investigation merged into one regarding a cognizable offence. The starting point is furnished by the circumstance when the Sub-Inspector sat down and recorded the first information Ex. 1. The evidence does not show that Ex. 1 was recorded too late. I have pointed out that it was recorded long before the suspected remains of Soroshi were discovered. Therefore Ex. 1 is really the first information and the previous statements are also admissible because they are not excluded by Section 162. I may point out that there is no real discrepancy amongst the three statements of Kali Dasi before the police. The only point of difference is that Ex. 1 is more detailed and it contains specification of certain ornaments, which were not mentioned in the previous statements. But Kali Dasi herself says that she mentioned the fact that Soroshi had gone out wearing ornaments when she made the first statement to the police at the thana.

25. The next point argued in support of the appeal is, that the learned Judge should not have dealt with the statements of the accused to the Sub-Inspector regarding Nirmal and Hazari because such statements are excluded by Section 162. This point however must fail with the first one I have already pointed out that up to the recording of the first information Ex. 1, there was no investigation into the commission of an offence because there was no information of one, and so the prohibitive clause of Section 162 does not apply. It has been held that Section 162 does not apply to the statement of an accused person. But that point does not arise for discussion here.

26. The points argued in behalf of the appellant must therefore fail. The charge of the learned Judge was full and fair. The evidence was well discussed in the light of probabilities and the learned Judge warned the jury that they must be satisfied both as to abduction and as to the alleged criminal intent. The evidence, if believed, is sufficient to establish both.

27. The appeal is dismissed. The appellant must surrender to his bail and serve out the remainder of the sentence.

Lort-Williams, J.

28. I agree.


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