Holding

The appellants actively participated in the murder with a common intention, and the conviction under Section 302 read with Section 34 IPC is upheld; the telephonic message is not an FIR.

Summary

The Supreme Court examined the murder of Vikramaditya Singh, in which the appellants Patai @ Krishna Kumar and Brij Kishore were accused of accosting the victim with pistols, dragging him to a spot under a peepal tree and facilitating his killing by co‑accused who fired the fatal shots. The appellants contended they merely held the victim and that there was no pre‑concerted plan, also arguing that two First Information Reports (FIRs) existed and that the telephonic message from the Assistant Station Master qualified as an FIR. The Court held that the telephonic message was merely a cryptic alert, not an FIR, and that the valid FIR was the one filed by the informant at the scene. It further found that the appellants’ acts of accosting and dragging the victim were acts in furtherance of a common intention to murder, satisfying the requirements of Section 34 IPC. Consequently, the prosecution’s evidence established the appellants’ liability for murder under Section 302 read with Section 34, and their convictions were upheld. The appeals were dismissed.

Issues considered

The appellants’ participation amounted to common intention under Section 34 IPC for the murder committed under Section 302.
Whether the telephonic message from the Assistant Station Master constitutes a valid First Information Report.
Whether the existence of two FIRs affects the prosecution’s case.
Whether the appellants’ conduct of holding and dragging the victim suffices for liability under Section 302 r.w. Section 34.

Legislation cited

Code of Criminal Procedure, 1973s. 162, s. 313
Indian Penal Code, 1860s. 302, s. 33, s. 34

Subjects

murdercommon intentionSection 34 IPCFirst Information Reporttelephonic messageevidencewitness testimonycriminal liability

Judgment

[2010] 3 S.C.R. 1135

PATAI @ KRISHNA KUMAR A
v.
STATE OF U.P.
(Criminal Appeal No. 1718 of 2007)

MARCH 30, 2010
B
[DR. MUKUNDAKAM SHARMA AND A.K. PATNAIK, JJ.]

Penal Code, 1860: s.302 r.w. s.34 - Common intention
- Appellants-accused committed act of accosting the
deceased with pistols and dragging him away to the place of C
incident - The other two accused persons armed with pistols
fired at the deceased which resulted in his death on the spot
- Conviction under s. 302 r. w. s. 34 - Challenged by appellants
on the ground that they were only holding the deceased and
consequently, there was no pre-conceived or pre-concerted . o
meeting of minds - Held: Appellants actively participated in
the commission of the offence by doing acts in furtherance
of the common intention of killing the deceased - Conviction
upheld.
FIR: Cryptic message - Not containing details regarding E
the manner in which incident took place or name of the
deceased or accused - Held: Cannot be termed as FIR - A
message or communication to be qualified to be an FIR must
be something in the nature of a complaint or accusation or
at least some information of the crime given with the object F
of setting the police or criminal law into motion - An FIR must
at least contain some information about the crime committed
as also some information about the manner in which the
cognizable offence was committed - Penal Code, 1860 -
s.302 r.w. s.34. G
Prosecution case was that on the fateful day,
deceased, his son-PW-1 and PW-3 were returning from
the court where litigation was pending between the
deceased and 'G' alongwith others. When they got down
1135 H
1136 SUPREME COURT REPORTS [2010] 3 S.C.R.

A from the train, the accused-appellants and the accused
'SK' armed with pistols accosted the deceased. 'G' who
was travelling in the same train after alighting from the
train exhorted to the other accused persons to avail the
opportunity to eliminate the deceased, whereafter the
8 appellants dragged the deceased to the place of incident.
'SK' and 'G' fired at the deceased which resulted in his
death on the spot. On hue and cry, some villagers
assembled there and saw the appellants, 'SK' and 'G'
running away from that place. The informant wrote an
C FIR on the spot itself and submitted it to the Police
Station. Trial Court convicted the accused persons under
Section 302 r.w. Section 34 IPC. High Court upheld the
order of conviction.
In these appeals, it was contended for the appellants
D that they were only holding the deceased and
consequently, it could not be held that there was any pre-
conceived or pre-concerted· meeting of minds and
therefore their conviction under Section 302 read with
Section 34 IPC was illegal; that there were two separate
E First Information Reports lodged with the police - tha-Jirst
one was lodged at about 4.30 p.m. by the Ass,istant
Station Master whereas the First Information Report
second in point of time was lodged by P.W. 1 at about
5.15 p.m.; and that since the First Information Report
F lodged by Assistant Station Master indicated that there
was no eye-witness to the occurrence therefore framing
and calling of the three eye-witnesses by the prosecution
could not have been believed and the prosecution story
should fail.
G Dismissing the appeals, the Court
HELD: 1.1. The report given by the Assistant Station
Master appeared to be a telephonic message which was
sent by the Cabin man at the Rooma Halt Station to GRP.
H This also found corroboration in the deposition of DW-1
PATAI@ KRISHNA KUMAR v. STATE OF U.P. 1137

who stated in his evidence that he registered a case in A
GD and sent a message at 4.40 p.m. to the control room
on telephone and also gave a wireless message to the
Maharajpur Police Station. There was however nothing
on record to indicate that the aforesaid report was sent
to the Maharajpur Police Station immediately and the B
same was received at the Police Station Maharajpur prior
to the lodging of the report given by P.W. 1. Besides, the
alleged report given by the Assistant Station Master
appeared to be very cryptic and without any details
regarding the manner in which the incident had taken c
place or mentioning the name of the deceased.
Considering the contents of the said message, it cannot
be said that there was any possibility of recording a First
Information Report on the basis of the message sent to
the GRP by the Assistant Station Master. There was no 0
concrete evidence to indicate that any such information
was in fact sent and received at the police station. In
order for a message or communication to be qualified to
be a First Information Report, there must be something
in the nature of a complaint or accusation or at least some
E
information of the crime given with the object of setting
the police or criminal law into motion. It is true that a First
Information Report need not contain the minutest details
as to how the offence had taken place nor it is required
to contain the names of the offenders or the witnesses.
But it must at least contain some information about the F
crime committed as also some information about the
manner in which the cognizable offence has been
committed. A cryptic message recording an occurrence
cannot be termed as a First Information Report. [Paras 11
and 15] [1143-G-H; 1144-C-H; 1145-A] G
1.2. The object and purpose of giving such
telephonic message is not to lodge the first information
report, but to request the officer in charge of the police
station to reach the place of occurrence. In the present H
1138 SUPREME COURT REPORTS [2010] 3 S.C.R.

A case, however, there was no proof regarding the fact that
the said information was sent to the Police at Maharajpur
and that it was received and therefore, the said
information cannot be said to be earliest first information
report submitted to the police. The actual first information
B report was the report which was submitted by P.W. 1, the
informant at 5.15 p.m. [Paras 16 and 17] [1145-D, E, H;
1146-A-B]
Bavaji Jadeja v. State (1994) 2 SCC, relied on.
c 2.1. The Investigating Officer clearly stated in his
deposition that he had recovered three tickets from the
posses~ion of the deceased. From the said deposition,
it was thus clearly established that on the fateful day not
only the deceased was travelling by the said train but the
0 two other persons namely, P.W. 1, the informant and P.W.
3 also travelled with him in the same train and all the three
got down at the Rooma Halt Railway Station where the
incident took place. Therefore, there was no reasonable
ground to doubt that P.W. 1, the informant and P.W. 3
E were not the natural witnesses. They had in fact
accompanied the deceased and also observed and saw
the manner in which the entire incident happened and
took place. P.W. 4 was also a fellow traveller in the same
train who had also got down at the Rooma Halt Station.
'"· F He clearly stated that he saw the occurrence. There was
nothing on record to cast a doubt as to the presence of
P.W. 4 also at the time and at the place of occurrence. The
evidence adduced by P.W. 1 and P.W. 3 clearly
corroborated each other with respect to the fact that both
the appellants accosted the deceased with pistols in their
G hands and both of them dragged the deceased from the
platform to the place near the Peepal tree where he was
shot dead by the other two accused persons. The
evidence adduced thus clearly established that all the
four accused persons carried weapons with them and at
H the exhortation of 'G' that it was the opportune time to
PATA!@ KRISHNA KUMAR v. STATE OF U.P. 1139

eliminate the deceased, appellants dragged the deceased A
from the platform to the Peepa/ tree, where the deceased
was shot dead by the other two accused persons. A pre-
concerted mind and a common intention to commit the
offence were apparent on the face of the record. [Paras
18 and 19) [1146-C-H; 1147-A-B] B
2.2. Section 34 IPC lays down that when a criminal
act is done by several persons in furtherance of the
common intention of all, each of such persons is liable
for that act in the same manner as if it were done by him
alone. The appellants committed the act of accosting the C
deceased with pistols and dragging him away from the
platform to a place near the Peepal tree at the exhortation
given by 'G'. Therefore, it could be said that not only the
two appellants were present at the scene of offence but
they actively participated in the commission of the D
off~nce by doing acts in furtherance of the common
intention of killing the deceased. [Paras 19-20) [1147-C-
E]
2.3. P.W. 1 clearly stated in his statement that he had
drawn up the said first information report at the place of E
occurrence in his own handwriting. The fact that the said
first information report was in a neat and clean
handwriting cannot always lead to the conclusion that the
said report was prepared by the police officer or at his
dictation. If the hand writing of the writer of the F
information is neat and clean and he could express
himself clearly, no fault could be found against such
writing. In the present case, there was a clear deposition
of PW-1 that it was drawn by himself and in his own hand
writing and there is no evidence to impeach or doubt the G
said statement of the witness. [Para 22) [1147-H; 1148-A-
C)
2.4. In the entire facts and circumstances of the case,
the prosecution was able to establish by leading cogent H
1140 SUPREME COURT REPORTS [2010] 3 S.C.R.

A and reliable evidence, the guilt of both the appellants and
therefore their conviction and sentence under Section
302 read with Section 34 IPC cannot be said to be in any
manner illegal or unjustified. [Para 23] [1148-D]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
B No. 1718 of 2007.
From the Judgment & Order dated 8.11.2006 of the High
Court of Judicature at Allahabad in Criminal Appeal No. 687
of 1980.
c WITH
Crl.A.No. 1719 of 2007.
Ratnakar Dash, Anilendra Pandey, Priya Kashyap, Dr.
Kailash Chand, P.K. Jain, Shekhar ,Raj Sharma, Chandra
o Prakash Pandey for the appearing parties.
The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA 1. These two appeals
arise out of a common judgment and order dated 08.11.2006
E passed by the High Court of Allahabad dismissing the appeals
filed by the appellants herein against their conviction and
sentence under Section 302 read with Section 34 of the Indian
Penal Code (for short the "IPC").
2. Shri Prithvi Pal Singh alias Chandra Prakash Singh, son
F of the deceased had lodged a report at the Police Station
Maharajpur, District Kanpur contending, inter alia, that on
29.07.1977 while he alongwith his father, Vikramaditya Singh
and one Sri Jagannath Dubey were coming back to their village
by Kanpur Allahabad Passenger Train from the Court of Munsif
G Hawaii, Kanpur where a litigation was pending between his
father Vikramaditya Singh and Sri Ganesh Singh and others,
they alighted at the Rooma Halt Station for the purpose of going
to their house. Further allegation was that the accused Sri
Shrawan Kumar, Sri Patai @ Krishna Kumar and Brij Kishore,
H
PATAI @KRISHNA KUMAR v. STATE OF U.P. 1141
[DR. MUKUNDAKAM SHARMA, J.]
\
who were armed with country made pistols, accosted the A
deceased.

3. It was alleged that the accused Ganesh Singh, who was
travelling in the same train but in a different compartment, after
alighting from the train exhorted that it is the opportune time to B
eliminate Sri Vikramaditya Singh, the deceased, whereupon
the present appellants Brij Kishore and Patai @ Krishna Kumar
dragged his father from the platform of the station to a place
under a Peepal tree whereupon Sri Shrawan Kumar and
Ganesh Singh put their country made pistols at the deceased C
and fired shots consequent to which Vikramaditya Singh died
instantaneously. On hue and cry having been made by Prithvi
Pal Singh @ Chandra Prakash Singh - the informant and Sri
Jagannath Dubey, Sri Iqbal, Sri Mahendra Singh, Sri Ram
Prasad Sharma and some other persons of village Gangaganj
came to the place of occurrence and saw the appellants running D
away from that place. It is further alleged that Prithvi Pal Singh
had written the First Information Report at the spot itself and
had submitted the same to the Police Station wherein an entry
was made.
E
4. After registering a case, investigation was conducted
during the course of which all the accused persons were
arrested. On completion of the investigation, a chargesheet was
filed against all the accused persons under Section 302 read
with Section 34 IPC. As many as 8 prosecution witnesses were F
examined which included, among others, Prithvi Pal Singh,
P.W. 1, Jagannath Dubey, P.W. 3, Sri Iqbal Singh, P.W. 4. Sri
Girja Shanker Yadav, the Sub-Inspector who had started the
investigation was examined as P.W. 6. Dr. R.S. Pundrik who
had conducted the post mortem examination on the dead body G
was examined as PW-7. The accused persons were ex9mine_d : ,
under Section 313 of the CrPC and on comP,l~~i,ori,~of).~~ t~i.~I.
the arguments of the counsel appearjng1for1 t~ 1 Ra.IBee!}%W~
heard. , " i' n·Ji'Js&:1c' 1.,,1s bac63::J9b
,,,;.,,Jl<:'v o:Jlq lC 0""~''i,:J.::nfl.J· s1q \'.!lS 8GW 91Sr\i
H
~vl. :-:~ ~ ~e2~1~bni; fl\."iiJ::.!1vr!OO 1iadt Sl1Jle1srU bns ~brim >.l
'I
1142 SUPREME COURT REPORTS [2010] 3 S.C.R.

A 5. The learned trial Court, after appreciating the evidence
on record passed a judgment and order dated 12.03.1980
finding all the accused persons guilty of the charge under
Section 302 read with Section 34 of the IPC and convicted all
of them under the aforesaid sections. By a separate order, they
B were sentenced to undergo imprisonment for life.

6. Being aggrieved by the aforesaid judgment and order
passed by the trial Court, three separate appeals were filed by
the accused persons - one by Shrawan Kumar and Brij Kishore
and the others by Ganesh Singh & Patai @ Krishna Kumar
C respectively. The High Court after considering the entire record
upheld the order of conviction and sentence and dismissed all
the appeals.

7. Being aggrieved by the aforesaid judgment and order
D passed by the High Court, the accused Ganesh Singh and Sri
Patai filed an appeal in this Court which was registered as
Criminal Appeal No. 1718 of 2007 whereas the accused Brij
Kishore filed a separate appeal which was registered in this
Court as Criminal Appeal No. 1719 of 2007. As the facts and
E legal issues urged in both these appeals are similar in nature,
we propose to dispose of both the said appeals by this
common judgment and order. Before adverting to the other
issues, we may record that during the pendency of the present
appeal, one of the appellants namely Ganesh Singh died and
F therefore his appeal stands abated. Thus, in the present
appeals we are concerned with only the two accused persons
namely, Sri Patai and Brij Kishore.

8. Both the counsel appearing for the said two accused
persons namely Patai and Brij Kishore very forcefully submitted
G before us that none of the aforesaid two appellants had fired
any shot at the deceased and the allegations that have been
made against them are that they were only holding the
deceased and consequently, it could not have been held that
there was any pre-conceived or pre-concerted meeting of
H minds and therefore their conviction under Section 302 read
PATA!@ KRISHNA KUMAR v. STATE OF U.P. 1143
[DR. MUKUNDAKAM SHARMA, J.]

with Section 34 IPC is illegal. A

9. It was also submitted that the prosecution has failed to
prove that the present appellants had shared an intention
common with that of the other two accused persons namely
Ganesh and Shrawan Kumar who had in fact fired shots from
8
their country made pistols at the deceased resulting in his
death. The next submission of the counsel appearing for the
appellants was that this is a case where there were two
separate First Information Reports lodged with the police - the
first one was lodged at about 4.30 p.m. by the Assistant Station C
Master whereas the First Information Report second in point
of time was lodged by P .W. 1 at about 5.15 p.m. The counsel
for the appellant forcefully. contended before us that since the
said First Information Report indicates that there was no eye-
witness to the occurrence, framing and calling of the three eye-
witnesses by the prosecution could not and should not have D
been believed and hence the prosecution story should fail.

10. It was also submitted that under any circumstance it
could not be said that the present appellants are guilty of
charge under Section 302 and at the most they could be E
charged under Section 304 of the Indian Penal Code.

11. We have considered the aforesaid submission in the
light of which we have carefully scrutinized the records. Since
there was a specific submission that there were two separate
F
First Information Reports lodged with the police on the same
date as aforesaid, we have analyzed the entire records. The
alleged First Information Report stated to have been lodged by
the Assistant Station Master is placed on record as Annexure
P-1.
G
12. The aforesaid report given by the Assistant Station
Master appears to be a telephonic message which was sent
by the Cabin man at the Rooma Halt Station to GRP. The text
of the message reads as follows: -
H
1144 SUPREME COURT REPORTS [2010] 3 S.C.R.

A "Message at 16.20 hrs. One passenger was shot dead at
Roome cabin got down by 2 KA passenger p1 proved and
arranged disposal of dead body."

13. It therefore appears that the aforesaid message was
sent by the Cabin man through the Assistant Station Master to
8
the GRP which was received at the GRP and on the basis of
which a chik report Ext. Kha-5 was prepared. This also finds
corroboration in the deposition of Shri O.N. Pandey, DW-1.

14. He has also stated in his evidence that he registered
C a case in GD No. 72, the true copy of which is Ext. Kha-8. He
further stated that at 4.40 p.m., he sent a message to the control
room on telephone and also gave a wireless message to the
Maharajpur Police Station, but he has admitted that he had sent
the wireless message through the control room. There is
D however nothing on record to indicate that the aforesaid report
was sent to the Maharajpur Police Station immediately and the
same was received at the Police Station Maharajpur prior to
the lodging of the report given by P.W. 1. Besides, the aforesaid
alleged report given by the Assistant Station Master appears
E to be very cryptic and without any details regarding the manner
in which the incident had taken place or mentioning the name
of the deceased.

15. Considering the contents of the said message; ·.it
cannot be said that there was any possibility of recording a First
F Information Report on the basis of the message sent to the GRP
by the Assistant Station Master. There is no concrete evidence
to indicate that any such information was in fact sent and
received at the police station. In order for a message or
communication to be qualified to be a First Information Report,
G there must be something in the nature of a complaint or
accusation or at least some information of the crime given with
the object of setting the police or criminal law into motion. It is
true that a First Information Report need not contain the minutest
details as to how the offence had taken place nor it is required
H to contain the names of the offenders or the witnesses. But it
PATAI@ KRISHNA KUMAR v. STATE OF U.P. 1145
[DR. MUKUNDAKAM SHARMA, J.]

must at least contain some information about the crime A
committed as also some information about the manner in which
the cognizable offence has been committed. A cryptic
message recording an occurrence cannot be termed as a First
Information Report.
B
16. In Ramsinh Bavaji Jadeja v. State (1994) 2 SCC 685,
this Court, while dealing with the issue as to when investigation
commences, observed with regard to the cryptic nature of a
message as follows in para 7 of that judgment:

"7 ................................... If the telephonic message is C
cryptic in nature and the officer in charge, proceeds to the
place of occurrence on basis of that information to find out
the details of the nature of the offence itself, then it cannot
be said that the information, which had been received by
him on telephone, shall be deemed to be first information D·
report. The object and purpose of giving such telephonic
message is not to lodge the first information report, but to
request the officer in charge of the police station to reach
the place of occurrence. On the other hand, if the
information given on telephone is not cryptic and on basis E
of that information, the officer in charge, is prima facie
satisfied about the commission of a cognizable offence
and he proceeds from the police station after recording
such information, to investigate such offence then any
statement made by any person in respect of the said F
offence including about the participants, shall be deemed
to be a statement made by a person to the police officer
"in the course of investigation", covered by Section 162 of
the Code. That statement cannot be treated as first
information report. But any telephonic information about G
commission of a cognizable offence irrespective of the
nature and details of such information cannot be treated
as first information report ........................................ ".

17. In the present case, however, there is no proof
regarding the fact that the said information was sent to the H
1146 SUPREME COURT REPORTS [2010] 3 S.C.R.

A Police at Maharajpur and that it was received and therefore,
the said information cannot be said to be earliest first
information report submitted to the police. The actual first
information report as appears to us from the record is the report
which was submitted by P.W. 1, Prithvi Pal Singh, the informant
B at 5.15 p.m. Therefore, the contention urged by the counsel of
the appellants that there were two separate First Information
Reports lodged with the police on the day of the occurrence is
without any merit.

C 18. The Investigating Officer has clearly stated in his
deposition that he had recovered three tickets from the
possession of the deceased. From the said deposition, it is
thus clearly established that on the fateful day i.e. 29.07.1977
not only the deceased was travelling by the aforesaid train but
the two other persons namely, P.W. 1, Prithvi Pal Singh, the
D informant and P.W. 3 Sri Jagannath Dubey, also travelled with
him in the same train and all the three got down at the Rooma
Halt Railway Station where the incident had taken place.
Therefore, there is no reasonable ground to doubt that P.W. 1,
the informant and P.W. 3 are not the natural witnesses. They
E had in fact accompanied the deceased and also observed and
saw the manner in which the entire incident had happened and
taken place. P.W. 4, Iqbal Singh was also a fellow traveller in
the same train who had also got down at the Rooma Halt
Station. He has clearly stated that he had seen the occurrence.
F There is nothing on record to cast a doubt as to the presence
of P.W. 4 also at the time and at the place of occurrence. The
evidence adduced by P.W. 1 and P.W. 3 cle~rly corroborate
each other with respect to the fact that both the present
appellants had accosted the deceased with pistols in their
G hands and both of them had dragged the deceased from the
platform to the place near the Peepal tree where he was shot
dead by the other two accused persons.

19. The evidence adduced thus clearly establishes that all
the four accused persons carried weapons with them and at
H
PATAI @KRISHNA KUMAR v. STATE OF U.P. 1147
[DR. MUKUNDAKAM SHARMA, J.]

the exhortation of Sri Ganesh Singh that it is the opportune time A
to eliminate the deceased, accused persons namely Brij
Kishore and Patai dragged the deceased from ''.he platform to
the Peepal tree, where the deceased was shot dead by the
other two accused persons namely, Sri Shrawan Kumar and
Sri Ganesh Singh. A pre-concerted mind and a common B
intention to commit the offence are apparent on the face of the
record. Section 33, IPC defines the expression "act" in the
following words:

"The word "act" denotes as well a series of acts as a single C
act."

Section 34, on the other hand, lays down that when a criminal
act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the
same manner as if it were done by him alone. D

20. In our considered opinion, here is a case where the
appellants have committed the act of accosting the deceased
with pistols and dragging him away from the platform to a place
. _n_ear the Peepal tree at the exhortation given by Sri Ganesh E
Singh. Therefore, it could be said that not only the two
appellants were present at the scene of offence but they actively
participated in the commission of the offence by doing acts in
furtherance of the common intention of killing the deceased.
Therefore, the contention of the counsel appearing for the
appellants stands rejected.
F

21. It was also submitted by one of the counsel that the
First Information Report submitted by P.W.-1 was actually
written by the Police Officer or at least at his dictation and the
same could not have been drawn up at the place of occurrence G
as alleged. The aforesaid submission is not supported by any
evidence on record.

22. On the other hand P.W. 1 has clearly stated in his
statement that he had drawn up the said first information report H
1148 SUPREME COURT REPORTS [2010] 3 S.C.R.

A at the place of occurrence in his own handwriting. The fact that
the said first information report is in a neat and clean
handwriting cannot always lead to the conclusion that the said
report was prepared by the police officer or at his dictation. If
the hand writing of the writer of the information is neat and clean
B and he could express himself clearly, no fault could be found
against such writing. In the present case, there is a clear
deposition of PW-1 that it was drawn by himself and in his own
hand writing and there is no evidence to impeach or doubt the
said statement of the witness. Consequently, the aforesaid
C submission is also found to be without any merit.

23. Considering the entire facts and circumstances of the
case, we are of the considered opinion that the prosecution has
been able to establish by leading cogent and reliable evidence,
the guilt of both the accused persons who are appellants before
D this Court, and therefore their conviction and sentence under
Section 302 read with Section 34 IPC cannot be said to be in
any manner illegal or unjustified.

24. The appeals, therefore, have no merit and are
E dismissed. The records may be transmitted immediately.

D.G. Appeals dismissed.