SURAJIT SARKARversusSTATE OF WEST BENGAL

                        [2012] 13 S.C.R. 634


A                        SURAJIT SARKAR
                                  v.
                    STATE OF WEST BENGAL
                (Criminal Appeal No. 2026 of 2009)
                        DECEMBER 4, 2012
B
      [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

        Penal Code, 1860 - s. 304 (Part II) - 6 accused including
  appellant-accused caused death of one person - Two eye-
C witnesses to the incident - Trial court convicted the appellant-
  accused u/s. 302 /PC while acquitted the rest of the accused
  - Order confirmed by High Court - On appeal, held: The
  appellant-accused is liable to be held guilty of causing death
  in view of the evidence of the eye-witness PW-7 - The
D appellant-accused cannot be absolved of his involvement in
  the offence only because other co-accused were acquitted -
  However, in view of the nature of injuries on the deceased,
  the appellant-accused cannot be held guilty of murder - He
  is liable to be held guilty of offence of culpable homicide not
E amounting to murder and liable to punished uls. 304 (Part II).
         Code of Criminal Procedure, 1973 - s. 154 - FIR - A
    cryptic message given on telephone ·cannot be treated as an
    FIR because in such case procedural formalities while
    recording the FIR, cannot be given effect to.
F      Appellant-accused was prosecuted alongwith 5
  other accused for havin'g caused death of one person.
  As per the prosecution, there were two eye-witnesses
  (PWs 7 and 8) to the incident. PW3 had telephonically
  informed the police about the incident. Thereafter PW-1
G (the son of the deceased) lodged FIR. Trial court acquitted
  the other accused persons while convicted the appellant-
  accused u/s. 302 IPC. Trial court rejected the plea that the
  intimation given by PW3 should be treated as the FIR and
  not the complaint lodged by PW-1, holding that
H                             634
  SURAJIT SARKAR v. STATE OF WEST BENGAL             635

telephonic message given by an unknown person with A
regard to death of another unknown person could not be
treated as FIR. High Court confirmed the conviction of the
appellant-accused upholding the finding of the trial court.
     In the appeal before this Court, the questions for
consideration were whether a cryptic telephonic B
intimation given to police could be treated as FIR u/s. 154
Cr.P.C.; whether the testimony of the eye-witnesses could
be accepted for upholding the conviction of the appellant-
accused; whether the conviction of the appellant-accused
was justified even though the co-accused were acquitted C
and whether the appellant-accused was guilty of murder.
    Disposing of the appeal, the Court
     HELD: 1. It cannot be held that the telephonic call
should be treated as the FIR and not the complaint made o
by PW-1. Section 154 Cr.P .C. makes it clear that even
though oral information given by an officer-in-charge of
a police station can be treated as an FIR, yet some
procedural formalities are required to be completed. They
include reducing the information in writing and reading E
it over to the informant and obtaining his or her signature
on the transcribed information. In the case of a telephonic
conversation received from an unknown person, the
question of reading-over that information to the
anonymous informant does not arise nor does the F
appending of a signature to the information, as recorded,
arise. A cryptic message given on telephone cannot be
treated as an FIR merely because that information was
first in point of time and had been recorded in the Daily
Diary of the police station. The object and the purpose
of a telephonic message is not to lodge a first information G
report but a request to the officer-in-charge of the police
station to reach the place of occurrence. [Paras 35, 37,
38 and 40) [648-G-H; 649-D-E; 650-B-D]
    Ramsingh Bavaji Jadeja v. State of Gujarat (1994) 2 H
    636      . SUPREME COURT REPORTS            [2012) 13 S.C.R.


A SCC 685 : 1994 (2) SCR 239; Tapinder Singh v. State of
  Punjab (1970) 2 SCC 113:1971(1) SCR 599; Soma Bhai v.
  State of Gujarat (1975) 4 SCC 257: 1997 (3) SCR 1071;
  Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC
  220: 1974 (1) SCR 102; Mundrika Mahto v. State of Bihar
B (2002) 9 SCC 183: 2002 (3) SCR 575; State of Andhra
  Pradesh v. V. V.Panduranga Rao(2009) 15 SCC 211: 2009
  (7) SCR 421; Sidhartha Vashisht v. State (NCT of Delhi)
  (201 O) 6 sec 1: 201 o (4) SCR 103 - relied on.
        2. The conduct of PW-7 was quite unnatural and a
C little odd. This witness was a neighbour of the victim and
  it appears from his testimony that after he witnessed the
  attack on the deceased he did not bother to inform the
  victim's family, or anybody else and simply went home.
  This witness further deposed that he came to know of the
D death of the deceased only the next morning. The
  investigating officer examined PW-7 only after a gap of
  more than a month and a half of the incident. PW-8 did
  not mention the presence of PW-7 at the place of
  occurrence. This possibility gave rise to another doubt
E that perhaps PW-7 was not present at the place of
  occurrence. [Paras 43 and 44) [650-F-H; 651-A-B]
         Ganesh Bhavan Patel v. State of Maharashtra (1978) 4
    SCC 371: 1979 (2) SCR 94; Banti v. State of M. P. (2004) 1
    SCC 414: 2003 (5) Suppl. SCR 119; Ranbir v. State of
F   Punjab (1973) 2 SCC 444: 1974 (1) SCR 102; Bodhraj v.
    State of J&K (2002) 8 SCC 45: 2002 (2) Suppl. SCR 67 -
    relied on.
          Shyamal Ghosh v. State of WB. (2012) 7 SCC 646 -
    distinguished.
G
          State of U.P. v. Satish (2005) 3 SCC 114: 2005 (2) SCR
    1132 - referred to.
       3. It cannot be laid down as a broad proposition of
    law that in no case can a defective or shoddy
H
  SURAJIT SARKAR v. STATE OF WEST BENGAL                  637


lead to an acquittal. It would eventually depend on the          A
defects pointed out. If the investigation results in the real
culprit of an offence not being identified, then acquittal of
the accused must follow. It would not be permissible to
ignore the defects in an investigation and hold an innocent
person guilty of an offence which he has not committed.          B
The investigation must be precise and focused and must
lead to the inevitable conclusion that the accused has
committed the crime. If the investigating officer leaves
glaring loopholes in the investigation, the defence would
be fully entitled to exploit the lacunae. In such a situation,   c
it would not be correct for the prosecution to argue that
the Court should gloss over the gaps and find the accused
person guilty. If this were permitted in law, the prosecution
could have an innocent person put behind bars on
trumped up charges. It is clear from the record that the         0
investigation has left unanswered several questions
regarding PW-7. Under the circumstances, it cannot be
accepted that PW-7 was present at the place and at the
time when the deceased was attacked. [Paras 54 and 55]
[654-D-H; 655-A]
                                                                 E
     4. It is true that' there is some discrepancy or some
gap in the whereabouts of PW-8 between the time of the
attack and his returning home but that by itself is not
enough to discredit this witness, more so when he was
not asked any question on his whereabouts. Also, this            F
discrepancy does not destroy the substratum of the case
of the prosecution and therefore there is no reason to
throw it out on this ground. PW-8 successfully withstood
his cross-examination and he was a credible witness who
ought to be believed when he says that he was at the             G
place of occurrence and that he saw his father being
attacked by the appellant-accused. [Paras 60, 61 and 62)
[656-B-E]
   5. Delay per se may not be a clinching factor but
when there is a whole range of facts that need to be             H
    638    SUPREME COURT REPORTS             [2012] 13 S.C.R.


A explained, but cannot, then the cumulative effect of all
  the facts could have an impact on the case of the
  prosecution. [Para 50) [653-A-B]
      Visveswaran v. State (2003) 6 SCC 73 2003 (3) SCR
  978; C.Muniappan v. State of Tamil Nadu (2010) 9 SCC
B 567: 2010 (10)SCR 262; Sheo Shankar Singh v. State of
  Jharkhand (2011) 3SCC 654: 2011 (4) SCR 312 - referred
  to.
       6. The appellant-accused cannot be absolved of his
C involvement in the death of the deceased merely because
  the other accused persons were either not identified by
  the eye-witnesses or had no role to play in the attack on
  the deceased. There is the cogent and reliable evidence
  of PW-8 to hold that the appellant-accused attacked on
  the deceased which ultimately resulted in his death. [Para
0 68) [657-G]
        Syed Ahmed v. State of Kamataka (2012) 8 SCC 527:
    2012 (7) SCR 887 - relied on.             ·
       Gurcharan Singh v. State of Punjab AIR 1956 SC 460;
E Koma/ v. State of U.P. (2002) 7 SCC 82; Gangadhar Behera
  v. State of Orissa (2002) 8 SCC 381: 2002 (3) Suppl. SCR
  183; Prathap v. State of Kera/a (2010) 12 SCC 79: 2010 (10)
  SCR 241- relied on.
F       7. Given the nature of injuries, it cannot be accepted
  that the appellant-accused intended to cause the death
  of the deceased or that the injuries were so imminently
  dangerous that they would, in all probability, cause death.
  The murder of the deceased would, therefore, be ruled
  out. Nevertheless, the injuries were quite serious and
G inflicted on the head of the deceased with an iron rod, as
  stated by PW-8. The appellant-accused can be credited
  with the knowledge that if a person is hit with an iron rod
  on the head, then the act is likely to cause the death of
  the victim. That being so, it would be more appropriate
H to hold him guilty of an offence of culpable homicide not
  SURAJIT SARKAR v. STATE OF WEST BENGAL            639

amounting to murder. Since he has been attributed with A
the knowledge of his actions, he should be punished
under the second part of Section 304 IPC. The conviction
of the appellant-accused is set aside for the offence of the
murder and is held guilty of an offence punishable under
the second part of Section 304 IPC. He is sentenced to B
undergo rigorous imprisonment for a period of 10 years.
The fine and default sentence awarded by the trial court
are maintained. [Paras 71 and 72) (658-C-G]
                   Case Law Reference:
    1994 (2) SCR 239         Relied on        Para 40
                                                          c
    1971 (1) SCR 599         Relied on        Para 40
    1997 (3) SCR 1071        Relied on        Para 40
    1974 (1) SCR102          Relied on        Para 40     D
    2002 (3) SCR 575         Relied on        Para 41
    2009 (7) SCR 421         Relied on        Para 41
    2010 (4 ) SCR103         Relied on        Para 41
    1979 (2) SCR 94          Relied on        Para 45     E

    2003 (5) Suppl. SCR 119 Relied on         Para 47
    1974 (1) SCR 102         Relied on        Para 48
    2002 (2) Suppl. SCR 67 Relied on          Para 48
                                                          F
    2005 (2) SCR 1132        Referred to      Para 49
    (2012) 1 sec 646         Distinguished    Para 50
    2003 (3) SCR 978         Referred to      Para 52
    2010 (10) SCR 262        Referred to      Para 52     G
    2011 (4) SCR 312         Referred to      Para
                                                 , 52
    2012 (7) SCR 887         Relied on        Para 61
   AIR 1956 SC 460           Relied on        Para 64
                                                          H
    640       SUPREME COURT REPORTS              [2012] 13 S.C.R.


A         (2002) 1   sec 82         Relied on           Para 65
          2002 (3) Suppl. SCR 183 Relied on             Para 66
          2010 (10) SCR 241          Relied on          Para 67
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
B   No. 2026 of 2009.
         From the Judgment and Order dated 24.04.2009 of the
    Division Bench of the High Court of Calcutta in C.R.A. No. 17
    of 1998.
C       Pradip Ghosh, Rauf Rahim, Yadunandan Bansal for the
    appellant.
        Chanchal Kr. Ganguly Abhijit Sengupta, Sampa Sengupta
    Ray, Faisal M, B.P. Yadav for the Respondent.
          The Judgment of the Court was delivered by
D
          MADAN B. LOKUR, J. 1. The principal issues before us
    are whether a cryptic telephonic intimation given to the police
    can be described as a First Information Report for the purposes
    of Section 154 of the Criminal Procedure; whether the
    testimony of PW-7 Sanatan Sarkar and PW-8 Achintya Sarkar
E   can be accepted for upholding the conviction of Surajit Sarkar
    (the appellant); whether Surajit Sarkar can be convicted of
    murder even though his co-accused have been acquitted and
    finally whether Surajit Sarkar did commit the murder of Gour
    Chandra Sarkar.
F
         2. In our view, the first issue must be answered in the
    negative. We also hold that the testimony of PW-7 Sanatan
    Sarkar cannot be accepted, but we do accept the testimony of
    PW-8 Achintya Sarkar. We find no reason to hold that merely
    because those accused with Surajit Sarkar have been
G   acquitted, he too must be acquitted of the charge against him.
    However, we find, on the testimony of PW-8 Achintya Sarkar,
    that Surajit Sarkar is liable to be punished not for the murder
    of Gour Chandra Sarkar but for culpable homicide not
    amounting to murder punishable under Section 304 of the
H   Indian Penal Code.
  SURAJIT SARKAR v. STATE OF WEST BENGAL                   641
            [MADAN B. LOKUR, J.]
The facts:                                                        A
     3. On 21st March 1992, Susanta Sarkar's father Gour
Chandra Sarkar had gone on his cycle to the Gobindapur
bazaar in the evening. At about 9.00 pm while he (Susanta
Sarkar) was in his house, he heard a cry from his mother. On
inquiring from her, he learnt that Bishnu Sarkar informed her that B
Gour Chandra Sarkar had been murdered at about 8/8.30 pm
apparently in front of Bimal Poddar's house.
      4. Susanta Sarkar immediately rushed to the spot and
found his father lying senseless on the ground with bloody        c
injuries. On raising a noise, some villagers gathered there and
advised him to lodge a complaint. Thereafter, he went to his
uncle's house (Bishnu Sarkar's father) and wrote out a
complaint.
     5. Later, he came to know at about 10/10.30 pm that the D
police had reached the place of occurrence. Thereupon, he too
went to the place of occurrence and met the police. In his
presence, the police seized some items, including his father's
wrist watch and cycle. After the seizure proceedings were over
at about 11.55 pm he handed over to the police his complaint E
addressed to the officer-in-charge Police Station Santipur,
District Nadia.
     6. In his complaint, Susanta Sarkar stated the broad facts
mentioned above, namely, that his father had gone to the
Gobindapur bazaar in the evening; that he came to know his        F
father had been murdered at about 8.30/9.00 pm in front of
Bimal Poddar's house; that he went to the place of occurrence
and found his father lying on the road with a bleeding injury.
      7. He also stated in his complaint that there was a dispute
between the members of his family and that of Gour Sarkar and G
some people engaged by him. On 8th March 1992 there was
a scuffle between the two parties and a case was pending in
that regard. His brother Nimai Sarkar was in jail as a result of
that incident. Gour Sarkar's party had also been in jail but had
been released a day or two earlier. Susanta Sarkar stated in H
    642      SUPREME COURT REPORTS                [2012) 13 S.C.R.


A   his complaint that he firmly believed that six members of Gour
    Sarkar's party murdered his father Gour Chandra Sarkar due
    to the grudge that they bore.
         8. Based on the complaint given by Susanta Sarkar, a
    First Information Report (FIR} was registered in Police Station
B   Santipur, District Nadia on 22nd March 1992 at about 00.45
    am and formal investigations commenced into offences
    punishable under Section 302 read with Section 34 and Section
    120-B of the Indian Penal Code (for short the IPC} against the
    six accused persons. On conclusion of the investigations, a
C   charge sheet was filed against them. Charges were framed
    against the accused persons but they pleaded not guilty and
    claimed trial.
        9. Although the prosecution produced fourteen witnesses,
    we are concerned with the evidence of only some of them.
D         10. PW-1 Susanta Sarkar confirmed what he had stated
    in his complaint. He added that his younger brother Achintya
    Sarkar (aged about 12/13 years when the incident took place}
    returned home that night at about 2/2.30 am and informed the
    witness that Surajit Sarkar, Adhir Sarkar and Sukumar Sarkar
E   had killed Gour Chandra Sarkar. When Achintya Sarkar
    opposed them, Bara Gopal Sarkar, Jamai Gopal Sarkar and
    Bhebesh Sarkar chased him and so he fled away. (These were
    the same persons named by Susanta Sarkar in his complaint}.
    In his cross-examination, Susanta Sarkar stated that he did not
F   ask Achintya Sarkar where he was till 2.30 am.
          11. PW-2 Bishnu Sarkar stated that he had gone to the
    Gobindapur market that evening. When he was returning home,
    he saw 5/6 persons near the primary school. He could identify
    Surajit Sarkar in the torchlight. When he proceeded further, he
G   saw Gour Chandra Sarkar lying senseless on the road with
    injuries on his chest, head and hand etc. He immediately went
    and narrated what he saw to Gour Chandra Sarkar's wife.
    Although this witness turned hostile, he stated that he was
    present when the inquest and seizure of articles took place later
H   that night.
  SURAJIT SARKAR v. STATE OF WEST BENGAL                  643
            [MADAN B. LOKUR, J.]
     12. PW-3 Parash Biswas was a panchayat member of A
Gobindapur village. He was in a meeting when he learnt of the
murder of Gour Chandra Sarkar. He went to the place of
occurrence and saw the dead body. Thereafter, he
telephonically informed the police station of the incident but did
nothing further. From the deposition of PW-11 Krishnapada B
Mazumdar of Police Station Santipur, it appears that the
telephone call was made around 9.35 pm when a General Diary
entry was made by him to the effect that an unknown person
gave information about the murder of an unknown person at
Arpara, Police Station Santipur, District Nadia.                c
      13. PW-7 Sanatan Sarkar was a neighbor of Gour Chandra
Sarkar and an eyewitness to his murder. He testified that he
was returning from Gobindapur to Arpara with Achintya Sarkar
and Gour Chandra Sarkar at about 8.30 pm on 21st March
1992. On the way, near a primary school, 5/6 persons D
surrounded Gour Chandra Sarkar. He saw Surajit Sarkar from
the light of his torch assaulting Gour Chandra Sarkar with a rod.
He also identified Adhir Sarkar and Sukumar Sarkar at the
place of occurrence and said that they chased him (Gour
Chandra Sarkar). He did not say that Adhir Sarkar and E
Sukumar Sarkar assaulted Gour Chandra Sarkar and he did
not identify anybody else at the place of occurrence. The witness
said that he escaped from the place of occurrence and went
home. He came to know the next morning that Gour Chandra
Sarkar had died. It transpires from the evidence of the F
investigating officer PW-14 Pradyut Banerjee that even though
Sanatan Sarkar was an eyewitness, he was examined only on
10th May 1992 about a month and an half after the incident.
     14. PW-8 Achintya Sarkar, son of Gour Chandra Sarkar
was also an eyewitness. He was about 12/13 years old when G
the incident took place. In his testimony he stated that he, his
father and Sanatan Sarkar were returning to their village from
Gobindapur at about 8/8.30 pm on 21st March 1992. When they
were near a school, he saw from his torchlight that Surajit
Sarkar was assaulting his father with a rod. Then Sukumar H
    644       SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A   Sarkar followed by Adhir Sarkar assaulted his father with a rod.
    He tried to go to his father but was chased away by Gopal
    Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar. He was
    afraid that they might kill him. He stated that he returned home
    that night at about 2.00 a.m. When the police came to his house
B   thereafter, he narrated the incident to them.
         15. PW-9 Dr. Partha Sarathi Saha confirmed the injuries
    on Gour Chandra Sarkar and stated that a hard, blunt weapon
    could have caused them. The injuries were:
C         (1)1%" cut mark over the right front parietal region.
          (2) %"cut mark over the back of right parietal region.
          16. There were some abrasion marks over the right ear
    and right knee. He also found that the right parietal bone was
    fractured. The membrane and brain matter were ruptured. There
D   was a fracture of the right 6th & 7th ribs and a fracture of the
    lower end of right radius and dislocation of the right elbow joint.
    In his cross examination this witness stated that injury (1) and
    (2) above may be caused by contact with a hard and blunt
    weapon and even by a fall.
E
         17. PW-14 Pradyut Banerjee the investigating officer
    confirmed the events as investigated by him. He also confirmed
    the seizures made and generally supported the case of the
    prosecution. In his cross-examination, he stated that he
F   examined Achintya Sarkar at his residence at about 2.10 am
    on 22nd March 1992. At that time, Achintya Sarkar did not say
    that he was chased away by Gopal Sarkar, Jamai Gopal
    Sarkar and Bhebesh Sarkar. He had stated that Surajit Sarkar
    assaulted his father.
G   Decision of the Trial Court:
        18. The principal contention of the defence before the Trial
    Court was that the telephonic intimation given by PW-3 Parash
    Biswas must be treated as the FIR for the purposes of Section
    154 of the Criminal Procedure Code (for short the Cr.P.C.).
H   Consequently, the complaint lodged by PW-1 Susanta Sarkar
   SURAJIT SARKAR v. STATE OF WEST BENGAL                     645
             [MADAN B. LOKUR, J.]
would not be the FIR and the contents thereof would be hit by        A
Section 162 of the Cr.P.C.
     19. The Trial Judge rejected this contention holding that the
ingredients of Section 154 of the Cr.P.C. were not made out
and that the telephonic message given by an unknown person
with regard to the death of another unknown person could not         B
be treated as an FIR. In arriving at this conclusion the Trial
Judge relied on Ramsinh Bavaji Jadeja v. State of Gujarat,
(1994) 2 sec 685.
     20. On the merits of the prosecution case, the Trial Court      C
was of the view that even though some of the witnesses were
interested witnesses and had some enmity with the accused
persons, their evidence could not be thrown out only for this
reason. It was held that there was no dispute about the time
and place of the incident. There was also no dispute that Gour       D
Chandra Sarkar had met a homicidal death. The only question
that remained under these circumstances was who had killed
Gour Chandra Sarkar.
     21. The Trial Judge held that there was insufficient
evidence to implicate Bara Gopal Sarkar, Jamai Gopal Sarkar          E
and Bhebesh Sarkar with the incident. They were not identified
by PW-7 Sanatan Sarkar and even according to the testimony
of PW-8 Achintya Sarkar they had not dealt any blows on Gour
Chandra Sarkar and had only chased him away from the scene
of the crime. Accordingly, the Trial Judge acquitted Bara Gopal      F
Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar.
     22. With regard to two other accused persons, namely,
Sukumar Sarkar and Adhir Sarkar, the Trial Court held that even
though PW-8 Achintya Sarkar had stated in his evidence that
they had dealt blows on Gour Chandra Sarkar yet, since during        G
the investigations, PW-8 Achintya Sarkar had informed the
investigating officer that he saw only Surajit Sarkar giving blows
to Gour Chandra Sarkar, the Trial Judge gave them the benefit
of doubt and accordingly acquitted them.
    23. The Trial Judge was of the view that there was sufficient    H
    646      SUPREME COURT REPORTS              [2012] 13 S.C.R.


A   evidence that Surajit Sarkar had assaulted Gour Chandra
    Sarkar with an iron rod and had caused severe injuries on his
    head. It was held that the prosecution had successfully proved
    beyond all reasonable doubt that Surajit Sarkar had murdered
    Gour Chandra Sarkar. Accordingly, he was held punishable for
B   the offence of murder and sentenced to life imprisonment.
    Decision of the High Court:
         24. The State did not appeal against the acquittal of the
    five accused persons. However, Surajit Sarkar filed C.R.A. No.
C   17 of 1998 which was heard by the Calcutta High Court. By its
    judgment and order dated 24th April 2009, the High Court
    upheld the conviction of Surajit Sarkar and the sentence
    awarded to him.
          25. Before the High Court, it was submitted that the
o complaint made by PW-1 Susanta Sarkar could not be treated
    as an FIR. This contention was rejected by the High Court
    holding that the telephonic message received from an unknown
    person in respect of the murder of another unknown person
    was cryptic and anonymous and the ingredients of Section 154
E   of the Cr.P.C. were not made out. As such, it could not be
    treated as an FIR. The High Court relied on Tapinder Singh v.
    State of Punjab, (1970) 2 SCC 113, Soma Bhai v. State of
    Gujarat, (1975) 4 SCC 257 and Ramsinh Bavaji Jadeja.
         26. The second contention before the High Court was that
F   the prosecution witnesses were interested witnesses and
    therefore their evidence was not credible. The High Court
    considered this contention and rejected it on the ground that
    there was no contradiction in the statements of the witnesses.
        27. The next contention before the High Court was that
G there was an infirmity in the FIR since important facts affecting
  the probability of the case had been left out. The High Court
  rejected this contention and held that an FIR is not an
  encyclopedia of the events said to have taken place. The FIR
  only results in setting the investigative process in motion and
H in this case the investigation was carried out satisfactorily. The
   SURAJIT SARKAR v. STATE OF WEST BENGAL                   647
             [MADAN B. LOKUR, J.]

failure of the complainant to mention from whom he got the A
information regarding the murder of Gour Chandra Sarkar was
not material.
     28. It was argued before the High Court that the
investigation was shoddy inasmuch as the investigating officer B
did not seize the torches from which the eyewitnesses had seen
the crime. The High Court held that this could not be treated
as an omission to discredit the witnesses. For this purpose,
reliance was placed on Balo Jadav v. State of Bihar, (1997) 5
sec 360.
                                                                  c
      29. Continuing with the argument of a shoddy investigation,
it was contended that there was considerable delay in the
examination of an eyewitness (PW-7 Sanatan Sarkar). The
High Court held that since no question was asked of the
investigating officer regarding the delay in examination of the
                                                                   0
witness, the investigation cannot be faulted on this ground. It
was held that if asked, the investigating officer could have given
an explanation which might have been acceptable. Reliance in
this regard was placed on Ranbir and Ors. v. State of Punjab,
(1973) 2 SCC 444 and Bodhraj v. State of J & K, (2002) 8 E
sec 45.
     30. The last contention urged before the High Court was
that since the co-accused had been acquitted after having been
given the benefit of doubt, it would not be correct to hold Surajit
Sarkar guilty of the offence of murder. This contention was also F
rejected in view of Koma/ v. State of U.P., (2002) 7 SCC 82
and Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381.
Contentions:
    31. Before us, it was contended that the telephonic
message received by the Police Station at Santipur and which G
was noted in the General Diary should be treated as the FIR
and not the complaint made by PW-1 Susanta Sarkar.
    32. The second contention was that the presence of PW-
7 Sanatan Sarkar and indeed of PW-8 Achintya Sarkar at the H
    648      SUPREME COURT REPORTS                  [2012] 13 S.C.R.


A place of occurrence was doubtful. In this context, it was pointed
    out that PW-8 Achintya Sarkar did not mention the presence
    of PW-7 Sanatan Sarkar at the place of occurrence. As far as
    PW-8 Achintya Sarkar is concerned, he was not traceable till
    2.00 am the next day which by itself casts a doubt on his
B   whereabouts. Moreover, this witness stated that he returned
    home at 2.00 am on 22nd March 1992 but in his cross-
    examination he stated that after he fled from the place of
    occurrence he returned to the same place and saw his father
    lying dead with bloody injuries. In view of this contradiction, this
c   witness could not be believed.
           33. The third contention urged was that the prosecution
    case looks a little doubtful inasmuch as PW-8 Achintya Sarkar,
    a boy of 12/13 years did not reach home on the fateful evening
    till 2.00 am the next day and yet there was no complaint by
D   anybody in the family about the missing child. This was said to
    be a little odd, and particularly since his father had been
    murdered, his family ought to have been a little worried about
    his safety and ought to have made a complaint to the police in
    this regard. It was submitted that this conduct of Gour Chandra
E   Sarkar's family was inexplicable.
        34. The final contention urged was that if five persons were
    given the benefit of doubt and found not guilty of the murder of
    Gour Chandra Sarkar, there was no reasonable basis for
    coming to the conclusion that Surajit Sarkar alone had
F   committed the murder of Gour Chandra Sarkar.
    Discussion:
          (1) Whether a telephonic intimation is an FIR:
         35. As far the first contention is concerned that the.
G   telephonic call should be treated as the FIR and not the
    complaint made by PW-1 Susanta Sarkar, we find no merit in
    the submission.
        36. Section 154 (1) of the Cr.P.C. which is relevant for our
H   purpose reads as follows :-
   SURAJIT SARKAR v. STATE OF WEST BENGAL                    649
             [MADAN B. LOKUR, J.]
     "154. Information in cognizable cases.                         A
      (1)   Every information relating to the commission of a
            cognizable offence, if given orally to an officer in
            charge of a police station, shall be reduced to
            writing by him or under his direction, and be read
            over to the informant; and every such information,      B
            whether given in writing or reduced to writing as
            aforesaid, shall be signed by the person· giving it,
            and the substance thereof shall be entered in a
            book to be kept by such officer in such form as the
            State Government may prescribe in this behalf.          C
     37. A bare reading of this section makes it clear that even
though oral information given by an officer in charge of a police
station can be treated as an FIR, yet some procedural
formalities are required to be completed. They include reducing
the information in writing and reading it over to the informant     D
and obtaining his or her signature on the transcribed
information.
     38. In the case of a telephonic conversation received from
an unknown person, the question of reading over that                E
information to the anonymous informant does not arise nor does
the appending of a signature to the information, as recorded,
arise.
      39. However, we are not going into any technicalities on
the subject, keeping in mind technological advances made in         F
communication systems. All we need say is that it is now well
settled by a series of decisions rendered by this Court that a
cryptic telephonic information cannot be treated as an FIR. In
this case, the telephonic information is rather cryptic and was
recorded in the General Diary as follows:                           G
    "Today in the marginally noted time I received an
    information over Telephone from an unknown person
    Gobindapur, P.S. Santipur, Nadia that today (21.03.1992)
    night one unknown person was murdered at Arpara, P.S.
    Santipur, Nadia.                                                H
    650      SUPREME COURT REPORTS              [2012) 13 S.C.R.


A         Accordingly I noted the fact in G.D., and informed the
          matter to O.C. Santipur P.S. (N).
                                                              Sd/-
                                              K.P. Majumdar, S.I."
B       40. In Ramsing Bavaji Jadeja, this Court relied on Tapinder
    Singh and Soma Bhai and Dhananjoy Chatterjee v. State of
    West Bengal, (1994) 2 SCC 220 to hold that a cryptic
  message given on telephone cannot be treated as an FIR
  merely because that information was first in point of time and
C had been recorded in the Daily Diary of the police station. It
  was also held that the object and purpose of a telephonic
  message is not to lodge a first information report but a request
  to the officer in charge of the police station to reach the place
  of occurrence.
D        41. This view was reiterated in Mundrika Mahto v. State
    of Bihar, (2002) 9 SCC 183, State of Andhra Pradesh v. V. V.
    Panduranga Rao, (2009) 15 SCC 211 and Sidhartha Vashisht
    v. State (NCT of Delhi), (2010) 6 sec 1. We see no reason
  to take a view different from the one consistently taken by this
E Court in all these cases.
        42. We may only add that it is a matter of regret that
    despite the law on the subject being well-settled, such an
    argument is raised once again.
F         (2) Presence of PW-7 at the place of occurrence:
         43. The investigations into the crime do leave much to be
  desired as pointed out by learned counsel for Surajit Sarkar.
  The conduct of PW-7 Sanatan Sarkar was quite unnatural and
  a little odd and ought to have been looked into by the police.
G This witness was a neighbour of the victim and it appears from
  his testimony that after he witnessed the attack on Gour
  Chandra Sarkar, he did not bother to inform the victim's family,
  or anybody else and simply went home. This witness further
  deposed that he came to know of the death of Gour Chandra
H Sarkar only the next morning.
   SURAJIT SARKAR v. STATE OF WEST BENGAL                   651
             [MADAN B. LOKUR, J.]
     44. We also find it quite strange that the investigating      A
officer examined PW-7 Sanatan Sarkar only on 10th May 1992
that is after a gap of more than a month and a half of the
incident. One charitable explanation for this delay is that PW-8
Achintya Sarkar did not mention the presence of PW-7 Sanatan
Sarkar at the place of occurrence. This possibility gave rise to   B
another submission by learned counsel for the Surajit Sarkar
that perhaps PW-7 Sanatan Sarkar was not present at the
place of occurrence.
     45. Learned counsel for Surajit Sarkar relied upon Ganesh
Bhavan Patel v. State of Maharashtra, (1978) 4 SCC 371 to          C
contend that the delayed examination of PW-7 Sanatan Sarkar
throws some doubt on his presence at the place of occurrence.
In that case, there was a delay of a few hours by the
investigating officer in examining the eyewitnesses and it was
observed:                                                          D
     "Delay of a few hours, simpliciter, in recording the
     statements of eyewitnesses may not, by itself, amount to
     a serious infirmity in the prosecution case. But it may
     assume such a character if there are concomitant
     circumstances to suggest that the investigator was            E
     deliberately marking time with a view to decide about the
     shape to be given to the case and the eyewitnesses to be
     introduced."
     46. We are concerned with a case where there is a delay
                                                                   F
of a month and a half in examining an eyewitness. Perhaps
what can charitably be said in defence of the investigating
officer in the present case, unlike in Ganesh Bhavan Patel, is
that it was not mentioned to him that PW-7 Sanatan Sarkar
was an eyewitness. Even so. it reflects very poorly on the         G
investigations.
     47. Learned counsel for the State relied upon a passage
from Banti v. State of M.P., (2004) 1 SCC 414. This passage
reiterates a principle earlier laid down that the investigating
officer must be specifically asked to furnish an explanation for   H
    652       SUPREME COURT REPORTS                [2012] 13 S.C.R.


A the delay in examination of a witness. The passage is as
  follows:
          "As regards the delayed examination of certain witnesses,
          this Court in several decisions has held that unless the
          investigating officer is categorically asked as to why there
B         was delay in examination of the witnesses the defence
          cannot gain any advantage therefrom. It cannot be laid
          down as a rule of universal application that if there is any
          delay in examination of a particular witness, the
          prosecution version becomes suspect. It would depend
c         upon several factors. If the explanation offered for the
          delayed examination is plausible and acceptable and the
          court accepts the same as plausible, there is no reason
          to interfere with the conclusion (See Ranbir v. State of
          Punjab [(1973) 2 SCC 444] and Bodhraj v. State of J&K
D         [(2002) a sec 45])."
       48. In Banti the delay in examining the eyewitnesses was
  two days, while in Ranbir Singh the delay was apparently of
  four days and in Bodhraj it was apparently about one week. In
  none of these decisions was the investigating officer asked to
E give an explanation for the delay in examination of a witness.
       49. In State of U.P. v. Satish, (2005) 3 SCC 114 relied
  on by learned counsel for the State, the reason for the delay in
  examination of the witnesses is not quite clear. But, this Court
F reiterated the two principles earlier recognized, namely, that
  mere delay in examination of a witness does not make the
  prosecution version suspect and that the investigating officer
  must be asked the reason for the delay in examination of the
  witness. Ganesh Bhavan Patel was explained by observing
  that delay in examination of the witnesses was not the only
G determinative factor - in fact, there were several factors taken
  together along with the delayed examination of witnesses that
  provided the basis for acquittal.
       50. Finally, reference was made by learned counsel for the
H State to Shyamal Ghosh v. State of WB., (2012) 7 SCC 646
   SURAJIT SARKAR v. STATE OF WEST BENGAL                     653
             [MADAN B. LOKUR, J.]

to contend that the delayed examination of a witness will not        A
vitiate the prosecution case. We agree that delay per se may
not be a clinching factor but when there is a whole range of facts
that need to be explained but cannot, then the cumulative effect
of all the facts could have an impact on the case of the
prosecution.                                                         B
     51. If the evidence on record is looked at in perspective,
namely, that PW-7 Sanatan Sarkar an eyewitness to the
incident did not bother to inform anybody in the family of Gour
Chandra Sarkar about the assault on his neighbour; that this
eyewitness was examined by the investigating officer more than       C
a month and a half after the occurrence; that the presence of
this witness was not mentioned by PW-8 Achintya Sarkar also
an eyewitness to the incident, leads us to have some doubt
about the presence of PW-7 Sanatan Sarkar at the place of
occurrence.                                                          D
     52. Learned counsel for the State submitted while relying
on Visveswaran v. State, (2003) 6 SCC 73, C. Muniappan v.
State of Tamil Nadu, (2010) 9 SCC 567 and Sheo Shankar
Singh v. State of Jharkhand, (2011) 3 SCC 654 that a defective
investigation need not necessarily result in the acquittal of an     E
accused person.
    53. In Visveswaran all that this Court observed was that:
    "In defective investigation, the only requirement is of extra
    caution by courts while evaluating evidence. It would not        F
    be just to acquit the accused solely as a result of defective
    investigation. Any deficiency or irregularity in investigation
    need not necessarily lead to rejection of the case of
    prosecution when it is otherwise proved."
    Similarly, in Muniappan this Court held:                         G
    ''The law on this issue is well settled that the defect in the
    investigation by itself cannot be a ground for acquittal. If
    primacy is given to such designed or negligent
    investigations or to the omissions or lapses by perfunctory      H
    654       SUPREME COURT REPORTS                 [2012) 13 S.C.R.


A         investigation, the faith and confidence of the people in the
          criminal justice administration would be eroded. Where
          there has been negligence on the part of the investigating
          agency or omissions, etc. which resulted in defective
          investigation, there is a legal obligation on the part of the
B         court to examine the prosecution evidence dehors such
          lapses, carefully, to find out whether the said evidence is
          reliable or not and to what extent it is reliable and as to
          whether such lapses affected the object of finding out the
          truth."
C         Finally in Shea Shankar Singh it was held as follows:
          "Deficiencies in investigation by way of omissions and
          lapses on the part of investigating agency cannot in
          themselves justify a total rejection of the prosecution case."
o       54. We are not prepared to accept as a broad proposition
  of law that in no case can defective or shoddy investigations
  lead to an acquittal. It would eventually depend on the defects
  pointed out. If the investigation results in the real culprit of an
  offence not being identified, then acquittal of the accused must
E follow. It would not be permissible to ignore the defects in an
  investigation and hold an innocent person guilty of an offence
  which he has not committed. The investigation must be precise
  and focused and must lead to the inevitable conclusion that the
  accused has committed the crime. If the investigating officer
F leaves glaring loopholes in the investigation, the defence would
  be fully entitled to exploit the lacunae. In such a situation, it
  would not be correct for the prosecution to argue that the Court
  should gloss over the gaps and find the accused person guilty.
  If this were permitted in law, the prosecution could have an
  innocent person put behind bars on trumped up charges.
G Clearly, this is impermissible and this is not what this Court has
  said.
      55. It is clear from the record that the investigation has left
  unanswered several questions regarding PW-7 Sanatan Sarkar.
H Under the circumstances, it is difficult to accept that PW-7
  SURAJIT SARKAR v. STATE OF WEST BENGAL                      655
            [MADAN B. LOKUR, J.]
Sanatan Sarkar was present at the place and at the time when         A
Gour Chandra Sarkar was attacked.
     (3) Evidence of PW-8 Achintya Sarkar:
       56. We are now left only with the evidence of PW-8
Achintya Sarkar. In the case of this witness also the facts are
                                                                     8
a little odd in as much as when the crime took place he was
about 12/13 years old. When he was chased away by Gopal
Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar, he naturally
feared for his life and went into hiding. It is not clear what his
movements were thereafter.
                                                                     c
      57. In his deposition, PW-8 Achintya Sarkar stated that he
came back to the place of occurrence and saw the dead body
of his father. This could have been only around midnight on 21st
March 1992 after the inquest proceedings were over and the
seizure of some items at the place of occurrence was
concluded by the police. Assuming this to be so, it is not clear     D
where PW-8 Achintya Sarkar hid himself after that and why. In
any event, he came back home only at 2.00 am on 22nd March
1992 when he told his brother PW-1 Susanta Sarkar about the
incident and soon thereafter narrated the events to the
investigating officer.                                               E
     58. While the reaction of PW-8 Achintya Sarkar is
understandable, what is not understandable is the conduct of
his family. The members of his family seem to have not taken
any action to find out the whereabouts of PW-8 Achintya Sarkar
after they came to know about the murder of Gour Chandra             F
Sarkar. We would imagine that on coming to know of the
murder, the primary concern of the family would have been the
safety of PW-8 Achintya Sarkar. However, no efforts appear
to have been made to locate his whereabouts or to search for
him or even to inform the police about his disappearance.            G
     59. However, merely because PW-8 Achintya Sarkar and
his family acted a little strangely would not necessarily lead to
the conclusion that this witness should not be believed. There
is nothing on record to suggest that he was not at the place of
occurrence when his father Gour Chandra Sarkar was attacked.         H
    656       SUPREME COURT REPORTS                [2012] 13 S.C.R.


A   There is also nothing on record which could lead to any
    inference or conclusion that PW-8 Achintya Sarkar made up a
    story about the attack on his father by Surajit Sarkar.
       60. It is true that there is some discrepancy or some gap
  in the whereabouts of PW-8 Achintya Sarkar between the time
B of the attack and his returning home at 2.00 a.m. on 22nd
  March 1992 but that by itself is not enough to discredit this
  witness, more so when he was not asked any question on his
  whereabouts.
       61. Also, this discrepancy does not destroy the substratum
C of the case of the prosecution and therefore there is no reason
  to throw it out on this ground. What is a minor discrepancy has
  recently been dealt with in Syed Ahmed v. State of Kamataka,
  (2012) 8 SCC 527 {authored by one of us, Lokur, J.) and the
  view expressed therein need not be repeated.
D      62. We find that PW-8 Achintya Sarkar successfully
  withstood his cross-examination and we agree with the Trial
  Court and the High Court that he was a credible witness who
  ought to be believed when he says that he was at the place of
  occurrence and that he saw his father Gour Chandra Sarkar
E being attacked by the Surajit Sarkar.
          (4) Acquittal of co-accused:
      63. The final contention of learned counsel for Surajit
  Sarkar was that since five of the accused persons were given
F the benefit of doubt there is no reason why he should not be
  given the benefit of doubt.
        64. In Gurcharan Singh v. State of Punjab, AIR 1956 SC
    460 this Court held, in a case where some accused persons
    were acquitted and some others were convicted, as follows:
G         "The highest that can be or has been said on behalf of the
          appellants in this case is that two of the four accused have
          been acquitted, though the evidence against them, so far
          as the direct testimony went, was the same as against the
          appellants also; but it does not follow as a necessary
H         corollary that because the other two accused have been
   SURAJIT SARKAR v. STATE OF WEST BENGAL                    657
             [MADAN B. LOKUR, J.]

     acquitted by the High Court the appellants also must be        A
     similarly acquitted."
      65. Learned counsel for the State drew our attention to
Koma/ in which it was held that merely because some of the
accused persons have been acquitted by being given the
benefit of doubt does not necessarily mean that all the accused     B
persons must be given the benefit of doubt. It was observed
that:
     " .... the complicity of two accused persons who were
     armed with guns having been doubted by the High Court
     itself, they have already been acquitted which cannot in any   C
     manner affect the prosecution case so far as the appellants
     are concerned against whom the witnesses have
     consistently deposed and their evidence has been found
     to be credible."
    66. Similarly, in Gangadhar Behera reliance was placed          D
on Gurcharan Singh and it was held:
     "Merely because some of the accused persons have been
     acquitted, though evidence against all of them, so far as
     direct testimony went, was the same does not lead as a
                                                                    E
     necessary corollary that those who have been convicted
     must also be acquitted. It is always open to a court to
     differentiate the accused who had been acquitted from
     those who were convicted."
    67. Gangadhar Behera was cited with approval somewhat           F
recently in Prathap v. State of Kera/a, (2010) 12 sec 79.
     68. We agree that Surajit Sarkar cannot be absolved of
his involvement in the death of Gour Chandra Sarkar merely
because the other accused persons were either not identified
by the eyewitnesses or had no role to play in the attack on Gour    G
Chandra Sarkar. There is the cogent and reliable evidence of
PW-8 Achintya Sarkar to hold that Surajit Sarkar attacked Gour
Chandra Sarkar which ultimately resulted in his death. The
contention of learned counsel for Surajit Sarkar is rejected.
    69. We may mention that learned counsel for Surajit Sarkar      H
    658      SUPREME COURT REPORTS                [2012] 13 S.C.R.


A submitted that there was a delay in forwarding the FIR to the
  concerned Magistrate. Since no foundation has been laid for
  this contention nor was this contention urged either before the
  Trial Court or before the High Court we see no reason to
  entertain it at this stage.
B Is it a case of murder:
         70. What now remains to be considered is whether Surajit
    Sarkar intended to murder Gour Chandra Sarkar or is it a case
    of culpable homicide not amounting to murder?
C      71. Given the nature of injuries, it is difficult to accept the
  view that Surajit Sarkar intended to cause the death of Gour
  Chandra Sarkar or that the injuries were so imminently
  dangerous that they would, in all probability, cause death. The
  murder of Gour Chandra Sarkar would, therefore, be ruled out.
  Nevertheless, the injuries were quite serious and inflicted by
0 Surajit Sarkar on Gour Chandra Sarkar's head with an iron rod,
  as stated by PW-8 Achintya Sarkar. We can surely credit
  Su raj it Sarkar with the knowledge that if a person is hit with an
  iron rod on the head, then the act is likely to cause the death
  of the victim. That being so, in our opinion, it would be more
E appropriate to hold Surajit Sarkar guilty of an offence of
  culpable homicide not amounting to murder. Since we attribute
  to him the knowledge of his actions, he should be punished
  under the second part of Section 304 of the IPC.
    Conclusion:
F
      72. Accordingly, we set aside the conviction of Surajit
  Sarkar for the offence of the murder of Gour Chandra Sarkar.
  However, we hold him guilty of an offence punishable under the
  second part of Section 304 of the IPC. He is sentenced to
G undergo rigorous imprisonment for a period of 10 (ten) years.
  The fine and default sentence awarded by the Trial Court are
  maintained.
          73. The appeal is disposed of on the above terms.

    K.K.T.                                     Appeal disposed of.
H