ORDER K. Narayan, J.
1. This is a second bail application by one Murli Chaurasia said to be involved in a case under Section 302, I.P.C. registered at Crime No. 135 of 1994, P.S. Mohammadabad, District Ghazipur. His first application was rejected by order dated 14-9-1994.
2. The learned counsel for the applicant has been heard at length and since the applicant does not seem to have been satisfied with the decision made in the order dated 14-9-1994 that it was not a fit case for bail, it seems desirable that the arguments advanced at the Bar may be met with in somewhat detail.
3. According to the allegations in the first information report, which was lodged by one Mohan Lal Gupta he and his brother, were coming back from Mohammadabad Bazar when this applicant Murli Chaurasia along with two others waylaid them and assaulted saying that they were litigating too much. Murli Chaurasia was named as the person who was holding (sic) knife and assaulted with the same while two others had simply held the deceased. It thus need hardly be said that according to the version in the first information report, this applicant had played the main vital role in the murder of Ram Gahan Gupta, deceased, in the case.
4. Though the allegation of enmity in very vide terms was put forward in the affidavit, it has not been canvassed before me. May be for a simple reason that the enmity is always a double edged sword. Certain averments were also made in the first information report about the statements recorded by the investigating officer under Section 161, Cr.P.C. of the informant and Har Hangi Yadav, and Ram Prakash Tiwari but that aspect has also not been canvassed. In any event, it shall stand covered by later observations here.
5. The main argument of the learned counsel for the applicant has been that though Mohan Lal Gupta was the informant and was an eye-witness according to the first information report itself, he had failed to say anything about the assailants when he had given his opinion in. the preparation of the inquest report. As a matter of fact, it may be mentioned here that the inquest report, copy of which is Annexure VI, is shown to have been prepared soon after 6.30 a.m. on 10-4-1994. The observations were recorded by the Investigating Officer and Panchas appointed were Mohan Lal Gupta (informant), Vijai Narain Singh, Satya Narain, Sridhar Tiwari and Ravi Narain Malviya.
6. In order to properly appreciate the argument of the learned counsel for the applicant, which, in fact, was that since Mohan Lal Gupta had not said anything about the use of knife or the name of the assailants when giving his opinion in the preparation of the inquest report, it should be taken that the first information report was not in existence when the inquest was being conducted and it has come into existence later on. This argument is not tenable at least at this stage in view of the fact that according to Annexure III, copy of the statement of Mohan Lal Gupta said to have been recorded under Section 161, Cr.P.C., he had already been interrogated. This is evident by the fact that this annexure itself mentions as Pratham Parcha and apart from this the police regulations also provide that the informant shall be interrogated immediately after receipt of the first information report. Once he had already been interrogated, whether it would be necessary to keep on repeating the same trumpet again and again when he is present as a Panch in the inquest report? This aspect need not be dialated much and suffice it will for the present to say that the factor whether the first information report was recorded earlier or later than the inquest report will be dependent upon several other factors. There is no presumption that whenever a police officer does any thing he does it with ulterior motive though converse may be true as he is expected to get a support from the entries in the G.D. which are books maintained in regular course of business and other context. All that is to be seen during the trial, if required.
7. Apart from the above situation, the main question remains as to whether this statement is at all to be given at the time of preparation of inquest. The main issue will be as to whether a Panch appointed during preparation of the Panchayatnama is duty bound to say all facts that he knows and can it be said if he has failed to say that, that it will amount to be a material omission amounting to a contradiction.
8. Inquests are conducted under Section 174, Cr.P.C. and are governed by Para 132 of the Police Regulations. Section 174(1), Cr.P.C. is reproduced below:
"174(1). When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed...or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any) such marks appear to have been inflicted.
(2) to (4)...
9. It will be seen from the above provision that the investigation has to go even when there is apparently no offence committed, when a man is killed by machinery or in an accident. In the circumstances where a person has died for any reason which is not a natural one, the police officer, on getting information is expected to proceed with the inquest. The idea is not fixing the guilt but of ascertaining whether there has been any mischief against law or not. Even if it was a mischief by animal, which is not covered by human laws. This section obviously has two purposes in general, though it cannot be denied that there can be several more as well. The first purpose is to saddle the police with the responsibility to look for the possibility of offence behind unnatural death of any human being and the second may be to keep a watch and give out the line of working for the purpose of postmortem examination that nothing material is missed or obliterated. The second is the reason for which the copy of the first information report and the copy of the inquest report are also annexed with the request for post-mortem examination. The murder was known and it was uncalled for, for any person to repeat the same story as a whole as and when he faces the Inspector of Police conducting the inquest.
10. The value to be attached to the inquest report and the purpose thereof has been considered by the Hon'ble Supreme Court in few cases. In the case of Nar Pal Singh v. State of Haryana the Court came across the question of value of such statements. It has to be kept in mind that the statement under Section 161, Cr.P.C. is not to be signed while the information rendered for the purpose of inquest is to be signed by the witness. It is not just a statement under Section 161, Cr.P.C. though at times the same form may be used for the purpose of investigation as mentioned in para 132 of the Police Regulations. As observed by the Supreme Court the 'real question' before their Lordship for determination is not as to what is the effect of non-examination of certain witnesses as the question whether the witnesses examined in the Court on sworn testimony should be believed or not. Yet it was held by the Supreme Court that the failure to examine those witnesses should also not be made in statement in the inquest fatal defect.
11. Even earlier in the case of Smt. Shakila Khadar v. Nausher, , it was held that omission to name in the inquest report was not fatal and would not be fatal stand for the person being an eye-witness. The Supreme Court in para 5 of the abovesaid. judgment had also observed:
"In an inquest all the witnesses need not be examined as an inquest under Section 174, Cr.P.C. is concerned with establishing the cause of the death and only evidence necessary to establish it need be brought out."
(Emphasis supplied)
12. In view of this observation, it need hardly be said that cause of death is something different from fixing of liability. Former is the purpose of Section 174, Cr.P.C. while later is the purpose of entire investigation.
13. In the same year in the case of Pedda Narayana v. State of U.P., , it was again observed by the Supreme Court that the object of proceedings under Sec. 174, Cr.P.C. is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is apparent cause of death.
14. In view of the abovesaid observations of Hon'ble Supreme Court, it need hardly be said that during inquest a Panch is neither to name the accused nor to name the weapon. He is to consider and give his opinion from what he sees in the body and has to confine to it. It need hardly be said that whatever is concluded in the inquest is not a statement of any particular individual but an opinion of Panchas which are usually five though they can be any number more than two under para 132 of the Police Regulations and of the Sub-Inspector of Police. The place for Mohan Lal Gupta to state about the miscreants or weapon used was when he was interrogated under Section 161, Cr.P.C. and the rest of the abovesaid persons may not have joined with him in that matter as they were not eye-witnesses.
15. Apart from the above fact, it may also be mentioned that though the view may not be sub-scribed the best that could be said that was that Mohan Lal Gupta had made an omission while stating some fact before the investigating officer during preparation of inquest report. Even if it was an omission, which I repeat it may not be, it shall have to be examined at the time of final appreciation of the evidence in the light of Section 162, Cr.P.C. to which explanation has been added in the year 1973. It has to cross two barriers or rather three. It has to be omission than an omission material and then reach the status of contradiction by way of omission in the circumstances obtaining in the case and all this would come subsequent to the explanation thereof by the witness when he enters the witness box.
16. It will be too early to proceed on those lines ignoring the requirement of law in Section 162, Cr.P.C. and Section 145 of the Evidence Act at the stage of bail.
17. I may also record observations about the so called contradictions mentioned in the F.I.R. in the matter of statement under Section 161, Cr.P.C. They are still to be explained by the witness as and when they give evidence in the witness box and apart from that the main idea of these statements is to appraise the accused of the evidence as it is likely to come before him during trial. They are themselves not to be appreciated and to do it at the stage of bail, that is much before the witness has entered the witness box, will be against all principles of criminal trial. I may also refer to some decision cited by the learned counsel for the applicant which generally speaking stand met with from the observations made above. The case of Aman v. State of U.P. (Cr. Misc. Appln. No. 6696 of 1986 decided on Sept. 1,1986) (1989 UP Criminal Rulings 29) was a bail order where one 'of the reason mentioned by Hon'ble Judge was the argument of the learned counsel that there was difference between the contents of inquest report and the F.I.R. There was another reason as well that the State had failed to produce the case diary despite adjournment. It cannot be said that granting of bail in a particular circumstance of a case though mentioning something as a reason is the law laid down to be followed in every case.
18. Similar would be the position of Cr. Misc. Appln. No. 7160 of 1986 decided on 1 -8-1986 reported in 1986 UP Cri Rul 306.
19. In the two other cases Sadiq v. State, 1982 Cr Rul 155 and Brijendra v. State, 1993 (30) ACC 471, the facts relating to omission to inquest report were noticed in appeal during the hearing and disposal of the appeal after conviction, though those facts had found favour with the Hon'ble Judge, that being a matter of appreciation of evidence cannot be considered as a law laid down to be followed in the subsequent decisions. The appreciation of evidence goes with several factors and vary from case to case.
20. In view of the above observations, there is no improvement in the matter since last rejection of the first bail application and consequently this application should fail.
21. The application is dismissed.