Bapna, J. - (1.) THESE six appeals arise out of a single case. The six appellants were tried by the learned Sessions Judge of Nagaur for various offences, and convicted and sentenced as under: - (1) Chandi Dan was convicted under section 304, Part 2, of the Penal Code, and sentenced to undergo ten years' rigorous imprisonment; (2) Kandan and Mangej Dan were convicted under section 147 of the Penal Code, and sentenced to undergo two years' rigorous imprisonment; (3) Shambhu Dan, Mohan Dan and Gorkhia Nat were convicted under section 147 and 323 of the Penal Code, and sentenced to undergo two years' rigorous imprisonment on the first count, an 1 one year's rigorous imprisonment on the second count. The sentences were directed to run concurrently in case of each of the accused. Every one of the six accused has filed a separate appeal.
(2.) THE case for the prosecution is that the deceased Kistura and his two nephews, Pema and Gyana, P. Ws. 5 and 7, were in possession of a field known as 'kerewala' in village Nundra, which was claimed by Chandi Dan as his own, and he wanted to eject them. THEre had been some litigation between them. It is stated that on the 9th of June, 1949, when Kistura, accompanied by Pema and Gyana, was clearing the bushes in the field Kera-wala at about 8 or 9 A. M. , the six appellants accompanied by 8 others, came to the field armed with lathies, a gun and a sword, and threatened Kistura and his nephews with death if they carried on the clearance of the field for the purpose of cultivation, Kistura, Pema and Gyana began to run out of fear, but were followed by the party of Chandi Dan. THE fugitives were overtaken in the adjoining field of Bheron, and it is alleged that Mohan Dan gave the first blow on Kistura's shoulder. Kandan gave another blow on the right temple, which felled him. THE accused Chandi Dan is then alleged to have given a blow with the butt-end of a gun with great force on the head of Kistura. THE rest of the party of Chandi Dan assaulted Kistura as well as Pema and Gyana. Kistura died on the spot, and the assailants ran away. A report was lodged by Budha Ram, who was alleged to be an eye-witness having seen the occurrence from the field of one Jagannath. THE report was made at 9 P. M. at the Police Station, Gachhi-pura, 7 miles from the scene of occurrence. It was a report in writing, and is Ex. P. 1. THE investigating Officer reached the village on the next day, and arrested the six appellants on the 10th of June, 1949, and after investigation, 9 persons were challaned, including the six appellants. THE other three were Deva, Rama and Ladhu. THE inquiry was conducted by the Sub-Divisional Magistrate, Parbatsar, who committed all the nine persons to the Court of Session on charges under sections 302, 148 and 149 of the Penal Code. THE learned Sessions Judge amended the charges, and tried the accused on the following charges: - (1) Chandi Dan, under section 304, Part 2, of the Penal Code, for the homicide of Kistura, and under section 148 of the Code for having committed rioting armed with a deadly weapon, viz. , a gun; (2) Kandan, under section 304, Part 2, of the Penal Code, for causing the homicide of Kistura, and under section 148 of the Code for rioting armed with a deadly weapon viz. , a sword; (3) Mangej Dan, under section 147 of the Code for rioting, and under section 323 for causing simple hurt to Gyana; (4) Shambhu Dan, under section 147 for rioting, and under section 323 for causing simple hurt to Gyana; (5) Mohan Dan under section 147 for rioting, and under section 323 for causing simple hurt to Kistura; and (6) Gorkhia, under section 147 for rioting, and under section 323 for causing simple hurt to Kistura. It is not necessary to state the charges framed against Deva, Rama and Ladhu who were acquitted. THE accused denied the charges, but the learned Sessions Judge, after trial, convicted and sentenced the appellants as aforesaid. It may be stated that out of the 12 witnesses produced by the prosecution, nine are said to be eye-wit-nesses. They are: I - (1) Pema, P. W. 5. (2) Gyana, P. W. 7. (Who were with Kistura at the time, and themselves received injuries ). II - (3) Bishan Baksh, P. W. 1. (4) Bheron, P. W. 2. (They ate cultivators of neigh-bouring fields. The assault took place in the field of Bheron, and Bishan Baksh had come there on hearing the quarrel ). III - (5) Durga, P. W. 8. (6) Jagannath, P. W. 9. (7) Ghisa, P. W. 10. (8) Chimna Ram; P. W. 11 and (9) Budha Ram, P. W. 12. (They are alleged to have been present in the adjoining field of Jagannath, and seen the incident from that field ). The learned Sessions Judge has found that the last five witnesses were entirely unreliable, as in his opinion they were not present in the field of Jagannath as stated by them, but were far away in the village at the time. He also did not place reliance on Bishan Baksh and Bheron in so far as they exculpated Chandi Dai and Kandan as well as Mangej Dan by stating that the first two were not amongst the assailants, and as regards Mangej Dan, they did not mention his presence. For the conviction of Kandan, Chandi Dan. and Mangej Dan learned Sessions Judge, to use his own words, "placed greatest reliance on the testimony of Pema, P. W. 5, and Gyana, P. W. 7. In convicting Mohan Dan, Shambhu Dan, and Gorakhia, the learned Sessions Judge relied on Pema P. W. 5, and Gyana, P. W. 7, as also Bishan Baksha P. W. 1 and Bheron, P. W. 2. It was contended by the learned counsel for Kandan and Chandi Dan who were separately represented that the learned Sessions Judge had erred in placing implicit reliance on Pema and Gyana, and that the reasons for disbelieving Bishan Bux and Bheron, in so far as they denied the presence of Kan Dan and Chandi Dan were not correct. Pema has state 1 in the court of Sessions that he, Gyana and Kistura were doing Soorh (clearing of bushes) in the field for three days prior to the occurrence and on the day previous to the occurrence Chandi Dan, Kan Dan, Mohan Dan and Govind Dan had come to the field and prevented them from doing. Soorh, and that on the day of the incident, while he and his companions were doing Soorh Chandi Dan, Kan Dan, Mohan Dan, Gobind Dan, Hinglaj Dan, Bhanwar Dan, Sujan Dan, Badri Dan, Mangej Dan, Gorkhia Nat, Ladu, Deva and Ramu, came from the village. Chandi Dan had a gun, and Kan Dan had a sword and a lathi, and the rest had Lathies. All the 13 persons said that they would kill Kistura, Pema and Gyana for preparing the field for cultivation. He, Gyana, and Kistura ran away towards the west followed by the intruders. Chandi Dan asked Bheron to detain them, which he did. Mohan Dan gave the first lathi blow on Kistura, followed by Kan Dan on the temple. Kistura fell down whereupon Chandi Dan caught hold of the barrel of the gun with both hands and stru;k Kistura on the head with the butt-end of the gun. Gobind Dan and Gorkhia gave further lathi blows to Kistura on his back. The other accused, Bhanwar Dan, Hinglaj Dan, and Badri Dan gave lathi blows to Gyana. Deva, Ladu, and Rama took no part in the beating and were at a great distance from them. Kistura died on the spot, and the assai-lants left them. Pema has also stated that Jagannath, Durga, Budha Ram and Chimna Ram saw incident while standing in the field of Jagannath at a distance of 30 or 40 Paundas, P. W. 7 Gyana makes a statement similar to that of Pema but there are certain contradictions, which will be examined presently. These two witnesses purport to prove that the attack was deliberate as Pema, Gyana and Kistura did not comply with the wishes of Chandi Dan and Kan Dan on the previous day. Pema, however, was contradicted by his statement before the committing Magistrate wherein he stated that the day on which the incident occurred was the first day on which he, his brother Gyana and his uncle Kistura had gone to the field to do Soorh. Again, while Pema states that Bheron had detained the three persons Pema, Gyana, and Kistura, in his field, suggesting that they could have run away to a place safety if Bheron had not detained them, Gyana states that Bheron's wife and not Bheron detained Pema and none else. He states that Bheron had assured them that they would not be beaten. It is not clear why Bheron, who is a Brahmin and has nothing to do with the either party, should have given an assurance, which is again not deposed to by Pema. The detention by Bheron or his wife seems to have been brought on only to discredit his evidence and the learned Sessions Judge fell into the error. Bheron himself was not asked any question in this behalf. Both Pema and Gyana purport to say that Jagannath, Ghisa, Durga, Budh Ram, and Chimna Ram saw the occurrence from the field of Jagannath. These witnesses also purport to say the same and to implicate Chandi Dan and Kan Dan as well, and in this respect support Pema and Gyana. The lower Court has given good reasons to discard the testimony of all the 5 witnesses by coming to a finding that they were not present in that field. It is further clear from the evidence of P. W. 3, Balu Dass, that there is a mound of sand between the field of Bheron, where the incident took place and the field of Jagannath, and one standing in the field of Jagannath, can not see any one in Bheron's field unless somebody claimed on a Tiba, which was higher than the height of man sitting on a camel. It is apparent that Pema and Gyana can not be relied implicitly as has been done by the lower Court. Both Bishan Bux and Bheron P. Ws. 1 and 2, state specifically that Chandi Dan and Kan Dan were not among the assailants. Their evidence has been disbelieved by the following observations made by the learned Sessions Judge: - Bishan Bux holds a rent-free grant (Doli) from Chandi Dan and Kan Dan and other Jagirdars of Nundra. He is also a Tamrayat of the Jagirdars and performs their marriage rites. Being a "doli-Dar" of the Jagirdars, he is naturally interested in their cause, as he is under the impression that if he deposes against them, he might lose or forefeet his Doli grant. Besides this he admits that one Jai Singh a relative of Kan Dan had talks with him near tie Police Thana, a little before he appeared to give evidence in this court. . . . . . P. W. 2 Bheron's evidence is immaterial, as he ran away from the spot before the commencement of the assault. He also appears to be very much interested in these two accused that although the accused came to prevent them from doing so, but on the contrary detained Kastura and others who were running out of fear in his Doli, at the instance of Chandi Dan. " Bishan Bux is a Sadh, and is not a Tamrayat, and the learned Judge seems to have confused him with Bheron who is a, Tamrayat. Bishan, Bux has said that Hinglaj Dan, Bhanwar Dan, Sujan Dan, Badri Dan, and other Charans are all Jagirdars of his village. He has deposed not only against the four Charans named above, but also against Mohan Dan and Gobind Dan as well. His Doli is not from Chandi Dan and Kan Dan but by all the Jagirdars and Charans of Nundra If he had no fear of losing of his Doli by making a statement again the other Charan Jagirdar, his omission to depose against Chandi Dan and Kan Dan can not be attributed to any fear on his part of losing his Doli. The statement that Bishan Bux admitted having talked to Jai Singh is contrary to record. At the end of his statement he has stated that "i had no talk with Jai Singh. " The reasons for disbelieving Bishan Bux are erroneous and contrary to record. As regards Bheron it has already been stated above that there is a serious contradiction in the statements of Pema and Gyana on the point of detention of Kistura. Pema and Gyana and Bheron himself was not questioned on the point. He had no interest in detaining them. As to his omission to prevent the assault it is apparent from the state-ment of Bheron who is a Brahmin, that as soon as in saw that there was going to be a fight, he ran away out of fear. He was not interested in either parties, and had no interest in the property either, and his conduct in running away was not unnatural. As stated above, the evidence of Pema and Gyana can not be relied upon implicitly as has been done by the learned Sessions Judge and the evidence of Bishan Bux and Bheron is entitled to a great weight. They are independent persons, and, according to Pema and Gyana were present when the incident took place. The learned Sessions Judge also relied on these witnesses while acquitting Deva and Rama and Ladu. Bishan Bux categorically stated in his examination-in-chief that Chandi Dan and Kan Dan were not there at the time of occurrence that is, they were not among the assailants. He has male it further clear in cross examination that none of the accused persons present in court except Mohan Dan, Sambhu Dan and Gorkhia took part in the beating of Kistura and others. Bheron similarly does not name Chandi Dan and Kan Dan among the assailants in examination-in-chief; and in cross-examination makes it quite clear that he knew Chandi Dan and Kan Dan from before and did not see them persuing Kistura and others, or coming in his Doli, Pema and Gyana admit that they are on inimical terms with Chandi Dan and in a case of this nature, it is not unusual for the victims to rope in as many of their enemies as possible. The first information report, in this case was made after 12 hours after the incident and no explanation is given for the delay in the report. The name of Kan Dan does not appear in first information report but the learned Sessions Judge relied upon the statement made by Budha Ram to the investigating officer soon after the handing over of the report. In my opinion, when a written report is presented it is not necessary to record the statement of the person bringing the report but if the investigating officer chooses to do so it is part of the investigation, unless of course the report does not disclose any offence, and the statement is taken to find out if any offence had been made out, in which case however it will be the statement which would become the first information report. In the present case, the written report contained all the information necessary to register the offence. In brief, it is as follows : Report by Budha Ram. Kistura Jat has been killed in my village, and Pema and Gyana are lying unconscious. Jagirdars Chandi Dan, Gobind Dan, Bhanwar Dan, Hiag-laj Dan, Shambhu Dan Gorkhia Nat, Mangej Dan, and Sujan Dan all assembled together, went into the field of Kistura, killed Kistura, and have injured Pema and Gyana. Kistura had with him Rs. 435/-, which he had taken from the house to purchase bullocks. It is not known whether the Jagirdars have robbed him of that amount or whether it is still in the pocket of Kistura. Investigation be made. Sd. "budha Ram. " The report was quite char, and the statement of Budha Ram in answer to questions after noting the fact of the receipt of the written report can only be one under section 162 of the Code of Criminal Procedure, and was inadmissible in evidence to support the statement of Budharam in Court wherein he named Kandan also as one of the assailants. The learned Sessions Judge has committed an error in relying upon the statement of Budharam taken by the Police after he had delivered the report. As regards Kandan, the learned Sessions Judge has not believed the evidence of Pema and Gyana that he inflicted an injury on the temple of the deceased Kistura. According to the medical evidence, there was only one injury on the head, right parietal region. The evidence as regards the injury on the temple is also discrepant in so far as, while both Pema and Gyana state in their examination-in-chief that it was on the light side of the face, Gyana seems to have stated in cross-examination that it was on the left side, since he pointed out that region of his body as the place where the injury was inflicted. The learned Judge did not believe the testimony of Pema and Gyana that he caused any injury on Kistura, and convicted Kan-dan only of the offence under section 147 of the Penal Code. For the reasons above stated, the testimony of Pema and Gyana is not reliable, and in view of the clear statements of Bishan Baksh and Bheron, both Chandi Dan and Kandan are entitled to an acquittal. As regards Mangej Dan, he also is not named by Bishan Baksh and Bheron, and he is similarly entitled to an acquittal. In respect of the other three appellants, Shambhu Dan, and Gorkhia, the statements of Pema and Gyana are corroborated by Bishan Baksh and Bheron, and their conviction under sections 147 and 323 of the Penal Code has been rightly made. As a result, the appeals of Chandi Dan, Kandan and Mangej Dan are accepted, and they are acquitted. The appeals of Shambhu Dan, Mohan Dan, and Gorkhia are disallowed. Dutt, J.- I agree with the final result arrived at by my learned brother Bapna, Judge, but I respectfully disagree with his following observation made in the judgment: - "in my opinion, when a written report is presented, it is not necessary to record the statement of the person bringing the report, but if the investigating office chooses to do so, it is part of the investigation, unless of course, the report does not disclose any offence and the statement is taken to find out if any offence has been male out, in which case, however, it will be the statement which would become the first information report. In the present case, the written report contained all the information necessary to register the offence. In brief, it is as follows: "report by Budha Ram. Kistur Jat has been killed in my Village, and Pema and Gyana are lying unconscious. Jagirdars Chandi Dan, Mohan Dan, Gobind Dan, Bhanwar Dan, Hinglaj Dan, Shambhu Dan, Gorkhia Nat, Mangej Dan, and Sujan Dan all assembled together, went into the field of Kistura, killed Kistura, and have injured Pema and Gyana. Kistura had with him Rs. 435/-, which he had taken from the house to purchase Bullocks. It is not known whether the Jagirdars have robbed him of that amount or whether it is still in the pocket of Kistura. Investigation be made. Sd. Budha Ram. The report was quite clear, and the statement of Budha-Ram in answer to questions after nothing the fact of the receipt of written report can only be one under section 162 of the Code of Criminal Procedure, and was inadmissible in evidence to support the statement of Budha Ram in Court wherein he named Kandan also as one of the assailants. " In the present case, the occurrence took place at about 8 or 9 a. m. on the 9th of June, 1949. Just after the occurrence Budha Ram P. W. 12, an eye-witness in the case, got his statement written by Udai Ram P. W. 7, apparently with the idea of sending this written report to the police-station, through some other person, but afterwards Budha Ram chose to go to the police-station himself, and while going he took his written statement along with him. On reaching the police-station, he handed over his written statement to the Sub-Inspector Police, and at the same time, orally related to him the whole story. The Sub-Inspector Police took down his oral statement just below the written statement handed over to him by Budha Ram. This latter statement of Budha Ram, recorded by the Sub-Inspector just below the written information handed over to him by Budha Ram, has been held by my learned brother, Bapna Judge, to be a "part of the investigation," the whole docu-merit, i. e. , the written statement of Budha Ram and hence, inadmissible in evidence. In my opinion, the whole document, i. e. the written statement of Budha Ram handed over by him to the Sub-Inspector as well as his oral statement recorded by the Sub-Inspector, at the time when the written statement was handed over to him, constitute the First Information Report in the case and is admissible. The learned counsel for the defence, Mr. Inder Nath Modi, argued that as soon as the written statement was placed in the hands of the Sub-Inspector, the investigation commenced, and any statement taken down by him after that, will be considered to have been taken down during the course of the investigation. In my opinion, it is not correct. Unless and until a Police Officer takes an active step to start an investigation, however small that active step may be,the investigation cannot be said to have commenced. In the present case,the Sub-Inspector had not, as yet even thought of commencing investigation. As soon as he received the written statement, he started taking down the oral statement of Budha Ram. "whenever a person goes to the police-station to lodge any information relating to the commission of a cognisable offence is the duty of the officer in charge 6f the police station,to at once take down the information, as nearly as possible, in the informant's own words, and to further elicit by interrogation, any other information which may be necessary in the case. If the information is tended in writing, and the person tendering is personally acquainted with the facts of the case, it becomes all the more a duty of the Police-Officer, incharge of the Police-station, to whom the written report is tendered, to take down the oral statement of the person tendering it, specially when he himself seems willing to state the facts orally; the mere incident that the written report is presented, does not make it unnecessary to take down the information from the reporter's own lips. The latter oral statement recorded by the Police-Officer will be as much admissible in the case as the written report tendered by him, although it will be for the Court to see, as to what weight should be attached to it. . ;