Dutt, J. - (1.) THESE are four appeals by four convicts, No, 32 of 1950 by Sheo Dan, No. 33 of 1950 by Ram Dan, No. 34 of 1950 by Bahadar Dan, and No. 3. 5 of 1950 by Hetu Dan, arising out of the same judgment delivered in a murder case on the 5th of April 1950, by the learned Sessions Judge, Nagour. All the four appellants were convicted and sentenced to rigorous imprisonment for life under section 302 M. P. C. , for causing the death of Ganesh Dan, and to one year's rigorous imprisonment under section 148 M. P. C. In addition to the above mentioned sentences, Sheo Dan appellant was further convicted and sentenced to seven years' rigorous imprisonment under section 304 Part (2) for causing the death of Kalyan, and Bahadar Dan appellant was further convicted and sentenced to one year's rigorous imprisonment for causing injuries to Fateh Dan.
(2.) THE occurrence took place on the morning of the 7th of December 1948 in front of the main gate of the Raoli Pole, situated in the village of Tokarla. According to the story, as related by the prosecution witnesses, Ganesh Dan deceased and Kalyan Dan deceased, along with Fateh Dan, P. W. 6, and Jagannath Brahmin P. W. 8 were sitting on a 'chabutri' of the common fire place, just adjacent to the main gate of the Pole, inside which the houses of both the deceased are situated. Ganesh Dan was cleaning his teeth with a 'datoon'. Mst. Kalyan Kanwar P. W. 16, Ganesh Dan's daughter's daughter, came out of the Pole and requested her maternal grand father to come to the he use and take his tea. Ganesh Dan asked her to wait so that he may finish with his 'datoon'. After a few minutes she again asked Ganesh Dan to make haste. In the meantime, while she was pressing him to come to the house, all the four appellants, along with four others, Manohar Dan S/o Sumer Dan, Kan Dan S/o Mahesh Dan, Gurnan Dan S/o Pusa Dan and Badri Dan S/o Lal Dan, heavily armed with unsheathed swords in their hands, emerged from a lane just adjacent to (the Pole. No sooner these eight persons reached the spot, they began to strike blows with swords in their hands, on Ganesh Dan. Ganesh Dan tried to run away from the place, but he was over-powered by the assailants, was brought to the ground, and was very badly injured by the simultaneous sword blows given by all of them. Kalyan Dan and Fateh Dan rushed to rescue Ganesh Dan,but they were also attacked by the assailants, and were given severe sword cuts, as a result of which Kalyan Dan's hand wan cut off and severed from his fore-arm; THE assailants then ran away from the place of occurrence to their houses. It is, more or less, admitted by both the parties, that there were two hostile camps at Tokarla, and that both the deceased and all the assailants, belong to the opposite camps. Although some litigation civil and criminal, was going on between the parties since a pretty long time, but the immediate cause, that annoyed and prompted the assailants to commit the offence, was the help given by Ganesh Dan deceased, to Bhura Ganchi P. W. 1, against Ram Dan convict, in the prosecution of the latter for an indecent assault committed by him on the niece of the former. It is stated by the prosecution witnesses that about twenty days before the occurrence, the above mentioned indecent assault was committed, and Ganesh Dan, in order to take his enemies, prompted Bhura to report the matter to the police, and he himself actually accompanied Bhura to the police station' for lodging the report, the result of which was that Ram Dan was arrested by the police and challaned for the offence of outraging the modesty of the girl. Ram Dan was admitted to bail by the Magistrate and only one or two days after his admission to bail, the present occurrence took place. About half an hour after the occurrence, Bhura Ganchi P. W. 1 and Badri Dan s/o Fateh Dan were sent by Ajit Dan P. W. 10 to the Police Station at Magartalao, to lodge the report of the incident. Ajit Dan is the brother of Ganesh Dan, who reached the spot just after the occurrence when the assailants had made their escape. Magartalao is at a distance of four miles from Tokarla and Bhura Ganchi and Badri Dan reached the Police Station at 10 a. m. i. e. , only about two hours after the occurrence. The Sub-Inspector, Police, Magartalao, Sultan Khan P. W. 18 and the head-Constable were both out of station at that time, and Sunder Lal P. W. 5 a constable, was incharge of the Thana, Bhura Ganchi and Badri Dan, related verbally to Sunder Lal all the facts that were known to them, and Sunder Lal recorded these facts in the 'rojnamcha' a copy of which is Ex. P. 30. On being told by Sunder Lal that the Sub-inspector and the head-Constable were out of station and had gone to Desuri, Bhura Ganchi and Badri Dan returned to their village in order to apprise Ajit Dan and others of the fact that Sub-Inspector was at Desuri. An intimation was, however, sent by Sunder Lal to the Sub-Inspector at Desuri through two 'sowars', Lal Mohammed and Sakhat Singh when Bhura and Badri Dan were returning to their village, they met Ajit Dan and others in the way, who were taking the injured persons to the Police Station. On being apprised of the fact that the Sub-Inspector was at Desuri, Ajit Dan and others diverted their way to Desuri which is at a distance of 8 or 10 miles from Tokarla. In the way, Ganesh Dan succumbed to his injuries when the party reached near Desuri, they were met by the Sub-Inspector Sultan Khan, who was going to Tokarla. The Sub-Inspector stopped right there and took the party to the hospital. At about 8 p. m. a written version of the occurrence, which is Ex. P. 1, was handed over by Ajit Dan to the Sub-Inspector Police, Sultan Khan. Ex. P. 1 was got by Ajit Dan to be written by Champa Lal P. W. 15. The Sub-Inspector at once sent this written report to the Police Station Magartalao with the direction to register it. At about 10 p. m. on the same day i. c. 7th December 1948, a dying declaration of Kalyan Dan which is Ex. P. 35, was recorded by the Sub-Inspector, Sultan Khan P. W. 18, because the Magistrate, Desuri was out of Station on that day. Kalyan Dan succumbed to his injuries at 4-30 p. m. on the 8th December 1948. On the 9th of Dec. 1948 at 6 p. m. , a statement of Hetu Dan and Sheo Dan convicts, confessing the guilt, was recorded by the Police in the 'rojnamcha'. This statement, which is nothing less than a confession of the accused before the police, is Ex. P. 31, In this confession, a clue of two swords was given by the convicts to the police. On the 10th of December, 1948, two blood stained swords were discovered by the police, at the instance of Sheo Dan convict, from the bed of a river, Smor, which flows at a distance of about two miles from the village of Tokarla. Sheo Dan took the police party to the stream, and pointed out the place in the bed of the stream where the swords were burned. Sheo Dan himself dug the place, above two feet deep, and brought the swords out. All the four appellants have denied the charge and have pleaded not-guilty. Hetu Dan and Sheo Dan convicts have admitted their presence on the 'chabutri' when fatal injuries were inflicted on the bodies of Ganesh Dan and Kalyan Dan, but they have set up quite a different story of the occurrence. The following is the verbatim reproduction of the , relevant parts of the statements of these two convicts : - Statement of Hetu Dan : "on the alleged date and time, I was sitting on the 'chabutri5 of the Pole with Ganesh Dan, Gopal Dan, Kalyan Dan and Fateh Dan. There broke out a quarrel between Ganesh Dan and Kalyan Dan about a house and both struggled with each other. Gopal Dan brought a sword and gave a blow with it on Ganesh Dan but he could not be saved. Then Ajit Dan, real brother of Ganesh Dan, came and gave a sword blow on Kalyan Dan. Gopal Dan ran away, we also ran away. Gopal Dan gave two sword-blows on Ganesh Dan, and Ajit Dan also two on Kalyan Dan". Statement of Sheo Dan: "on the alleged date and time, I was also present, on the 'chabutri' of Kan Dan along with Kalyan Dan, his son Gopal Dan, Ganesh Dan, Fateh Dan and Hetu Dan. Kalyan Dan's and Ganesh Dan's houses are adjoining each other. Ganesh Dan's window overlooked the premises of Kalyan Dan. Kalyan Dan told Ganesh Dan to close up the window as it disturbs his privacy. Ganesh Dan refused to close the window. On this, both abused each other. Gopal Dan went inside the house. Kalyan Dan had an axe with him. He struck Ganesh Dan on his head with that axe. Mean-while, Gopal Dan also came with the sword and began to beat Ganesh Dan with his sword. Ajit Dan also came with a sword. Ajit Dan gave two sword blows to Kalyan Dan. Ganesh Dan ran inside. I and Hetu Dan caught Ajit Dan. He also, then went away. There was enmity between Ganesh Dan and Kalyan Dan". 5. The learned counsel for the appellants Mr. Than Chand has veriably put the case of the defence before us. His contentions are that the prosecution has utterly failed to prove the case against the four appellants, that the eye-witnesses pre wholly unreliable, that the reliance has been placed by the learned Sessions Judge, on documents, which are inadmissible in evidence, and which stand unproved no the file, and that an attempt was made, by the prosecution, from the very beginning,to implicate innocent persons of the other party, in the case. The learned counsel pas discussed separately the evidence of each and every eye-witness. There are five-witnesses in the case: Mst. Kalyan Kanwar P. W. 6, Jagannath Brahmin P. W. 8, Mst. Sun-dar P. W. 7 and Ramla P. W. 3, Mst. Kalyan Kanwar and Fateh Dan supported the story of the prosecution, in full, and named al!l the eight assailants who came to the spot, heavily armed with swords, and inflicted injuries on the persons of Ganesh Dan, Kalyan Dan and Fateh Dan. Jagannath P. W. 8 deposes that he was present at the time of the occurrence, seven or eight persons armed with swords, came to the spot and began to inflict injuries with their swords on Ganesh Dan, he became nervous and ran away from the place, he could recognise only four, Sheo Dan, Hetu Dan, Ram Dan and Badri Dan the present appellants. Mst. Sunder P. W. 7's house is just near the place of occurrence. She says that she did not see any body striking blows on the bodies of injured persons. She, on hearing the cries, opened her door and saw Ganesh Dan lying injured on the ground and also saw some persons Manohar Dan, Kan Dan, Hetu Dan, Ram Dan and Sheo Dan who had swords in their hands, running away from the place of occurrence. Ramla P. W. 3's evidence is that he heard the cries of Kalyan Kanwar when he was in his house, which is situated at a distance of forty 'panwdas' from the place of occurrence [and that, on hearing the cries, he opened his door and saw from a distance of two 'panwdas' from him, the accused Hetu Dan, Bahadar Dan, Ram Dan, Sheo Dan, Badri Dan and Manohar Dan, with blood strained unsheathed swords in their hands, running at a full speed towards Gandhi-yon-ki-gali. Out of these five witnesses, none lodged the first information report with the police. There are two docu-ments on the file, Ex. P. 30 and Ex. P. 1, which claim to be the F. I. R. in the case. Ex. P. 30 does not contain the names of the assailants and was given at 10 a. m. on the 7th of December 1948 by Bhura Ganchi. Ex. P. 1 contains the names of eight assailants and was given by Ajit Dan at 8 p. m. on the same day. The learned counsel for the appellants, has attacked both of these documents as being inadmissible in evidence, and as unworthy of being used as corroboratory evidence in the case. Ex. P. 30 is attacked on two grounds: - (1) It is not signed by Bhura Ganchi as required by the law, and hence it is inadmissible in evidence. (2) It has not been proved, as it was never put to Bhura Ganchi when he gave his evidence. The answer to the first objection is very simple. The execution of a document has nothing to do with, the admissibility of the document in evidence. If a document is not drafted according to the rules laid down by the law of procedure, it does not become inadmissible on account of this reason. This is right that according to s. 154 of the Cr. P. C. , every information, relating to the commission of a cognizable offence, given to a police officer, shall be signed by the person giving it, but S. 154 of the Code is after all a rule of procedure laid down by the legislature, to. be observed by the police in recording the first information report. If this rule of procedure is not adopted, the question of the admissibility of the report will not be affected even the least. The failure to adopt the proce-dure, as laid down in s. 154 Cr. P. C. , may affect the credit that is to be given to the report, but nevertheless, the report will be admissible in evidence. First information report is not a substantive piece of evidence in the case, it has only a corroboration value, and there is every possibility of its losing that value,if it was not recorded according to the procedure as laid down in the Code. In Mir Aman v. Emperor, reported in A. I. R. 1935 Peshawar 165 it was held that failure by the police to observe the procedure laid down in s. 154 Cr. P. C. does not make the statement inadmissible. " As far as the proof of Ex. P. 30 is concerned there is no force in the argument of the learned counsel for the appellants. The report was recorded by Sunder Lal constable P. W. 5, and Sunder Lal has proved it. In producing Bhura Ganchi in the court, as a witness for the prosecution, a full opportunity was given to the defence, for contradic-ting the witness from the report Ex. P. 30, if so desired. The result is that Ex. P. 30 cannot be declared inad-missible or unproved, and it can be used for or against the prosecution up to the limits permissible under the circumstances. With regards to Ex. P. 1, the learned counsel for the appellants, has contended that it is also inadmissible as it was given twelve hours after the lodging of the first information report, Ex. P. 30, and hence, was late in point of time. This second report Ex. P. 1 was proved by the prosecution, and Ajit Dan P. W. 10 who lodged it was also contradicted from it by the defence. The questions of the admissibility in evidence of first information reports, specially where there are more reports than one, frequently arise, and are frequently misunderstood by the trial magistrates. We consider that an exposition of the law on the matter is desirable. In criminal trials, the rules of evidence to be observed, are of two kinds, general and special. General rules of evidence are contained in the Evidence Act, oral evidence must be direct i. e. , it must be given by the witness who saw, heard or perceived the fact of which the evidence is given. Under this rule, it is the deposition of witness, given at the trial, that can be treated as a substantive evidence in the case. No other previous statements given by him can be treated so. But previous statements of witnesses can be used for corroborating purposes by the prosecution and for contradicting purposes by the defence under s. 157 and 155 of the Evidence Act, respectively. S. 157 Evidence Act permits a former statement of a witness to be proved in order to corroborate his testimony, S. 155 Evidence Act allows the former statement of witness to be proved in order to contradict his evidence. So, under these two sections, any statement of a witness given before a police officer can be used at the trial for the purposes of corroborating and contradicting the testimony of that witness, as the case may be. But there is a special rule of evidence laid down in s. 162 of the Criminal Procedure Code, which is to the effect, that statement made to a Police Officer, in the course of an investigation shall not be used for any purpose at an enquiry or trial in respect of any offence which is under investigation at the time the statement is made. Hence, according to this section, it is only the statements made to a Police Officer during the course of an investigation of an offence, that are excluded from the operation of s. 157 and 155 of Evidence Act. All other statements made to a Police Officer before the commencement of the investigation are admissible at an enquiry or trial for the purposes of corroboration or contradiction. To put it in a nut-shell, statements to a Police Officer can be of two kinds: - (1) Those given before the commencement of the investigation. (2) Those given during the course of the investigation. The term 'f. I. R. ' is not defined anywhere in the Code. Any statement recorded under s. 154 Cr. P. C. is termed as F. I. R. section 154 Cr. P. C. lays down only a procedure as to how an information of the commission of an offence is to be recorded. It does not say that the first information recorded, with regards to the commission of an offence, will be considered to be the only F. I. R. in the case. Hence, all statements whether one, two or three, relating to the commission of a cognizable offence, made to the police, before the commencement of the investigation, are admissible in evidence at an enquiry or trial for the purposes of corroboration or contradiction. All such statements can very well be designed as first information reports.
(3.) IN the present case, we are simply to see whether Ex, P. 1 was male by Ajit Dan to the Sub-INspector Police, Sultan Khan before the com-mencement of the investigation or afterwards? Ex. P. 30 was lodged by Bhura Ganchi at to a. m. at the Police Station Mahatalao, and it was recorded in the 'rojnamcha' by Sunder Lal constable P. W. 5. Just after the record of Ex. P. 30, two sowars Lal Md. , and Sakhat Singh were sent to Desuri in order to intimate the Sub-Inspector of the occurrence. Lal Mohammed and Sakhat Singh reached Desuri at any time during the day of the 7th of December 1948, and informed the Sub-Inspector that "in Tokarla, one Ganesh Dan has been injured with sword-blows" the Sub-Inspector at once left Desuri for Tokarla, and at some distance from Desuri near the village of Lambi, he met Ajit Dan and his party, who were conducting the injured persons, and were taking the dead body of Ganesh Dan to the police. In reality, the investigation of the offence commenced just at the time the Sub-Inspector left for Tokarla. The Sub-Inspector must have taken charge of the dead body of Ganesh Dan somewhere near Lambi. It was his duty. He must have made oral enquiries from Ajit Dan and others with regard to the occurrence. The party was escorted by the Sub-Inspector to the Desuri Dispen-sary, and reached there pretty long time before the lodging of the report Ex. P. 1. The dead body of Ganesh Dan was handed over to the doctor at 7 p. m. on 7. 12. 48, who conducted the post-mortem examination on the next day. In the very beginning of the postmortem examination report Ex. P. 7 there is the following note to this effect: - "post-mortem examination of the body of a Hindu male named Ganesh Dan S/o Mukan Dan, caste Charan, aged about 45 years, resident of village Tokarla. , District Desuri, sent by S. I. P. , Magartalao, under the custody of P. C. Hukma Ram No. 510. Body arrived at about 7 p. m. on 7. 12. 48 and the post-mortem examination was conducted at 9 a. m, on 8. 12. 48 in the presence of P. C. Hukma Ram. " The report Ex. P. 1 was written by Champa Lal P. W. 15. Champa Lal deposes in his statement, that "he was called as a 'motbir' by S. I. P. Magartalao on 7. 12. 48 near Desuri Dispensary. " and he was shown "the injuries on the bodies of one deceased Ganesh Dan and also his blood-stained clothes. " Champa Lal further deposes that "ajit Dan was quite unknown to him", and he "does not remember whether the report was written in my shop or in the 'thana'. " The report Ex. P. 1 was written on 8 p. m. by a person who was called by the S. I. P. to act as a 'motbir' in the investigation. Doubtlessly, it can be said that the report Ex. P. 1 was lodged with the police during the investigation of the offence, and hence, it is inadmissible in evidence in the case. But notwithstanding of its being inadmissible as F. I. R. , it is a statement of a prosecution witness, taken by the police during the investigation of the offence, and it can be used by the accused for the purpose of contradicting the testimony of a witness, and it has been so rightly used for the purpose. Apart from the oral testimony of the prosecution witnesses, there is another important document on the file and that is Ex. P. 35, the dying declaration of Kalyan Dan deceased. Ex. P. 35 was recorded by the Sub-Inspector Police, Sultan Khan at 10 p. m. on the 7th of December 1948, in the hospital at Desuri, in the presence of Jethmal P. W. 11 and one Sohanlal. Sultan Khan and Jethmal were examined in the Sessions Court by the prosecution, in proof of the dying declaration. The learned counsel for the appellants has vehemently attacked Ex. P. 35 and has contended that it is inadmissible in evidence. His argument is that it was not actually written by deceased himself and as it did not bear the signature of the deceased, it is not the written statement of the deceased within the meaning of Sec. 32, Evidence Act, and is, therefore, inadmissible in evidence. He further - contends, that as none of the witnesses, produced to prove Ex. P. 35 has repeated, while giving evidence, in his own words, what the deceased had said while giving the statement, the dying declaration does not stand proved on the file and is not worthy of being acted upon in a murder case. The learned counsel in support of his arguments has referred us to Bhagwan v. Emperor, 23 I. C. , 195. The dying declaration of Kalyan Dan was proved in court by the testimony of Sultan Khan, Sub-Inspector, P. W. 18, and Jethmal P. W. 11. The relevant portions of their statements are as follows: - Sultan Khan: - "i myself recorded the dying declaration in the presence of 'divani and Fauzdari Mohurers and Potedar' of Hakumat Desuri. That dying declaration is Ex. P. 35, and whatever had been taken down in the dying declaration' were the actual words used by Kalyan Dan. " Jeth Mal: - "the Sub-Inspec-tor recorded the dying declaration of Kalyan Dan in our presence. He then took our signatures on it. The statement which was recorded in our presence is a true statement of what Kalyan Dan orally stated before us. This statement is Ex. P. 35. " We have gone through Bhagwan vs. Emperor, 23, I. C. , 195. It is a single bench ruling. The learned Additional Judicial Commissioner, Nagpur observed as follows: - "the dying declaration, not reduced to writing, must be proved by oral evidence of any person who heard it. When a Police Officer is testifying to such a declaration, he can refresh his memory by reference to the notes he might have made or read at that time. Such notes, to be themselves admissible in evidence as proof of the statements made by the dying person, must bear the signature of the deponent. " ;