Dawson Miller, C.J:— (after stating the facts of the case as set out above, proceeded as follows):—

It was argued before us in appeal that the written statement made to the Sub-Inspector by the appellant's wife, on the evening of the 16th, ought not to have been admitted in evidence as a first information report. It was pointed out that information having been already given at the police-station earlier by the chaukidar, any statements afterwards taken by the police were taken in the course of an investigation and were inadmissible as evidence under section 162 of the Criminal Procedure Code. I have no doubt that the statement made at the police-station by the chaukidar was information relating to the commission of a cognizable offence within the meaning of section 154 of the Code. It ought to have been taken down in the book kept for that purpose as provided in the section, and whether this was done or not in the particular circumstances of this case, I think all further statements taken from the witnesses were taken in the course of a police investigation and that the written statements so taken were inadmissible as evidence under section 162 of the Code. Circumstances may arise in which information is given to the police of such a vague and indefinite character that it cannot be treated as coming under section 154 so as to make it incumbent upon the officer-in-charge of the police-station to start an investigation and lie may reasonably require more direct information before doing so and such further information given to him in such circumstances might not come under the provisions of section 162. The information referred to in section 154 appears to me to be something in the nature of a complaint or accusation or at least information of a crime, given with the object of putting the police in motion in order to investigate, as distinguished from information obtained by the police when actively investigating a crime. I can also conceive that the information referred to in section 154 may come from more than one source, and more than one such information may be recorded at or about the same time, but once the police have taken active steps to investigate, any written statements taken by them cannot be admissible as evidence as they would come within section 162. The Sub-Inspector in the present case stated that as the chaukidar did not give him any idea of the seriousness of the wound he thought the case to be non-cognizable. I have no doubt that he acted honestly in coming to this belief but at the same time there can be no doubt that the information disclosed by the chaukidar in the first instance was such as to show that something more than a common assault had been committed. I therefore consider that the so called first information taken from Budhni, the wife of the appellant, ought not to have been placed on the record as it was not admissible in evidence. I observe that the learned Judicial Commissioner does not refer to this statement as evidence in the case and his judgment does not appear to have been in any way influenced by it. I also think that it should be rejected. Had I considered that it in any way influenced the learned Judicial Commissioner in arriving at the conclusion of the appellant's guilt, I should have considered whether it was necessary to order a new trial. But after considering the other evidence in the case, coupled with the appellant's own confession, I feel no reasonable doubt in my mind that the appellant was guilty of murder. It is noticeable that the appellant, when examined in the Session Court, did not deny that he had confessed before the Magistrate: nor did he deny that he had beaten Tikua. He pleaded that he did not know whether he had or had not, because he had taken handia. This was also his defence before the Committing Magistrate in which he admitted the assault upon his brother but said he was drunk. The main witnesses of his guilt were the appellant's wife and a near relation and they were no doubt confronted with a very difficult and trying situation. It is only natural that they should try as far as possible to do what they could for one so nearly related, and the evidence given by both of them before the Committing Magistrate as well as the evidence of Khurloo given at the trial abundantly corroborate the confession made by the appellant and leave no doubt in my mind as to his guilt.

It was contended that the statements made before the Committing Magistrate were not admissible as substantive evidence in the case and that a conviction could not be based solely upon such evidence. For this proposition the case of Queen-Empress v. Jeochi was relied upon. In that case there was no evidence before the Court to prove the guilt of the accused except the statements made by some of the witnesses when before the Committing Magistrate, and Bannerji, J., as the witnesses had given a diametrically opposite version before the Sessions Judge, refused to convict upon such evidence. In the later case of Emperor v. Dwarka Kurmi the same learned Judge, when sitting with Aikman, J., explained that in the earlier case he did not intend to hold that such depositions were wholly inadmissible, and having regard to the clear language of section 288 it could not be held that statements made before the Committing Magistrate could not be admitted in evidence under the section. Again the Madras High Court in Queen-Empress v. Doraswami Aiyyar held that under section 288 of the Code, the Court is not restricted to admitting the evidence of a witness duly taken before the Committing Magistrate merely for the purpose of contradicting that witness when giving evidence in the Session Court, but that the section was intended to enable the Court to read the previous evidence as substantive evidence at the trial where, for the purposes of justice, the adoption of such a course was found necessary by the Judge. A similar view was also expressed by the Bombay High Court in Maruti Joti Shindle v. Emperor, and in my opinion the section clearly intends that the evidence taken before the Committing Magistrate where the witnesses produced are examined at the subsequent trial may be treated as substantive evidence in the case. No doubt it is a matter for the discretion of the Judge whether he thinks that such evidence should be used in the interests of justice. At the same time I consider that many cases may arise in which it would be extremely dangerous to rely upon such evidence where witnesses have produced themselves before the Sessions Judge altogether unworthy of credit. In my opinion the learned Judicial Commissioner rightly admitted the evidence in this case. It must also be observed that it was not the only evidence which corroborated the appellant's confession. That of Khurloo as given in the Session Court was strong corroboration of the fact that the appellant struck his brother with some sort of weapon.

The only other point argued before us was that the appellant might not have been aware that the blow which he struck his brother was only likely to cause his death, or that he might have inflicted the blow under a grave and sudden provocation which deprived him of his self-control. From first to last in this case there is no suggestion of any grave or sudden provocation: indeed the evidence shows that the quarrel between the brothers was not violent or heated or that anything in the nature of a fight arose between them before the act was committed: nor is it possible to believe that any one, using a weapon, such as that which was used in this case in inflicting the wound which the deceased man received, could fail to realize that his act was so imminently dangerous that it must in all probability cause death or at least such bodily injury as was likely to cause death; and I can find no circumstance which should lead us to interfere either with the verdict or the sentence. The appeal is accordingly dismissed and the sentence confirmed.

Mullick, J.:— I have no doubt that the accused committed culpable homicide by causing the death of his brother, Tikua

From the evidence of the accused's cousin, Khurloo Oraon, in the Session Court it appears that on Friday, the 15th December last, he was on a visit to the accused. The deceased Tikua did not share in the meal but sat afterwards with the witness and Gansa in the verandah of one of the huts. Khurloo says that suddenly Gansa struck Tikua on the head with something which he did not see and that Gansa then went away. But in the Court of the Committing Magistrate on the 3rd January, 1923, this witness said that Gansa and the deceased began quarrelling, that Gansa then took up his balua, struck the deceased on the head with it and ran out of the house; he also admitted that the accused's wife, Mussammat Budhni, was sitting in the verandah at that time. In the Session Court the witness denies that there was any quarrel; at the same time lie asserts that what he said before the Committing Magistrate was true, though he cannot explain why the statement that Gansa and the deceased began quarrelling appears in the Magistrate's record. As to his denial that Mussammat Budhni was in the verandah he, when confronted with his statement before the Committing Magistrate, explains that Budhni was sitting in the verandah of another room.

The Investigating Officer, Ghulam Haider, who took the statement of Khurloo on the evening of the 16th December, states that Khurloo corroborated the statement made to him by Mussammat Budhni which clearly speaks of a quarrel between Gansa and Tikua with regard to the division of the paddy crop. Again at 9 p.m on the 18th December the accused made a confession before Mr. Sharling, First Class Magistrate, in the sub-jail at Gumla, the record of which runs as follows:

Warnings. I am Magistrate. I warn you that if you have anything to say, think over, consider and then say. Don't speak false or don't speak anything tutored by any man.

Question—What do you wish to say?

Answer—There was a division between my brother Tikua and myself. I struck him with a balua on his head. We are 8 members including my children. Tikua is along with his mother. He picked up a quarrel for his share. I have no motive in saying this. Nobody has tutored me. He took two annas while I have 1½ annas of land.

On the 4th January the accused was examined by the Committing Magistrate and the record of his statement runs thus:

Question—Did you assault your brother Tikua with balua, on his head?

Answer—Yes, I was drunk.

Question—Did you make this statement (Confession Ex. 6, and read over to the accused before me)?”

Answer—Yes.

In these circumstances I do not think that there can be any doubt that the statements made by Khurloo to the Sub-Inspector and to the Committing Magistrate are more correct than those made by him before the Sessions Judge. That he was present and saw the assault is common to both sets or statements, and his denial in the Session Court that there was any quarrel is clearly false and fails to explain the cause of the assault.

It is curious, however, that nothing was asked from the witness as to what he did after the assault. If he had been questioned on the point he might perhaps have given valuable information as to the conduct of the accused, but in my opinion his evidence sufficiently proves that there was a quarrel between the accused and the deceased in consequence of which the accused inflicted the injury which caused the death of Tikua.

The learned Vakil for the accused contends that Khurloo's statement before the Committing Magistrate is not admissible in evidence because the accused did not cross-examine him. The record does not show why the witness was not cross-examined in the Committing Magistrate's Courts but there is no reason for supposing that the accused was deprived of the opportunity of cross-examining the witness. There is nothing to show that he was in any way prevented by the Court from exercising his right of cross-examination.

The only other eye-witness is the accused's own wife, Mussammat Budhni. She too has given evidence in the Session Court which is at variance with her evidence before the Committing Magistrate.

She states in the Session Court that Tikua and the accused took their meal together and that her husband went to bed and that she does not know what happened to Tikua, but that next morning she found Tikua unconscious in the verandah with a wound on his head.

Before the Committing Magistrate, on the 3rd January, 1923, she admitted that the two brothers began to quarrel about the division of the paddy crop and that her husband struck the deceased on the head with a balua which was in the verandah and that the witness, Khurloo, was then present.

She was the first person examined by the Sub-Inspector, Ghulam Haider, on the 16th Decomber and she then gave a slightly fuller account of the occurrence adding that when she questioned her husband he replied that he had assaulted his brother with the balua thinking it to be a lathi.

Ghulam Haider deposes in the Session Court that she handed a balua to him saying that it was the weapon with which the assault has been committed.

The learned Vakil for the accused objects to the admissibility of Budhni's statement to the Sub-Inspector on the ground that it is a statement made in the course of an investigation and therefore inadmissible by reason of section 162. On the other hand the learned Assistant Government Advocate contends that it is an entry in an official book prescribed by section 154 of the Code and that section 35 of the Indian Evidence Act applies. To this the learned Vakil rejoins that the real first information in the case, i.e, the information upon which the Sub-Inspector took cognizance of the offence and commenced investigation was the statement of the chaukidar, Rup Singh, which was given at the thana at 4 p.m on the 16th December and which ran as follows:

“Rupsingh chaukidar of Bangoleya came and reported that this day morning while he was returning from Harakh Ahir's house of Bngaucha with Harak, Tikua Oraon's mother of Bangoleya said to him that her elder son Gansa Oraon assaulted his younger brother Tikua last evening while they were under the influence of handia, with a tangi; he went there along with Harak and saw Tikua Oraon who has got blood stained wound on his head and asked Tikua as to who assaulted him, but he gave no reply.”

The Sub-Inspector explains that he did not trust this information and that he did not commence the investigation till he had visited the locality and taken the statement of Mussammat Budhni.

In my opinion the investigation had already commenced when the statement of Mussammat Budhni was recorded; and the learned Vakil's contention must be accepted.

The word “information” is not defined but the definition of “complaint” throws some light upon its meaning. “Complaint” is defined in section 4(h) as an allegation made to a Magistrate with a view to his taking action that some person, whether known or unknown, has committed an offence. In my opinion an information is a corresponding allegation made to a police officer and this view seems to me to be supported by the language used in section 112 of the Code of 1872 (Act X of 1872) which provides for the entry in the official register, not of informations but of complaints. I think then that if the allegations made are in the nature of a complaint the Police Officer must record them as an information under section 154, and the writing will attract the provisions of section 35 of the Evidence Act; and if, as he seems to be entitled to do, the Police Officer should record more than one information relating to a cognizable offence they will all share the privilege of being exempt from the disability imposed by section 162 of the Criminal Procedure Code. In every case it is for the Court to decide whether the communication is an information in this technical sense and whether and when the police investigation had in fact begun.

The question then is whether in the present case the investigation had begun before Budhni's statement was recorded by the Sub-Inspector. In my opinion it had for the reason that Budhni's statement was not made to the Sub-Inspector with a view to taking action; on the contrary from Rup Singh's evidence it is clear that no one in accused's house was willing to come forward as the accuser and I am satisfied from the facts of this case that Budhni's statement was certainly not that of a voluntary informant. It is then clear that although the chaukidar's information was hearsay the Sub-Inspector did in fact take it as an information under section 154 and that he had already commenced his investigation when he recorded the statement of Budhni.

Therefore the writing (Ex. 1) is not legal evidence.

But the exclusion of the document does not affect the decision in this case; for Budhni's deposition before the Committing Magistrate clearly shows that the assault took place on account of a quarrel about land and that she witnessed it. The Sub-Inspector has given evidence under section 157 of the Indian Evidence Act which corroborates that deposition and her explanation in the Session Court that the statement and the deposition were made under the influence of fear cannot in the circumstances be accepted.

It is again to be regretted that no attempt was made either in the Committing Magistrate's Court or in that of the Sessions Judge to elicit from this witness any information as to the accused's movements during the remainder of the night. Rup Singh, however, deposes that when on the morning of the 16th he went to the accused's house the accused would not allow Tikua to be taken to the police nor would he go there himself. The only other inmate of the house, on the night of the occurrence, was Mussammat Bauni, the mother of the accused, but she states that she came home late and was taken straightaway to bed and that it was not till the following morning that she saw the wound on Tikua's head.

Realizing the prime importance of reducing the value of the accused's confessions the learned Vakil contends that having been retracted in the Session Court they themselves require corroboration. Now in the Session Court the accused, while admitting the two previous statements made to the Magistrate, said that he had been beaten by the police and that having been under the influence of liquor he knew nothing about the assault. In my opinion the statement made by the accused to the Committing Magistrate on the 4th January, 1923, was not tainted by any coercion or undue influence and it is conclusive corroboration of the confession of the 18th December, 1922; it proves satisfactorily that the accused did assault his brother.

In this later statement he added the plea of drunkenness but it is clear there is no substance in it. The only direct evidence on this point is that of Budhni and she states that Gansa and the deceased had drunk handia in the morning but not with their evening meal. The chaukidar also states in his information to the police that deceased's mother had informed him that the assault had been committed under the influence of drink. Giving the fullest weight to this evidence it goes only to show that the accused had taken alchohol in the course of the day, but the onus of proving that he did not commit the act with the intention of causing death or injuries sufficient to cause death is upon him and he has declined to give any explanation or evidence in the Session Court. There is no evidence whatsoever that the accused was not in a position to formulate the intention to kill or to cause injuries sufficient to cause death. As to the quarrel there is no evidence of its suddenness and no provocation has been proved which would reduce the offence to one less than murder.

The result is that, in my opinion, the accused is guilty of murder.

As for the motive, the evidence of Dasain and Sukhan shows clearly that a dispute had been going on between the deceased and the accused and that the deceased wanted a division of the family lands because he wished to marry.

Finally an appeal has been made for mitigation of sentence, but having regard to the callous manner in which the accused behaved after the occurrence, it is impossible to allow the plea. The evidence of Dasain shows that after the assault the accused came to him and said that he had done wrong and complained that he was feeling cold. He did not explain what he had done but he borrowed a covering from Dasain which was recovered the next day from the accused's house. Nothing is known as to what he did during the remainder of the night, but it does not appear that he made any attempt to assist Tikua or that he showed any contrition. On the following morning the accused declined to allow the deceased to be taken to the thana and it was not till the police arrived that the deceased was despatched to the hospital at Gumla.

In my opinion the sentence of death should be confirmed.

Appeal dismissed.

Sentence confirmed.