Judgement

VENKATARAMA AYYAR, J. : The appellants were charged before the Additional Sessions Judge, Darbhanga under S. 302 read with S. 34 of the Penal Code for the murder of one Balbhadra Narain Singh. They were also charged, some under S. 147 and the others under S. 148 for being members of an unlawful assembly and for rioting.

2. The case of the prosecution was as follows : The deceased and the appellants were pattidars in the village of Mahe, and there was ill-feeling between them on account of the village pattidari. On 5-3-1951, at about 10 a. m. the deceased was returning from the river to his baithka . On the way the appellants who were armed with bhalas, sword and lathi, and some others surrounded him at the courtyard of the village school and attacked him. One Harischandra Singh, who is still absconding, plunged his bhala into the abdomen of the deceased and the appellants joined in the attack on him. The deceased ran to his baithka and from there, he was taken to the police station at Singhia. There he made a complaint which has been filed as the first information report, and therein he set out the incidents mentioned above, and implicated the appellants as concerned in the attack.

The deceased was then taken to hospital, and in view of his precarious condition the doctor recorded his dying declaration. The deceased was then sent for treatment to the hospital at Samastipur, but on the way he died. On the basis of the first information report and on the enquiries made by them the police charged the appellants under S. 302 read with S. 34 for murder and under Ss. 147 and 148 for rioting. The defence of the appellants was that the deceased was attacked by some unknown assailants in his baithka in the early hours of 5-3-1951, and that they were not concerned with the offence.

3. The Additional Sessions Judge, Darbhanga accepted the evidence of the prosecution; and convicted the appellants under S. 302 read with S. 34, and sentenced them to transportation for life. He also convicted them, some under S. 147 and the others under S. 148, but imposed no separate sentence under those sections. The appellants took the matter in appeal to the High Court of Patna.

The learned Judges agreed with the Sessions Judge in his conclusions of fact, but altered the conviction from one under S. 302 read with S. 34 to one under S. 326 read with S. 149, and the sentence from transportation for life to various terms of imprisonment. The learned Judges also maintained the conviction of the appellants on the charge of rioting, but awarded no separate sentence therefor. It is against this judgement that the present appeal is directed.

4. On behalf of the appellants, it was firstly contended by Mr. Umrigar that the finding of the courts below that the incident took place at the school courtyard and not at the baithka of the deceased was bad, because it was based on inadmissible evidence, viz. Exhibit P-7 and the testimony of P. Ws. 4, 7 and 12. Exhibit P-7 is a statement of the deceased taken by the police officer subsequent to the lodging of the first information and after the investigation had begun, and its reception would be barred by Section 162 of the Code of Criminal Procedure.

But the learned Judges thought that it would be admissible under S. 32(1) of the Ind. Evidence Act, & the correctness of this view is disputed by the appellants. But even if Ex. P-7 is inadmissible in evidence, that would not assist the appellants, as the learned Judges observed that apart from that document, they would have on the other evidence, held that the deceased was attacked at the school courtyard.

5. Then, we come to the evidence of P. Ws. 4, 7 and 12 on which the courts below have relied in accepting the version of the incident as given by the prosecution. Mr. Umrigar contended that their evidence was inadmissible, because they were examined by the police at the stage of investigation, and their statements were not recorded separately as required by Sect