JUDGMENT

Lodge, J. - This is an appeal from convictions and sentences u/s 304 (2), Penal Code, read with Section 34. The four appellants were tried by the Sessions Judge of Pabna and Bogra and a common jury. There was a charge u/s 304/34 against all four appellants, and a separate charge u/s 324, Penal Code, against appellant Ibra Akanda. The jury returned a unanimous verdict of guilty u/s 304 (2)/34, Penal Code, against all four appellants, and of not guilty in respect of the separate charge u/s 324, Penal Code, against Ibra Akanda. The learned Judge agreed with and accepted this verdict; he acquitted Ibra Akanda of the charge u/s 324, Penal Code, and convicted all four accused on the remaining charge. He sentenced Ibra and Rayis, appellants, u/s 304 (2)/34, Penal Code, each to undergo rigorous imprisonment for ten years; and in view of the age of the one and the youth of the other, he sentenced Abad and Josi u/s 304 (2)/34, Penal Code, each to undergo rigorous imprisonment for five years. Hence this appeal.

2. The prosecution story is briefly as follows:

3. On 8th June 1942, Mafiz of Narayanpur, P.S. Dhunat was returning home from the hut at about sunset. He was waylaid by the four appellants, who all belong to one family, Ibra Akanda appellant, stabbed him with a spear (fala) an the other appellants belaboured him with lathis. At that time a constable and some other men were assembled in the house of Manik Munshi near by, in connexion with the investigation of a theft case. Attracted by Mafiz's shouts they came to the place of occurrence, recognised the assailants and heard Mafiz's account of the incident. Mafiz was carried home, but died about two hours later. The usual investigation followed, and charge sheet was submitted against the four appellants with the result stated above.

4. Mr. Sudhansu Mukherjee appeared as amicus curiae and argued the appeal on behalf of the appellants, and drew our attention to a number of alleged defects in the charge. He also placed before us all the authorities bearing on the interpretation of Section 34, Penal Code, which was the most important question raised in this appeal.

5. Mr. Mukherjee complained that in the charge to the jury the learned Judge, in discussing the first information report observed:

The first information report should be used not as substantive evidence but for other subsidiary purposes such as corroboration of prosecution evidence etc.

and the learned Judge did not emphasise that the first information report might also be used to contradict the prosecution evidence. An examination of the record shews that not a single question was put to the first informant, indicating that the first information report contradicted his evidence in Court. In other words, no attempt was made in this case to use the first information report for the purposes of contradiction, in the only way sanctioned by law.

6. Therefore if it were justifiable to infer from the use of the term, etc., and the absence of specific reference to contradiction in the heads of charge, that the jury were not instructed on this point, the omission would not be of any importance in the present case.

7. Mr. Mukherjee next drew our attention to the following passage in the charge:

Exhibit 5(a)anotherdiary entry, dated 24th June 1942. This has been admitted to show that the accused had hostility with the complainant. This is an entry at the instance of the accused party making certain allegations against Mafiz and his brothers.

8. Mr. Mukherjee has argued that this is in effect using the statement of one accused as evidence against his co-accused and is therefore wrong. I am not impressed by this argument at all. Exhibit 5 (a) has not been used as evidence of the truth of its contents. It is merely an instance of conduct on the part of one accused, cited as evidence of enmity felt by all the accused. The entry (irrespective of its truth or falsehood) is certainly proof of conduct indicating enmity on the part of the informant