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High Court Of Madhya Pradesh
Shiv Dayal, J.
UMRAO SINGH - Appellant
Versus
STATE OF M.P. - Respondents
Criminal Revn. 83 Of 1959
Decided On : 08/20/1960
CRIMINAL LAW - EVIDENCE ACT, 1872 - SECTION 32 - FIRST INFORMATION REPORT - ADMISSIBILITY - STATEMENT MADE TO A WITNESS BY A PERSON WHO IS NOT HIMSELF CALLED AS WITNESS - DISTINCTION BETWEEN FACTUM AND TRUTH OF A STATEMENT - SECTION 8 - ADMISSIBILITY OF STATEMENTS MADE BY A PERSON WHO IS DEAD OR CANNOT BE FOUND - SECTION 34 - COMMON INTENTION - LIABILITY OF EACH ACCUSED FOR THE ACTS OF THE OTHERS - CONVICTION FOR INDIVIDUAL LIABILITY - PROOF OF INDIVIDUAL ACTS NOT NECESSARY.
Fact of the Case:
The petitioners were convicted of causing grievous hurt to the victim, Barelal, who died a natural death six months after the occurrence. The prosecution relied on the first information report (FIR) lodged by Barelal and the testimony of an eyewitness, Pannalal. The petitioners challenged the admissibility of the FIR and the reliability of Pannalal's testimony.
Finding of the Court:
The court held that the FIR could not be considered as substantive evidence since Barelal did not die because of the injuries caused by the petitioners. However, the court allowed the FIR to be used to prove that Barelal had mentioned Pannalal's name to the witness who recorded the FIR. The court found Pannalal's testimony to be reliable and unshakeable.
Issues: 1. Whether the FIR lodged by Barelal was admissible in evidence. 2. Whether the testimony of Pannalal was reliable. 3. Whether the petitioners could be convicted of individual liability for the offence under Section 323 of the Penal Code in the absence of proof of individual acts.
Ratio Decidendi: 1. The court held that the FIR was not admissible as substantive evidence under Section 32 of the Evidence Act since Barelal did not die because of the injuries caused by the petitioners. However, the court allowed the FIR to be used to prove that Barelal had mentioned Pannalal's name to the witness who recorded the FIR, relying on the distinction between the factum and truth of a statement. 2. The court found Pannalal's testimony to be reliable and unshakeable, as he had given a vivid description of the occurrence and his statement was corroborated by other evidence. 3. The court held that the petitioners could be convicted of individual liability for the offence under Section 323 of the Penal Code even in the absence of proof of individual acts, as the case fell within the purview of Section 34 of the Penal Code, which provides for common intention.
Final Decision: The court partly allowed the revision petition. The convictions of Umrao Singh and Kunwarlal were altered from Section 323 to Section 323 read with Section 34 of the Penal Code, and their sentences were reduced to a fine of Rs. 100 each. Ghasiram's conviction was maintained, but his sentence was also reduced to a fine of Rs. 100.
( 1 ) THE petitioners Umrao Singh and Kunwarlal have been convicted of the offence under Section 323 of the Penal Code and sentenced to 2 months rigorous imprisonment and a fine of Rs. 25/ -. Petitioner Ghasiram has been convicted of the offence under Section 352 of the Penal Code and sentenced to 2 months simple imprisonment and a fine of Rs. 25/ -.
( 2 ) THE case for the prosecution was that on 27-8-1959 the petitioners belaboured Barelal who had gone out to graze his cattle, and who was blamed by the accused to have caused damage to their crops. Initially the case was registered as a non-cognizable one, but subsequently, when it was discovered on medical report that grievous hurt had been caused, the case was challaned by the police. Barelal, however, died a natural death after six months of the occurrence but before he could be examined as a witness.
( 3 ) SHRI Dey contends that the F. I. R. lodged by Barelal could not be considered by the courts below and that the evidence of the solitary eye witness, Pannalal P. W. 2, was unreliable as he was not mentioned in the list of witnesses filed by the prosecution.
( 4 ) IT is true, that the first information report is not by itself a substantive piece of evidence and the statement made therein cannot be considered as evidence unless it falls within the purview of Section 32 of the Evidence Act. It is an admitted fact that Barelal did not die because of the injuries caused by the petitioners. Section 32 was inapplicable.
( 5 ) IT is true that in the list of witnesses Panna-lal's name has been mis-spelt as 'dhannalal', (but this doubt is removed when the first information report is looked into. There, Pannalal's name is mentioned. Shri Dey contends that it is not permissible to look at the F. I. R, at all. In my opinion this argument cannot be accepted. It is proved by Ram Ratan P. W. 6 that he recorded the report which was lodged by Barelal. There is a distinction between factum and truth of a statement. It has been aptly pointed out by Lord Parker C. J. in R. v. Willis (1960) l W. L. R. 55 that evidence of a statement made to a witness by a person who is not himself called as witness may or may not be hear-say. It is hearsay and inadmissible when the object of the evidence is to establish what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made. According to Ram Ratan, Barelal mentioned Pannalal's name to him. Applying the above dictum, Ramratan's evidence is inadmissible to prove that Pannalal was in fact present at the time of the occurrence; but Ram Ratan's statement is admissible to prove that Barelal had mentioned the name of Pannalal to the witness.
( 6 ) I have perused Pannalal's statement which is unshakeable and has been rightly relied on by the courts below. He has given a vivid description of the occurrence. Ghasiram caught hold of Barelal's hand while Umrao Singh and Kunwarlal dealt blows on him. He also stated that Barelal received injuries in the head, feet and back. Shri Dey is unable to point out to me anything in his statement for which the conclusion reached by the courts below can be disturbed.
( 7 ) EMPHASIS is laid by the learned counsel on the fact that according to Tannalal, Phoolsingh was also there while Phoolsingh stated that he did not see the actual beating and it was Barelal who had told him that injuries had been caused to him,
( 8 ) IN my opinion, Barelal's statement is admissible under Section 8 of the Evidence Act. Illustrations (J) and (K) to that section apply on all fours.
( 9 ) SHRI Dey then urges that Ghasiram was not properly examined under Section 342 Cr. P. C. It is true, that lengthy questions were put to him, yet I do not see any prejudice caused to him because he answered them in detail. This shows that he fully understood the circumstances appearing against him in evidence.
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