INCHAN ALIAS INSAN Vs. EMPEROR

JUDGEMENT

(1.) There are seven appellants in this case who have been found guilty under Section 147, Indian Penal Code, and have been, sentenced to a period of rigorous imprisonment for two years each. They were originally placed on their trial together with a man named Ijat who was charged with committing an offence under Section 302, Indian Penal Code. The jury found Ijat not guilty under Section 302 but guilty under Section 147, Indian Penal Code. Ijat has not appealed to this Court against his conviction under Section 147, Indian Penal Code. The case for the prosecution was to the effect that Jabid Ali had incurred the enmity of his CO-villagers on account of his association with a woman named Kamaljan Bibi whom he had taken to live with him as his wife. It seems that Jabid Ali had actually instituted proceedings against some of his co- villagers under Section 107, Criminal P.C. and that it was alleged on 14 April, the day preceding the occurrence with which we are now concerned, he had been attacked while he was returning home from his land. On the following day Jabid Ali was on his way to the thana for the purposes of reporting the incident which had taken place on 14 April, and he was accompanied by his mother, Lobjan Bibi, Jalikha Bibi, one of his wives, and Kamaljan Bibi. When the party had reached a spot about half a mile from Boardal village, the prosecution case was to the effect that they were attacked by a number of people including the accused persons. Jalikha and Kamaljan Bibi hid themselves in the jungle, Jabid AH ran away, but Lobjan Bibi was struck by a spear and wounded. It is then said that Lobjan Bibi was subsequently attacked by Ijjat Ali with a dao and that she was killed. With regard to the offence which took place on 15 April 1942, we are at present only concerned with the seven appellants who have been convicted under Section 147, Indian Penal Code. A number of witnesses were examined on behalf of the prosecution but, admittedly, the only witness who implicates the appellants who are now before us, is Jalika Bibi, (P.W. 1), and it is significant that, as regards this witness if the statement of the investigating officer is to be believed, she told him that she was unable to recognise any of the people who had taken part in the affray which resulted in the death of her mother-in-law.

(2.) The learned advocate for the appellants complains that the learned Judge admitted in evidence the first information report which was filed by Jabid Ali on 16 April 1942. It may be mentioned that almost immediately after filing this first information report, Jabid Ali disappeared, and that he was therefore not available as a witness when the case came on for trial before the Sessions Court. The learned advocate for the Crown faintly urged that the first information report was admissible under Section 32, Evidence Act, but it is quite clear that, in the circumstances of the present case, Section 32, Evidence Act, can have no possible application for the purpose of rendering this document admissible. Ordinarily, the first information report is proved by the prosecution for the purpose of corroborating the first informant. It may, of course, be used by the defence under the provisions of Section 145, Evidence Act. In such cases, the first information report cannot be treated as substantive evidence. in certain cases, a document of this kind !may conceivably be treated as substantive evidence, for instance, in a case in which the first informant had died as a result of an attack on him, in which case the first in-(formation report would be admissible as substantive evidence under Section 32, Evidence Act. This is not a case of that nature. There is nothing to show that Jabid Ali is dead, and the facts mentioned in the first information report, such as they are, merely relate to circumstances connected with the death of his mother. This being the case, the learned Judge was clearly wrong in treating this document as substantive evidence, and it is quite possible that the jury may have been seriously misled by the directions which were given to them by the learned Judge with reference to this matter. The first information report contains the names of all the accused persons, and according to the directions of the Judge, it may have been used by the jury for the purpose of corroborating Jhalika Bibi. On the facts of this particular case the first information report should have been treated as altogether inadmissible in evidence and should not have been placed before the jury at all.

(3.) In this view of the case, the convictions of the appellants must be set aside. The learned advocate for the Crown suggests that we should direct that the appellants be retried. In view, however, of the fact that the only substantive evidence which implicates the appellants consists in the testimony of Jhalika Bibi and that considerable doubt has been thrown on her evidence by the statement which she is said to have made to the police officer during the course of the investigation, I do not think that any useful purpose will be served by ordering a retrial. The result, therefore, is that this appeal is allowed, the convictions and sentences of the seven appellants are set aside. We direct that they be acquitted and set at liberty forthwith. Let the appellants be discharged from their bail bonds. Lodge, J.