Harish Chandra, J.
1. The appellants are Moti Singh (50), Dal Singh (62), Nanku Singh (42), Kheoraj Singh (40) and Hukmi Singh (38), residents of village Damkoda in police circle Data, ganj in the District of Budaun. Moti Singh and Dal Singh have been convicted under Section 147 and Sections 323 and 304 read with Section 149, Penal Code, and sentenced to two years' rigorous imprisonment, one year's rigorous imprisonment and five years rigorous imprisonment respectively for the three offences. The other three appellants have been convicted under Section 148 and Sections 323 and 304 read with Section 149, Penal Code, and sentenced to three years', one year's and five years' rigorous imprisonment respectively for the three offences. Moti Singh and Kheoraj Singh are brothers. Dal Singh and Nanku Singh are also brothers and are cousins of the other two. All the appellants belong to the game family and the last appellant Hakim Singh is a cousin of the other four appellants.
2. The prosecution story is that on 15-9-1945 in the evening in village Damkoda the battle of the appellants were grazing in the paddy field of one Hukmi Singh. Hukmi Singh and his brother Ram Dayal deceased drove them out of the field. Thereupon all the five appellants who were armed with lathis and spears rushed at them. They ran towards their house in order to save themselves. The appellants chased them and overtook them on the chabntra of the chaupal of one Badshah Singh and beat them with lathis and spears. Ram Dayal Singh was struck appear blow by the appellant Kheoraj Singh and fell down below the chabutra of Dharam Singh's chaupal which is situated close to the chaupal of Badshah Singh. It is also stated that the appellant Nanku Singh struck him a spear blow in-Bide his mouth. Ram Dayal Singh died on the spot as a result of the injuries received by him. Hukmi Singh was also struck with lathis and received several injuries. Hukmi Singh could not go to the thana on account of the injuries and the chaukidar who lived in another village was informed on the following morning and he went to village Samrer and met the second officer of the Dataganj Police Station, Munshi Sardar Husain, who was engaged on some work in that village and gave him information some time in the course of the same morning. The Sub-Inspector immediately proceeded to village Damkoda and arrived there between 2 and 8 p. M. On arrival he recorded what he described as the first information report of Hukmi Singh, Ex. P-4, and sent it to the police station where it was copied out on the proper form. He held an inquest on the dead body of Ram Dayal Singh. On account of the floods it was difficult to carry the dead body to the thana and the party was delayed and arrived at the thana on the morning of 17th September. The dead body of Ram Dayal Singh was then sent to Sadar where a post mortem examination was performed by Rai Saheb Dr. B.P. Gupta. After investigating the case the police sent up the five appellants for trial. The appellants pleaded not guilty. Four of them denied their presence on the scene of occurrence. Kheoraj Singh, however, gave an entirely different story. According to him, his she buffalo had grazed in the field of the deceased and when he came to know of it he brought the animal to his house and tethered her to peg. The deceased came and untethered the she buffalo from the peg and started with her towards the cattle-pound. At this the appellant had a lathi fight with him. During the scuffle the deceased fell on the ground over a plough-share and was hurt. In the meanwhile Hukmi Singh arrived and attacked the appellant with a lathi and there was a lathi fight between them also. No evidence was produced by the appellants in their defence except the medical officer of the jail who had found marks of a number of injuries on the person of Kheoraj Singh when he was admitted to the jail on 28-9-1945.
3. The first question to be considered in this case is whether the statement of Hukmi Singh said to have been recorded by the Sub-Inspector on arrival in village Damkoda, is admissible as the first information report of the occurrence. It will be remembered that he had already been informed of the occurrence by the ehaukidar while he was in village Samrer. If the statement of the Sub-Inspector is to be believed the chaukidar had also given him the names of the assailants. No doubt the report made by the chaukidar was not recorded by the Sub-Inspector. But that is no reason why the information given to him by the chaukidar should not be regarded as the first information report of the occurrence. According to Section 162, Criminal P.C., no statement made by any person to a police officer in the course of an investigation can be used for any purpose at any enquiry or trial in respect of the offence under investigation at the time when the statement was made except in certain specified circumstances. It is difficult to hold that when the Sub-Inspector on receipt of information from the chaukidar proceeded to village Damboda he did not go there in order to investigate the case. The statement, therefore, made to him by the complainant was made in the course of the investigation which the Sub-Inspector was making in the case and is, therefore, not admissible in view of the provisions of Section 162, Criminal P. C. The learned Sessions Judge has, however, accepted this statement as the first information report of the case and has relied upon the case in Qamrul Hasan v. Emperor ('42) 29 A.I.R. 1942 Oudh. 60. In that case the information given to the police officer was of such a vague and indefinite character that it could not be treated as coming under Section 154, Criminal P.C., so as to make it incumbent upon the investigating officer to start am investigation and it was held that further information given to him in such circumstances may fall within the purview of Section 154. The facts of that case, it would appear, were entirely different. The question is really one of fact and if the circumstances indicate that after receiving some information however incomplete, the police officer had commenced his investigation any subsequent information given to him about the offence by any other person cannot be regarded as the first information report in the case and would; not be admissible under Section 162, Criminal P.C. After a careful consideration of the matter I feel satisfied that the alleged statement made by Hukmi Singh to the investigating officer is not admissible in evidence. If Ex. p-8 is ignored there is no guarantee that the statements made by the prosecution witnesses some time later-implicating the appellants in the crime are true. It will be noted that the investigating officer had ample opportunity to examine all the alleged eye-witnesses in the case on 27th September during the day in the village or during the night while he was waiting to cross the river in a boat. But he examined only Narottam, Jiwan and Hukmi Singh on 17th September and the other eye-witnesses, viz. Dharam Singh, Badshah Singh, Jaswant and Khargi were examined by him a few days later. If the prosecution evidence is to be believed, Dharam Singh and Bad-Bhah Singh near whose chaupals the occurrence had taken place, were the most important witnesses in the case and should have been the first witnesses to be examined by the investigating officer after he had recorded the statement of Hukmi Singh.
4. We have been taken through the entire evidence and it seems to me that the statements of the prosecution witnesses are so full of contradictions and improbabilities that they cannot be accepted as correct. Hukmi Singh in the statement made by him before the investigating officer made no mention of the fact that when the appellants rushed at him and his brother they ran towards their house and were overtaken by them on the chabutra of Badshah Singh. The statement seems to indicate that the occurrence took place in the field itself. Among the eye-witnesses mentioned in this statement the names of Badshah Singh and Dharam Singh do not occur and if the assault had in fact been made upon him and his brother on the chabutra of Badshah Singh it is impossible that their names would have been omitted by him from the statement made before the Sub-Inspector. It is not necessary to refer to all the contradictions that occur in the evidence of Hukmi Singh. In the statement made by him to the Sub-Inspector he stated that the appellants first began to beat his brother Ram Dayal Singh with spears and lathis and that they beat the witness after his brother had been killed by them. But in his present statement he says that both he and his brother were assaulted by them simultaneously. According to the investigating officer, when he arrived in the village the dead body of Ram Dayal Singh was found lying at his own chaupal. In the statement made by Hukmi Singh before the Sub-Inspector he said that he had taken the dead body, of his brother to the chaupal of Bhairon Singh and in his present statement he says that the dead body had not been removed at all and was still lying near Dharam Singh's chabutra when the Sub-Inspector came. Badshah Singh and Dharam Singh have also appeared/as witnesses and say that they had actually witnessed the occurrence, but their names, as I have said before, were not mentioned by Hukmi Singh in his statement before the Sub-Inspector and little reliance can be placed upon the evidence of these witnesses. For, as I have said before, if the crime had actually taken place on the chabutra of Badshab Singh's chaupal, it is impossible that Hukmi Singh would have omitted to mention him and his neighbour Dharam Singh as persons who had witnessed the occurrence in his statement before the Sub-Inspector. Jiwan and Jaswant Singh were treated as hostile witnesses and were allowed to be cross-examined on behalf of the prosecution. Their statements are full of contradictions and they have changed their statements from time to time. I can place no reliance whatsoever upon their evidence. Narottam Singh is the son of the deceased Ram Dayal Singh and his evidence too is full of contradictions. At one place he stated that the eye-witnesses had arrived on the scene of occurrence after he had reached there and had raised an alarm that his father was dead. When questioned again he made it further clear that when he came out of his house his father lay 'unconscious' below the chabutra of Badshah Singh and that Hukmi Singh also lay unconscious near him. He threw a chatai over the dead body of Bam Dayal Singh and then cried out that his father had been killed and Badshah Singh and others arrived on the scene on hearing his cries. If this statement is believed the so-called eye-witnesses produced by the prosecution could not have seen the occur, rence at all. It is impossible to place any reliance whatsoever on evidence of this nature.
5. After a full consideration of the evidence and the circumstances of the case, my opinion is that the evidence produced by the prosecution is wholly insufficient for a conviction of the appellants Moti Singh, Dal Singh, Nanku Singh and Hakim Singh. The case of Kheoraj Singh, however, stands on a different footing. It appears that all the five appellants had absconded from the village immediately after the occurrence. They were subsequently arrested and when Kheoraj Singh was sent to the District Jail on 28-9-1945 three injuries ware found on his person by the Medical Officer of the Jail. In his opinion, the injuries appeared to have been caused about 15 days before he examined the accused and that would correspond very nearly with the date of the present occurrence. Khemraj Singh also admits his presence on the scene of occurrence, although the story as given by him is entirely different from that given by the prosecution. Obviously the story as given by Kheoraj Singh cannot be believed. He has given an extraordinary explanation of the punctured wound that was found on the chest of the deceased. His statement that he assaulted the deceased and his brother Hukmi Singh one after the other in self-defence has not been substantiated by any evidence. I, therefore, feel satisfied that so far as the appellant Kheoraj Singh is concerned, he took part in the assault as a result of which Ram Dayal Singh died and Hukmi Singh received a number of simple injuries. The evidence of the prosecution witnesses, however having been disbelieved it is not possible to say how many other persons had joined Kheoraj Singh in assaulting the deceased and his brother, and in the view that I have taken of the case, it is not possible to uphold the conviction of Kheoraj Singh under Section 148, Penal Code. He is, however guilty under Sections 323 and 304, Penal Code.
6. Notice of enhancement of sentences was also given to the appellants. I have already found four of the appellants not guilty and the question of enhancement of sentences does not arise in that case. In the case of Kheoraj Singh, my opinion is that an enhancement of the sentences passed upon him is not called for and the notice is accordingly discharged. For the reasons given above the appeal of Motisingh, Dal Singh, Nanku Singh and Hakim Singh is alkjwed and their convictions and sentences set aside. They will be forthwith released from jail unless their further detention is required in connection with some other case. The conviction and the sentence passed upon Kheoraj Singh under Section 148, Penal Code, are set aside while his convictions and sentences under Sections 323 and 304, Penal Code, are maintained.
7. I agree and have nothing to add.