1. His Lordship after discussing facts and evidence, proceeded:
The first piece of evidence which requires consideration is the so-called first information report. There are two fatal objections to its admissibility. In the first place, it was by no means a first information report. Ram Datt and Bisal constables had received information from Ram Singh and Havildar and had deputed Mithu chaukidar to inform the Sub-Inspector. The Sub-Inspector who was the officer-in-charge of the police station received the first information from Mithu chaukidar even though that information was a secondhand one. As the offence complained of was a cognizable one, the officer should have treated that information as the first information Section 154 of the Code of Criminal Procedure clearly contemplates the first information received to be recorded, and not a statement made by a witness during investigation after the Sub-Inspector has actually arrived on the scene and himself seen what has happened. In this connection I may refer to the case of King-Emperor v. Daulat Kunjra (1902) 69 C.W.N. 921
2. In the next place, it seems to me that even if the statement made by Musammat Mohan Kuar be treated as the first information report, such a report by itself is no evidence of the existence of the facts which it mentions. Technically speaking it may be conceded that a first information report taken down by a police officer amounts to an entry in an 1 official record, stating a fact in issue or I relevant fact, and made by a public servant in the discharge of his official duty and in the performance of a duty especially enjoined by law, under which such record, is kept, and therefore falls within the scope of Section 35. But that would sirrrply make it a relevant fact; and all that it would prove would be that Musammat Mohan Kuar made a statement at that early date, implicating the accused and that therefore the present mention of his name is not an afterthought. But the first information report is not a substantive piece of evidence; it can be used merely by way of corroboration or as a contradiction and not any further. Had Musammat Mohan Kuar made a similar statement on oath in Court, the report made by her previously would have been used in evidence to Corroborate her. Or if she had made any con-tradictory statement, the defence might have used the report to contradict her. But when Musammat Mohan Kuar has altogether denied that she made any such report and denied that it was the accused who struck Kindar Singh, any previous statement made by her cannot be admitted in evidence at all. Sections 157 and 158 of the Evidence Act would be altogether inapplicable. This was the view clearly expressed in the case of Queen-Empress v. Bamsukh (1897) A.W.N. 47 where it was held that a report of the commission of an offence made at a thana or even the deposition of a witness previously made would be admissible for the purpose of corroborating him or of throwing doubt on his statement in Court, but would be inadmissible for the purpose of proving that the facts stated in it are correct. The same view has been expressed by the Calcutta High Court. Vide the case of Asfar Sheikh v. King-Emperor (1910) 15 C.W.N. 198 and Autar Singh v. King-Emperor (1913) 17 C.W.N. 1213.
3. The so-called first information report must, therefore, be altogether rejected.
4. His Lordship further discussed the evidence and finally set aside the conviction and sentence passed on the accused.