Shiv Dayal, J.
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 blowson 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.
10. Learned counsel maintains that in the absence of proof of individual acts, that is to say, which blow of which accused landed on which part of Barelal, not having been proved, the conviction for individual liability was not possible. And since they have been 'acquitted' of constructive liability under Section 34 of the Penal Code, the convictions have to be set aside. I cannot give effect to this argument. . In my opinion, this case falls properly within the purview of Section 34 of the Penal Code and the learned counsel has been unable to get out of it. As to his legal objection, it is sufficient to cite the decision of their Lordships of the Supreme Court in Srikantiah v. State of Mysore, AIR 1958 SC 672, where it is settled that Section 34 is only a rule of evidence and does not constitute a substantive offence.
An appellate court or a revisional court is entitled to apply Section 34 while maintaining a conviction. It is true, that Section 34 was not applied by the courts below. The petitioners were not convicted of the offence under Section 325 of the Penal Code and in the absence of an appeal against acquittal I cannot convict them of that offence. But I can certainly apply Section 34 as regards their liability for the offence under Section 323 of the Penal Code. It is a misnomer to call 'acquittal of Section 34' inasmuch as Section 34 does not create a substantive offence. I would, therefore alter the conviction of Umrao Singh and Kunwarlal.
11. However, I find that Ghasiram was acquitted of the charge under Section 323 I. P. C. also and in the absence of appeal against it, I cannot convict him of that offence even with the aid of Section 34.
12. As regards sentence I think ends of justice will be met if the punishment of fine is substituted for imprisonment.
13. This revision is partly allowed. UmraoSingh and Kunwarlal are held guilty of the offenceunder Section 323 read with Section 34 I. P. C. Ghasiram'sconviction is maintained. The sentences of all thethree accused are altered and each one of themshall pay a fine of Rupees one hundred. In defaultof payment of fine, Umrao Singh shall suffer rigorousimprisonment for two months; Kunwarlal shallsuffer rigorous imprisonment for 2 months; Ghasiramshall suffer simple imprisonment for two months.