Harnam Singh, J.
1. Hazura Singh, son of Han Singh, Jat Sikh of village Hebuwana, Tabsil Birsa, aged about 46 years, has been convicted Under Section 302, Penal Code, for the murder of Kheta Singh alias Kheta by firing at him with a pistol on 30th June 1948. Hazura Singh has bye0 sentenced to death. He appeals and the proceedings are before us under chap. 27, Criminal P.C. for the confirmation of the sentence of death imposed upon the appellant.
2. The facts, so far as material are that Mfc. Ajmer Kaur, P.W. s, had married Jahangir Singh, brother of Hazura Singh convict by kerwea and she had given some land of Jahangir Singh to her father Kishan Singh for cultivation on batai, Hazura Singh, however, resented its and asserted his own claim upon which Mt. Ajmer Kaur filed a complaint Under Section 147, Penal Code. In that case Hazura Singh and Sarwan Singh were sentenced to sis months rigorous imprisonment and fine. Hazura Singh filed an appeal against his conviction and sentence and was on bail during the pendency of that appeal when the incident, which has given rise to these proceedings, took place on 30th June 1948.
3. The case states that on 3oth June 194S at about p. m, a marriage party of one Sbamsher Singh son of Jang Singh Jat of Hebnwana left for village Machhana in & procession from village Hebuwana. As this procession appeared to be somewhat attractive the village people came out of their houses to see this procession going. Kheta Singh deceased, Dalip Singh, Kawat Singh, Bhura Singh and Mohan Singh and others took their seats on chabutra of Lai Singh towards the village Phaha, while Hazura Singh accused sat on the-stem of a tree near the chabutra of Ajaib Singh's nohra just opposite to Lai Singh's chabutra across the gali. When the marriage-procession had passed, Hazuia Singh came on Lai Singh's chabutra, and taking out a pistol from his dab fired at Kheta Smgh. The latter fell down on the chabutra. At this stage Rawal Singh shouted to Kithan Singh, father of Kheta, who was sitting towards the gali in front of Lai Singh's house and then Dalip Smgh and Kawat Singh ran towards Dalip Singh's house from where Dalip Singh picked up a gun and riding on a mare followed Hazura Singh to some distance. Hazura Singh, however, took up a position behind a begi tree from where he began to fire shots from his pistol. The pursuit party came back, The report was made at the--police station on the same day at 10 p. m.; the-distance between the police station and the village is seven miles.
4. Dr M. S. Gupta, Assistant Surgeon, Sirsa, performed the post-mortem examination on the dead body of Kheta Singh on 2nd July 1948 at 11 a m. and found the following injuries on his-body : (1) an oval wound of entry 1/2' x 1/3' on the middle of the cheat 2' below the upper end of sternum; the margins were inverted and bruised ; the sternum was pierced through and through under the wound ; (2) a wound of exit 2' x 1' on the left side of back l' from the middle line and 9' below the 7th cervical vertebra. The wound ran traversely across the back. Subcutaneous tissues were echhymosed and margins ragged.
5. On internal examination the doctor found the Bternum fractured under injury NO. I. Sixth and seventh riba were fraotured under injury ho 3. Death in the opinion of the dootor was due to shock and haemorrhage caused by gunshot wound.
6. Rawat Singh, P.W. 2, and Dalip Singh, P.W. 3, have appeared at the trial as eyewitnesses. Mt. Ajmer Kaur was tendered for cross-examination and Kishan Singh P.W. 4 gives the motive for the crime. Bhura Singh and Mohan Singh who are stated to be present at the time of the incident have not been examined at the trial, by either party.
7. Sardar Jhanda Singh, learned Counsel for the appellant, contends that Rawat Singh and Dalip Singh P.Ws., did not witness the incident. He points out that according to the evidence given by Rawat Singh P.W. 2, Hazura Singh =shot at Kheta Singh from a distance of about 9'. The medical evidence does not disclose any -charring on the body of Kheta Singh. The distance between the assailant of Kheta Singh and Kheta Singh could not, therefore, have been 9'. Again Eawat Singh P.W. 2 stated before the Committing Magistrate that the bullet hit Kheta Singh in his book and came out of his chest. Dalip Singh P.W. 3 likewise stated in the Court of the Committing Magistrate that Kheta Singh was fired at on his back. The evidence given by Rawat Singh P.W. 2 and Dalip Singh 'P.W. 3 on this point militates against the medical evidence set out above. Counsel argues that this conflict between the medical evidence and the evidence given by the witnesses cannot be explained except on the hypothesis that the witnesses did not see the incident. Another point an this connection is that Rawat Singh P.W. 2 and Dalip Singh P.W. 3 stated at the trial that after the incident Dalip Singh P.W. 8 ran in pursuit of the accused, Indeed, the prosecution case Is that after the incident Dalip Singh P.W. 8 went to his house, picked up his gun, and riding a mare left in pursuit of the accused. Rawat Singh and Dalip Singh were confronted with the statement that they made during the investigation and it has been brought out that neither Rawat Singh nor Dalip Singh stated before the police that either of them gave a pursuit. On the other hand Rawat Singh is proved to have stated before the police that no one went after Hazura Singh out of fear. On these facta counsel for the appellant rightly arges that it would not be safe to act on the uncorroborated testimony of Rawat Singh, P.W. 2 and Dalip Singh, P. 'W 3.
8. Before leaving this part of the case I notice that the trial Court has used the police statements of Rawat Singh and Dalip Singh, Exs. D-A and D-B, wherein they had stated that Kheta Singh was shot in the chest. Now, it was not open to the trial Court to use the police statements, Ess. D-A and D-B, for the purpose of corroborating the evidence given by the prosecntion witness at the trial. Section 162 (1), Criminal P.C. enacts:
No statement made by an; person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
The proviso to this section enacts that a previous statement falling within this section can be used for the limited purpose under the circumstances specified therein. In order that the proviso might apply, it is essential that (1) the witness must have been called for the prosecution ; (2) the person who uses it is the accused; (3) the statement is used for the purpose of contradicting such witness Under Section 146, Evidence Act; (4) the statement of the witness in question must have been reduced into writing; and (6) the written statement must be proved. If the above conditions are not fulfilled, a statement made to the police in the course of the investigation cannot be proved even though the person who made the statement is dead, unless the statement comes within Section 32, Clause (1), Evidence Act.
9. Now, Section 162, Criminal P.C. provides that the police statement of a witness who has been called for the prosecution can be used by the accused and not by the prosecution and by the accused only for the purpose of contradiating Buch a witness Under Section 145, Evidence Act. In the present case the police statements of Rawat Singh, p, W. 2, and Dalip Singh, P.W. 8, have been used by the prosecution for the purpose of corroborating Rawat Singh and Dalip bingb. Under Section 157, Evidence Act. This is not permissible in law.
10. As stated above the contention raised by the learned Counsel for the appellant is that no reliance can be placed upon uncorroborated testimony of Rawat Singh, P.W. 2, and Dalip Singh, P.W. 8. Rawat Singh is contradicted by medical evidence and also by his statements made before the police and the Court of commitment. He is admittedly related to Kishen Singh in the 4th or 6th degree. Dalip Singh, P.W. 8, is also contradicted by the medical evidence and by his own statement made in the Court of Committing Magistrate. Again, according to his own showing about 7/8 years ago, he had caused injuries to Jahangir Singh, brother of the accused, and was convicted and sentenced to imprisonment.
11. Counsel next contends that the non-production of Bhura Singh and Mohan Singh militates against the truth of the prosecution story. Indeed, the argument raised is that the incident took place at a time when no one was in the vicinity.
12. For all these reasons I do not think it safe to act on the statements of Eawat Singh P.W. 2 and Dalip Singh P.W. 3.
13. Finding, as I do, that the evidence given by Eawat Singh, P w. 2, and Dalip Singh, p.w. 3, cannot be relied upon. 1 allow the appeal and set aside the conviction and sentence of the appellant. He will be set at liberty forthwith. The sentence of death imposed upon him is not confirmed.
14. I agree.