1. In this case there are 5 appellants. They have been convicted by the learned Sessions Judge of Assam Valley Districts sitting with a jury of seven. There had been a previous trial and the case was sent back by this Court to be re-tried. The jury on this occasion were unanimous.
2. They have found all the appellants guilty under Section 302 read with Section 149, Indian P.C. Three of them have also been found guilty under Section 302 by itself while the other two have been found guilty under Section 324.
3. The fifth appellant, Rasir Haji, is the father of Appellants 1, 3 and 4, Aimaddy, Johifaddy and Rahimaddy. The second appellant, Sayad Ali, is a friend and neighbour.
4. The occurrence took place between 8 and 9 a.m. on the 7th March 1925. According to the prosecution it took place at the S.E. corner of the patta land of one Kimu where it abuts upon some khas land of which Basir and Sayed Ali were wanting to get settlement from Government. According to the defence it took place to begin with the E of Kimu's land and upon the adjacent plot of khas land marked N upon the plan. The prosecution story is that Kimu was erecting a hut at the S.E. corner of his own land when the accused with others came armed with spears and lathis to prevent this, and that when he called certain people who were in the field, an altercation commenced and the accused proceeded to attack Kimu's party. Three people were killed undoubtedly and others injured.
5. The case for the defence, is that the accused were proceeding to erect a hut on the khas land and that the complainant's party attacked them.
6. The individual acts of each accused are not really in doubt. The first appellant killed a man called Alimuddin with a spear. The second appellant killed Kalimuddin and the third killed Mokim in like manner. The fourth appellant, a lad of about 18 years, struck Yaruddin with a spear in the buttock. Basir, who was armed with a ram-dao struck Mukdun and cut his arm. The injuries of Yaruddin and Mukdun amounted only to simple hurt.
7. Three passages in the summing up are objected to by the learned vakil for the appellants and as the first two of these raise questions under Section 162 of the Criminal P.C. I will deal with them first.
8. The occurrence having taken place about 9 a.m. the first information was given at the thana some five miles away at 12-80 p.m. by Abdul Basir P.W. 1. At 2-20 p.m. on the same day the first appellant, Azimaddy, laid an information at another thana accusing the complainant's party.
9. The learned Judge admitted this latter document in evidence. It is Ex. 6. It contains a statement that Baser Haji was beaten but that there was no injury. At the trial it was part of the defence case that Baser had considerable injuries wholly explained by the prosecution evidence. The learned Judge on this point and on others put Azimaddy's information to the jury. It is said that this is contrary to Section 162 of the Code.
10. The other passage to which objection is taken explains itself:
On the other hand against the theory that the posts were in the first place erected by the accused on the land to the east we have Sub-Inspector Prodip Roy Deka's evidence that he found no trace of the erection of a house at the place pointed out to him by the accused Baser Haji, and Sub-Inspector Uday Chandra Sarma also says he found no trace of a house having been erected there though he reached the place at 3 p.m. the next day.
11. This too is said to be contrary to Section 162 of the Code.
12. The learned vakil who appears for the prosecution contends that Section 162 of the Code as it now stands has no application to the statements of accused persons who are on their trial. As regards the first of the two objections other points may arise - viz. whether a first information report is within Section 162 at all and whether if so this particular information laid at 2-30 p.m. was made to a police officer 'in the course of an investigation' begun presumably at 12-30 on receipt of the prior information. Now the effect of Section 162 of the Criminal P.C., as amended in 1923, has been the subject of much doubt and this is creating difficulty in the conduct of trials. There are unreported cases in this Court in which Section 162 has apparently been assumed to apply to statements made by the accused. I find, however, that in the High Courts of Patna, Lahore and Rangoon it has been held that statements by accused are not within the section Emperor v. Nga The Din A.I.R. 1926 Rang. 116; Rannun v. Emperor A.I.R. 1926 Lah. 88; Jagwa Dhanuk v. Emperor A.I.R. 1926 Patna 232. The first of these cases was decided by a Full Bench and the judgments including the dissenting judgment of Heald, J., deal very fully with the arguments pro and con.
13. In my opinion these decisions are right and should be followed in this Court. In this Court it is settled law, Queen-Empress v. Jadab Das  27 Cal. 295, that in spite of the generality of the language of Section 161 of the Code, that section does not apply to an accused. Both the context of Section 162 and its contents point in the same direction. 'Any person' means quivis ex populo. It is unreasonable in view of the special law applicable to the statements of accused persons to the police to refuse to apply the well-established rule 'generalla specialibus non deregant.' A contrary view involves an implied but complete repeal of Section 27 of the Evidence Act. A clear and intelligible purpose can be collected from the section without involving any such consequences, viz., to prevent the statements of witnesses made before the police from being used by the prosecution under Sections 145, 155 and 157 of the Evidence Act which sections are not confined to criminal cases. Lastly, while it is clear that Section 162, though amended in the interests of accused persons, does abridge certain rights of an accused in the matter of evidence, it would seem to require express and compelling language to deprive an accused of what is so often the man-stay of a good defence the right to show that the moment he was challenged he gave the explanation on which he still relies. It is difficult to believe in this as an amendment designed in the interest of accused persons; while on the contrary view, it is comparatively easy to see that the rights of accused persons have been further abridged than may well have been thought necessary for the purpose above-mentioned. As this question has been thrashed out in the cases to which I have referred I prefer to put any further observations in the form of a statement of the law as I understand it.
14. The first information report against the accused is clearly not a statement within the contemplation of Section 162 because it is not made in the course of an investigation. Again Section 154 requires it to be signed : whereas statements within Section 162 are forbidden to be signed even when-recorded in writing. It is usually put in by the prosecution which in any ordinary case has a duty to put it in. But however important First informations may be they do not prove themselves and have to be tendered under one or other of the provisions of the Evidence Act. The usual course is for the prosecution to call the informant and for the first information to be tendered as corroboration under Section 157; but it could also be tendered in a proper case under Section 32(1) as a declaration as to the cause of the informant's death, or as part of the informant's conduct (of the res gestae) under Section 8. Theoretically, the defence could prove the information to impeach the informant's, credit under Section 155 or to contradict him under Section 145. Statements made by third parties to the police in the course of their investigation stand under the Evidence Act as follows : They can be used as corroboration under Section 157 or in contradiction under Section 145 or to impeach credit under. Section 155 provided the person who made the statement is called as a witness. This would apply to the prosecution and to the defence indifferently under the Evidence Act. But Section 162 of the Criminal P.C. enacts first that if such a statement is not recorded in writing it cannot be used in evidence in any circumstance or for either side or for any purpose. This view of the section has been dissented from in one case at least in Madras, but it is in my opinion right and it has been adopted by at least three High Courts: Emperor v. Nga the Din A.I.R. 1926 Rang. 116; Rahha v. Emperor A.I.R. 1928 Lah. 399; Emperor v. Vithu Balu A.I.R. 1924 Bom. 510.
15. Secondly if such a statement has been recorded in writing then it cannot be used for any purpose but one and that by the defence : provided that the person who made it is called as a witness for the prosecution the defence may apply for a copy of the statement and if it be proved may use it under Section 145 of the Evidence Act to contradict that witness.
16. Two overriding considerations have to be noticed in connexion with Section 162 : (1) that the section does not affect any statement as to the cause of death under Section 32(1) of the Evidence Act; (2) that the section is dealing with 'statements'; not with conduct in the sense of Section 8, but with mere statements.
17. It sometimes happens that after the first information has been laid against the accused, a counter-information is laid against the complainant or his party by a member of the accused's party who is not himself an accused. As this comes under Section 154 and must be reduced to writing and signed, it cannot, in my opinion, come within Section 162. Whether it is admissible at the trial of the accused will depend upon the circumstances and must be decided under the Evidence Act. The police cannot of course treat statements as informations unless they are really received as such and come truly and properly within Section 154.
18. Statements made by an accused belong to a class which the Evidence Act calls 'admissions' (Sections 17, 18), and prima facie they are evidence against the maker but not in his favour. 'Confessions' are a sub-species of 'statements' and a species of admissions Sections 24, 25 and 26 of the Evidence Act provide that in criminal cases confessions are irrelevant if they are induced by threat or promise, and are inadmissible as against the accused if made to a police officer, or if made while the accused is in custody (unless made in the presence of a Magistrate). As Section 162 of the Criminal P.C. is only concerned with statements made to a police officer, I need only observe here that broadly speaking a statement made by an accused to a police officer may be proved against him under the Evidence Act if it is not a confession; and even if it is part of a confession it is admissible under Section 27 if a fact is deposed to as discovered in consequence of the information. In my opinion Section 162 of the Criminal P.C. does not disturb this position.
19. In the present case the two objections which I have referred to as made against the summing up of the learned Judge are not sustainable on this construction of Section 162. Both statements are statements by an accused neither is a confession or part of a confession; and one is an information recorded under Section 154.
20. There is, however, a third objection to the summing up which is well-founded. It appears that a complaint to a Magistrate was put in evidence to show that the accused's party had been trying to interfere with certain land in the possession of Mokim and there was other evidence that a similar interference with the rights of others had been attempted by the accused in the case of one Monu Fakir. I will not here consider the course of the case so as to enquire whether either or both pieces of evidence were relevant or were properly admitted at all. There seems in this case to be some reason for saying that they could not have been rejected. But the learned Judge in dealing with that matter says as follows:
This is the information given by Mokim of an occurrence alleged to have taken place three days before this occurrence ( Ex. 4 read). If this information and the evidence that Monu was driven out of the plot (L) is true it would show that Basir Haji's party were capable of taking the aggressive though they were numerically weaker having only two baris containing (according to Kimu) 20 or 30 houses, while in Kimu's samaj there were 25 or 30 baris.
21. Now, it seems to me that it was necessary for the learned Judge, if he let in those two pieces of evidence at all to explain most carefully to the jury that the jury were not entitled to take it that the accused had committed the offences charged because they had previously been found to have attempted to commit similar offences. The learned Judge has not only given no such direction but the direction which he has given must have been taken by the jury as intended to be the contrary; for he says that these previous circumstances would show that Basir Haji's party were capable of being the aggressors. This makes it necessary for us to consider carefully the question whether certain of the charges upon which the appellants have been convicted can be sustained. All the accused were found guilty under Section 302 read with Section 149. The common object alleged was to prevent Kimu from erecting a hut upon his own land or to interfere with his possession. If, therefore, there has been a misdirection going to the question which of these two parties was really the aggressor that misdirection seems to affect vitally any conviction under Section 149.
22. There is another objection to the conviction under Section 149. Apparently in this part of the world the Courts think no more of killing three men in one charge than the accused persons are supposed to do of killing three men in one fight, and the form of charge which has been employed in this case can only be described as a charge of constructive multiple murder. It is clear that the proper way would be to have had 'three separate heads of charge and the law upon this subject was laid down in the case of Nath Karmakar v. Emperor A.I.R. 1922 Cal. 573. It is, however, plain that the three murders were all part of the same series of transactions and it is clear that three separate heads of charge could have been employed in the present case. The decision to which I have just referred as one in which in similar circumstances this Court thought it unsafe to proceed upon the basis of Section 149 and it appears to me that unless this is a case where the Court will go through all the facts and make a new finding for itself, it is not a case in which it is possible for the Court to uphold the conviction against all these appellants under Section 302, read with Section 149. I do not think that it is reasonable or right for us to try this case on the paper-book for ourselves as regards that particular point.
23. Having come to that finding, the next question is as to the consequence of this finding upon the other charges. Three of the accused have been found guilty under Section 302 by itself; but if there be any doubt as to the spot upon which this fight began it is, at any rate, unsafe to say that those three appellants would not have had some case upon the question of private defence. It is quite clear on the facts of this case that they could not justify committing murder in the way they did under any right of private defence and it is, therefore, certain that they must be convicted under Section 304(1). Their other convictions are set aside. We have considered this matter carefully as regards the sentence and we are of opinion that it would be unjust to leave the sentence of transportation for life without substantial reduction and, in our opinion, the proper sentence for us to pass upon those three appellants is the sentence of ten years' rigorous imprisonment under Section 304(1).
24. That leaves the case of Basir Haji and Bahimaddy who is the youngest of the three sons-apparently in the neighbourhood of 18 years of age. They have been convicted under Section 324 and until one settles the question whether there was some right of private defence it is difficult to say that the infliction of simple hurt may not have been justified. In their cases we are, therefore, faced with the alternatives of sending the case back for retrial or setting aside their convictions and refusing to order a retrial. So far as the youngest son Rahimaddy is concerned, as his father and his elder brothers were engaged together upon this land dispute, a reasonable knowledge of human nature leads one to suppose that he had not very much chance of keeping out of it. So far as he is concerned, as he only inflicted a simple hurt, I do not find very much difficulty in setting' aside the conviction against him and refusing to allow him to be retried. I have, however, much more difficulty in the case of the father Basir Haji who is very probably, to put it no higher, the main source of all the trouble. It is, however, I think, important to notice that if this case is tried again at this distance of time, and after two previous trials it is almost inevitable that the third trial would be somewhat unjust. The witnesses must have forgotten much and the third trial would be, it seems to me, of a very difficult and doubtful nature. If I could have found any logical way of finding him guilty under Section 324 I confess I should not have been particularly sorry; but it seems to me that there is no logical way of finding him guilty under Section 324 except by doing what I for one refuse to do, what it would be difficult to do, and what we should have to do in respect of all the appellants, namely, finding for ourselves on the paper-book who was really the aggressive arty and on what exact spot. 23. For these reasons all the convictions of Basir Haji and Rahimaddy will be set aside and, in the circumstances, we do not order a retrial.
25. I agree.