1. In this case the learned Assistant Sessions Judge of Birbhum has made a reference to this Court under the provisions of Section 307, Criminal P.C., in respect of thirteen accused persons who were placed on their trial before him under Sections 304, 323 and 147, Penal Code. The case was tried with the aid of a jury who gave the prisoners the benefit of the doubt. The learned Judge has disagreed with the verdict of the jury and he has stated that, in his opinion, one of the prisoners should have been found guilty under Section 325, six under Section 323 and all of them under Section 147, Penal Code. In the opinion of the learned Judge, the verdict of the jury was perverse and against the weight of the evidence and his letter of reference discusses the testimony of the prosecution witnesses at some considerable length. Ordinarily, we should have found it necessary to examine the evidence in some detail, but we find on a reference to the charge of the learned Judge that he has misdirected the jury on an important point of law and we think that, if proper directions had been given with regard to this matter, the verdict of the jury might conceivably have been different. In discussing the First Information Report the learned Judge points out that it was lodged by the deceased man, Yunus Mondal. He goes on to say that the First Information Report is not a substantive piece of evidence in this case, but it is the fabric on which the whole prosecution case depends.
2. It is of course true that in a case in which f the first informant is alive and is examined, the First Information Report cannot be regarded as substantive evidence : but the position is different in a case in which the first informant is dead. As pointed out by Sir George Rankin in : AIR1927Cal17 , Azimaddy v. Emperor:
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.... It is usually put in by the prosecution which in any ordinary case has a duty to put 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.
3. The same view appears to have been taken by the Lahore High Court in A.I.R. 1930 Lah. 450 (30) 17 A.I.R. 1930 Lah. 450 : 123 I.C. 120 : 31 Cr.L.J. 475 : 31 P.L.R. 83, Kapur Singh v. Emperor. In that case the learned Judges point out that ordinarily such a report is not substantive evidence, but, if the first informant had died before the matter comes before the Court, it is admissible under Section 32(1), Evidence Act. It follows, therefore, that however important the First Information Report may be either from the point of view of the prosecution or of the defence it should not be admitted in evidence or placed before the jury unless it is admissible under one of the provisions of the Evidence Act. If, however, it is admissible, it should be placed before the jury with proper directions. In the case with which we are now dealing the charge of the learned Judge with regard to the First Information Report was clearly misleading. The jury should not have been told to attribute any importance to it merely because it was the fabric on which the whole prosecution case depended, but they should have been informed that in this case the First Information Report was admissible as a substantive piece of evidence under the provisions of Section 32(1), Evidence Act. At the same time, the jury should have been reminded that the statement in question had not been made on oath nor had it been tested by cross-examination, but that after bearing these points in mind, it would be for the jury to attach to it such weight as they considered necessary. The charge of the learned Judge does not appear to contain any reference to the dying declaration made by the deceased man Yunus Mondal on 6th October 1941. If there were any serious discrepancies between the First Information Report and this dying declaration, the attention of the jury should have been directed to them and also to any serious discrepancies between the First Information Report and the testimony of the principal prosecution witnesses. We think that the jury should have been properly directed with regard to the abovementioned points. We, therefore, set aside the verdict of the jury and direct that the accused persons be retried according to law. The accused persons will continue on the same bail pending retrial.
Mohamad Akram, J.
4. I agree