1. This is a Rule tailing upon the District Magistrate to show cause why the conviction and sentences passed on the petitioner should not be set aside. Eight persons were convicted under Sections 147 and 379, Indian Penal Code. Seven of them were sentenced to three months' rigorous imprisonment. One Abdul Bepari, who was also convicted under Section 325, Indian Penal Code, was sentenced to siX months rigorous imprisonment. All were also bound down to keep the peace for one year.
2. It appears that there was some dispute regarding lands between the accused's party and the complainant's party. The complainant's party had taken some land which had originally been held by the accused's party but had been sold in execution of a decree for arrears of rent. On the day of the occurrence, in the morning, one Safat, who is a brother of the complainant Alimuddin, was said to have been assaulted when he went to plough some of the land so taken. On Safat's complaint, one Salim Sardar was convicted and tried, but we are told that that conviction has subsequently been set aside. The prosecution case is, that on the afternoon of the same day the accused in a body came to some other land of the complaint in respect of which there was no dispute, unto the red two bullocks which were grazing there, for the purpose of pinking up a quarrel and then proceeded to assault the complainant. The petitioner, Abdul Bepari, in the course of the assault, kicked out one of the complainant's teeth. On these facts the petitioners were convicted and sentenced as stated above.
2. In support of this Rule, three points were originally formulated by the learned Vakil, who appears for the petitioners, but he subsequently frankly admitted that two of his points he could not seriously press in view of the learned Judge's finding in the ease. The remaining point was, that what was really the first information in the case had been suppressed, that the person who gave it had not been examined as a witness, that if he had been examined and the information had been produced in Court that would have put a different complexion on what actually happened, and that the petitioners were prejudiced by the course that had been followed.
3. The first information was said to have been given by one Afaz. Afaz has not been examined. Therefore, it is perfectly clear that the information which was given by Afaz could not be treated as evidence in the case. But we are told that there is no evidence that Afaz was present at the occurrence; and, therefore, the conclusion that can reasonably be drawn is that Afaz was not an eye-witness and that any statement which he made to the Police was made on hearsay information. What was treated as the first information in the case was a statement which was made by Alimuddin on the following morning when the Sub Inspector came to the spot to enquire. In regard to that information it is argued that the writing was not evidence, because it was not really the first information in the case and that the proper procedure, if the statement of Alimuddin made to the Sub-Inspector was to be used as evidence, was for the Sub-Inspector to repeat verbally the statement which had been made to him. It is not disputed that, under Section 157 of the Evidence Act, a statement made to a person who is legally competent to investigate the facts can be used to corroborate the statement made by the witness. The objection it, really, a purely technical one, although of course in a criminal case the accused is entitled to every technically that can be raised, because it can be remedied simply by the Police Officer reading out the statement from his record and saying that that was the statement which was made to him. The objection loses its substance when it does not appear that this point was ever taken in Court before the learned Judge, because if the point had been taken the Judge could have at once remedied it by Bailing the Police Officer and verbally taking from him the statement which the Police Officer put in writing. For the information of the Magistrate we may point out that the statement made by Alimuddin to the Police Officer not being the first information as contemplated by Section 154, Criminal Procedure Code, the proper course for him would have been to take a statement from the Police Officer that Alimuddin had made this particular statement to him, and of that statement be could have given evidence from his note.
4. There is really no substance in the rule and fasts being, as I have stated, I think, we ought not to interfere in this matter. The Rule is discharged. The petitioners must surrender to their bail to serve out the remainder of their sentences.
5. I agree.