Varma, J.This is a reference u/s 374, Criminal P.C., by the Additional Sessions Judge of Muzaffarpur, in the matter of one Lalji Rai who has been convicted u/s 302, I.P.C., and sentenced to death. Lalji has appealed against his conviction and sentence and the appeal has also been heard along with this reference.

2. Lalji Rai is a resident of the village Rai Kararia which is at a distance of nine miles from the Gobindganj police-station. The deceased who is said to have been killed by the appellant was one Gopal Rai, a brother of the appellant. The appellant has one more brother named Ajodhya Rai who has been examined as prosecution witness 9 in this trial. It appears that these three brothers were living in a house occupying separate sets of rooms with a common courtyard, but they carried on their cultivation jointly even after separation. Last year, in the month of Baisakh, they had grown turmeric which they kept in a ditch; the quantity of the turmeric was measured as fifteen basketfuls. On 14th May 1934, Lalji removed all the turmeric into his room, but later on 21st May 1934 when the appellant Lalji had gone out in a barat party, the other two brothers took away from Laljis room 10 basketfuls of the turmeric. The appellant returned home on the evening of 23rd May and, it is said, that there was a quarrel amongst the three brothers over the turmeric, whereupon, at the instigation of one Jugeswar Pathak, the appellant inflicted a bhala blow on Gopal who died immediately. Ajodhya Rai intervened and tried to snatch away the bhala from the appellant, but only the iron portion of the bhala was separated from the handle, and Ajodhya Rai himself received injuries. Ajodhya Rai and one Daroga Rai then removed Gopals body to the south-facing room of the house. Thereafter Ajodhya started weeping and there came Raghubir Rai a cousin of the brothers. Having heard about the occurrence and seen the dead body of Gopal Rai, Raghubir Rai proceeded to the thana where he lodged an information before the Assistant Sub-Inspector Lachhmi Narain Pandey at 10-30 a.m. on 24th May 1934. After Raghubir Rai had left for the thana a chaukidar, Dost Mohammad (P.W. 1) reached the house of Gopal and stayed there to guard the dead body and over-hearing some conversation, amongst the villagers who had assembled, of an attempt to dispose of the dead body he sent for two other chaukidars, Mahadeo (P.W. 2) and Jangi (P.W. 3), and leaving them in charge of the dead body, Dost Mohammad himself proceeded towards the thana to inform the police about the talk of causing the disappearance of the dead body. When he was a few miles away from the village he heard that Assistant Sub-Inspector Chatura Prasad was in the neighbourhood. He therefore went to Chatura Prasad and gave him the information which was reduced to writing at 1 a.m. on 24th May 1934. The learned Sessions Judge has treated this information lodged by Dost Mohammad, chaukidar, as the first information report in the case and has excluded the information laid by Raghubir Rai, on the ground that the latter information was given later in point of time. He has no doubt relied on the decisions which lay down that an information given after the investigation has commenced is a statement made to a police officer u/s 161, Criminal P.C., and therefore is not to be used in evidence by the prosecution. I do not think that Raghubirs information need have been excluded on this ground as it was not a statement made to a police officer in the course of investigation but was an independent first information report. The Assistant Sub-Inspector Chatura Prasad then reached the place of occurrence at 2-30 a.m., and taking charge of the dead body started investigation. He examined a number of witnesses and while going over the place of occurrence recovered the iron portion of the bhala (Ex. 4) stained with blood and covered with sand. The iron portion of the bhala was identified by Ajodhya Rai as appertaining to the spear used by Lalji Rai in killing Gopal Rai. The accused Lalji Rai disappeared. At about 5 a.m., the Assistant Sub-Inspector Lachhmi Narain Pandey came to the place of occurrence to whom Chatura Prasad made over charge of the case.

3. After holding an inquest Lachhmi Narain Pandey sent the dead body to Motihari for post mortem examination. He took charge of the iron portion of the bhala from Chatura Prasad, and continued investigation till 25th May 1934 when Sub-Inspector N.K. Tewari took charge of the investigation. The Sub-Inspector continued the investigation and recovered five basketfuls of turmeric (Ex. 1) and got a map prepared of the place of occurrence by one Jagdamb Sahay (P.W. 11), and thereafter he made over charge of the case to Sub-Inspector Dhanesh Prasad Varma on 27th May 1934. This Sub-Inspector of Police finding that the eye-witnesses were related to the accused and were interested in him got their statements recorded u/s 164, Criminal P.C., by a Deputy Magistrate, Mr. Qamrul Huda, on 29th May 1934. These witnesses were Gauri Shankar (P.W. 7), son of the deceased, Ajodhya Rai (P.W. 9), brother of the deceased, and Daroga Rai (P.W. 10), a cousin of the deceased. Mt. Darpan (P.W. 8), wife of the deceased, although she came out of her house soon after the occurrence, does not appear to have been an eye-witness of the assault. The accused remained untraced and, therefore, the Sub-Inspector submitted a final report and evidence was recorded u/s 512, Criminal P.C., by another Magistrate, Mr. N.K. Banerji, on 10th August 1934.

4. In the opinion of the Assistant Surgeon, who held the post mortem examination, Gopal Rais death was due to shock and haemorrhage caused by the punctured wound on the chest which could be caused by a sharp weapon like the bhala; and the Chemical Examiner to whom the bhala was sent reported that the stains on it were of human blood. After a lapse of time the accused was arrested in the Nepal territory and produced on 9th April 1935, and ultimately committed to the Court of Session. At the trial all the eye-witnesses resiled from their previous statements and the learned Sessions Judge based the conviction of the accused upon the statements made by the witnesses before the Committing Magistrate, corroborated by their statements recorded under Sections 512 and 164, Criminal P.C. The accused in his examination u/s 342, Criminal P.C., pleaded not guilty to the charge. He admitted that he was separate in mess from his brothers but denied having pierced Gopal Rai with a bhala saying that he was not at home but had gone with a marriage party and from there had gone direct to Nepal where he was arrested by the police. He examined no witnesses in defence.

5. Mr. Sarju Prasad, appearing on behalf of the appellant before us, urges that the statements of the witnesses before the Sessions Judge do not bring the guilt home to the accused, and the statements under Sections 164 and 512, Criminal Procedure Code, were inadmissible in evidence inasmuch as the Magistrate who recorded those statements were not examined and therefore the statements were not duly proved. The learned Advocate further argues that it was not safe to base a conviction upon statements made before the committing Magistrate unless they were corroborated, and that the depositions recorded u/s 512 of the Code could not be utilized as the witnesses were examined in the Sessions Court. So far as the want of proof of the statements recorded under Sections 164 and 512, Criminal Procedure Code is concerned, the argument of the learned Advocate is without force, because provision has been made for such a contingency u/s 80, Evidence Act. The section provides as follows:

Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume that the document is genuine: that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it are true, and that such evidence, statement or confession was duly taken.

6. The statements were recorded during an investigation in which oath could be administered to the witnesses by an officer authorised by law for the purpose and bear the presumption of being genuine. The only question that remains is, whether the identity of the persons who deposed u/s 164 has been established to be the same as of those examined before the Sessions Judge. (After discussing evidence on the point, the judgment proceeded). In this state of the evidence there can be no doubt that the identity of the witnesses who were examined under Sections 164 and 512 is fully established. If any further materials were wanted, there is the order-sheet of the Subdivisional Officer, dated 29th May 1934, to show that Mr. Qamrul Huda examined Ajodhya, Gaurishankar and Daroga who were sent up by the Sub-Inspector for their evidence being recorded u/s 164. On the question whether a conviction could be based upon the statements of the witnesses who have resiled from their previous statements before the committing Magistrate, one has to look into the statements made by the witnesses from time to time. (After discussing evidence, the judgment proceeded). The position therefore is that although before the committing Magistrate almost all these eye-witnesses alleged that Lalji Rai gave a bhala blow to Gopal as a result of which Gopal died, they have resiled from their statements while deposing in the Court of Session. But u/s 288, Criminal Procedure Code, it is clear that a statement made by a witness before a committing Magistrate becomes a substantive piece of evidence if he is examined in the Court of Session; and if the former statement has been modified or resiled from in the Court of Session, as a rule of prudence it would not be safe to base a conviction on the statement made before the committing Magistrate, unless there are circumstances present to indicate that the statement before the committing Magistrate is true and that before the Court of Session is due to circumstances on account of which the witness is not prepared to tell the truth.

7. The learned Additional Sessions Judge has relied upon the case reported in Manar Ali v. Emperor 1934 Cal 124. In our own High Court in Emperor v. Jehal Teli 1925 Pat 51, while considering a number of decisions on the point, Bucknill, J., observed as follows:

I think therefore that the principle is quite clearly settled by this line of cases that unless there is clearly present, besides the evidence given before the Magistrate, evidence which will show that the evidence given before the Magistrate should be preferred to and substituted for that given before the Sessions Judge, the evidence given before the Magistrate cannot be effectively utilized in support of a conviction.

8. This view was acted upon in Mathura Tewari v. Emperor 1929 Pat 343, in which it was held that the previous statement of a witness recorded u/s 164, Criminal P.C. 1898, may be treated as corroboration u/s 157, Evidence Act, 1872, of the witness deposition admitted in evidence u/s 288, Criminal P.C. In this case reliance was placed on Vellaiah Kone v. Emperor 1923 Mad 20, where the wife of the accused while deposing in the Court of Session resiled from her statement before the committing Court which was corroborated by her statement recorded u/s 164, Criminal P.C.; and their Lordships of the Madras High Court accepted the statement made before the committing Magistrate in preference to the statement before the Court of Session and based a conviction of the accused thereon.

9. In this case I have given the evidence of the eye-witnesses in extenso from which it is clear that the statements of Gauri Shankar and Ajodhya before the committing Magistrate prove the prosecution case and those statements are corroborated by the statements of the witnesses recorded under Sections 164 and 512, Criminal P.C. So far as Darogas statement is concerned I am not inclined to attach the same weight to it as to those of Gaurishankar and Ajodhya, inasmuch as in his statement u/s 164 Daroga did not pretend to be an eye-witness of the actual assault. I want to make myself clear on this point, that mere repetition of a statement does not by itself prove its reliability, but when we find from all the circumstances of the case, of which a previous similar statement is also one of the circumstances, that the statement bears the stamp of truthfulness, there is no hesitation in accepting that statement as true. Apart from these, there are other circumstances which corroborate the prosecution story. (The judgment then proceeded after discussing the corroborating evidence). In this state of the evidence I have no hesitation in acting upon the statements of Gaurishankar and Ajodhya and I find it as proved that it was Lalji, the appellant, who fatally assaulted Gopal Rai. The attitude taken up by these witnesses in the Court of Session was clearly with a view to protect the appellant who is one of their own blood. When the shock of Gopals death was fresh in the minds of the witnesses they did not hesitate to come out with the true story, but as time passed their natural affection for their living brother or relative got the better of their feelings for the dead one.

10. The case comes clearly within the mischief of Section 302, I.P.C., and the accused has rightly been convicted of that offence. On the question of sentence however it appears that he had some provocation at the time inasmuch as two of his brothers stood against him and the evidence discloses an altercation between the two parties before an assault. Although the provocation was not such as to take the offence out of the provisions of Section 302, I think that in the circumstances of this case a sentence of transportation for life will meet the ends of justice. I therefore uphold the conviction of the accused but commute the sentence passed on him to one of transportation for life. The reference is discharged and the appeal is allowed to the extent indicated above. I cannot part with this case without remarking that no index has been supplied to us of the different spots shown in the map (Ex. 8) with the result that the map itself was of no assistance to us and we had to refer again and again to the evidence of the plan-drawer (P.W. 11) to understand the map, and still in respect of Point 6 on the map (prominently shown at the bottom of the map as "out of scale") we could not make out what it stood for. There are certain kinds of indices which are regarded as inadmissible, but if the index is of a legitimate nature there is no reason why it should not be exhibited along with the map. In this connection the observations of the learned Judges in Abinash Chandra Bose v. Emperor 1924 Cal 1029 may be usefully referred to. In that case the Sub-Inspector on going to the locality found certain things and their Lordships were of opinion that these matters could be legitimately marked on the map, but unfortunately the Sub-Inspector did not do so; on the other hand, he did mark on the map things which he had not seen for himself, e.g. the place where the first blow was struck, where the second blow was struck and where the third blow was struck. He was not present when the blows were struck, and their Lordships remarked that he should not have shown them on the map. In giving these details, Sanderson, C.J., laid down as follows:

I am of opinion that the person who makes the map ought not to put upon it anything more than what he sees himself. Particulars derived from witnesses examined on the spot should not be noted on the body of the map, but on a separate sheet of paper annexed to the map as an index thereto, the spots being marked as A, B, C, D etc.

11. Similar views have been expressed in Emperor v. Mofizel Peada 1925 Cal 909 , Kalia v. Emperor 1925 Cal 959 and Bhagirathi Chowdhury v. Emperor 1926 Cat 550. I hope that in preparing a map in the future proper care would be exercised in selecting the matter which is to be mentioned in the index of the map.

Rowland, J.

12. I agree.