Thomas Fredrick Dawson Miller, C.J.

1. In this case Gansa Oraon was tried and convicted of murder and sentenced to death by the Judicial Commissioner of Chota Nagpore, on the 10th of February, last. The proceedings have been referred to this Court under S. 374 of the Code of Criminal Procedure and the convict has appealed.

2. The appellant and his brother, Tikua Oraon, were joint in estate, and occupied the same house in Mauza Bongeloya in the Ranchi District. The appellant was married whilst his brother was single. There had been some dispute between them as to the division of the paddy crops on their land and Tikua endeavoured, but without success, to bring about a partition. The appellant had promised that when Tikua got married, he would agree to a partition of the land.

3. According to the prosecution case they had quarrelled about 7 o'clock on the night of the 15th of December last on the question of the division of the crops, with the result that the appellant picked up a Balua with which he struck his brother on top of the head a severe blow cutting through the scalp and exposing the brain. Two persons are said to have been present and witnessed the occurrence. One of them was Musammat Budhni, the wife of the appellant, the other is Khurloo his cousin.

4. The first intimation which the police received of the occurrence was at 4 p.m. on the 16th of December when Rup Singh, the chaukidar of the village, arrived at the Police Station at Basia. about 10 miles distant from Mauza Bongeloya, and reported to the Sub-Inspector that the same morning the mother of the accused and Tikua had told him that her elder son Gansa Oraon had assaulted his younger brother Tikua the previous evening, whilst they were under the influence of Handia, with a Tangi, and that he had gone to the house and seen Tikua who had blood stained wound on his head, but on asking him who had assaulted him he gave no reply. This report was entered in the police station diary but not signed by the choukidar, nor was it treated by the Sub-Inspector as an information within the meaning of S. 154 of the Criminal Procedure Code. The Sub-Inspector proceeded the same afternoon to Bongeloya and reached the village at about 8 p.m. He found Tikua at the house with a big wound on his head. He was unconcious and unable to speak. He thereupon questioned Musammat Budhni the wife of the appellant, whose statement he took down in writing and obtained her thumb-impression in the presence of two witnesses treating it as what is known as the first information report, which under S. 156, Criminal Procedure Code, would entitle him to hold an investigation. He then proceeded to obtain evidence from other persons with the result that the appellant was arrested on the 17th of December, and on the following day at 9 o'clock in the morning made a confession at the Sub-Jail at Gumla before a Magistrate. The statement made by the appellant at that time was to the following effect:-

There was a division between my brother-Tikua and myself. I struck him with a Balua on his head. We are eight members including my children and Tikua is along with his mother. He picked up a quarrel for his share. I have no motive in saying this. Nobody has tutored me. He took 2 annas while I have one and a half annas of the land.

5. On the following day the 19th of December, Tikua, who had in the meantime been removed to hospital, died of his wound without-having recovered consciousness.

6. When before the Committing Magistrate on the 4th of January the appellant admitted having made the confession to the Magistrate on the 18th December and again admitted that he had struck his brother with a Balua on his head. He added that he drunk. Before the Judicial Commissioner on the 7th of February, when questioned he stated that he did not know if he had beaten Tikua as he had taken Handia (country liquor). He admitted that he had made the statement before mentioned to the Magistrate but added that he made it because he had been beaten by the constable. He said he had no quarrel with his brother about land and explained the evidence given by Khurloo and another witness, Dassin, by saying that they had deposed against him because there was a dispute between himself and them. He also stated that he was on bad terms with Rup Singh the Choukidar, who had threatened to kill him. He further stated that he had enmity with Sukhu Mahton, who had given evidence as to the quarrel between the two brothers.

7. At the trial Khurloo stated that on the evening of the occurrence he took food at the appellant's house and afterwards was given tobacco. He and Gansa and Tikua sat on the verandah facing south, that Gansa struck Tikua but it was a dark night and he did not know what he struck him with. He further stated that nothing was said between Gansa and Tikua, that Gansa struck him silently on the head and Tikua remained sitting. Gausa then went outside and he did not know what happened to the weapon with which Gansa struck him. He said that Mt. Budhni was not with them but in the north facing room. This evidence given by an obviously unwilling witness varied in some material respects from the statement which he had made earlier before the Committing Magistrate and the learned Judicial Commissioner allowed his deposition made on the former occasion to be put in evidence under the provisions of S. 288 of the Criminal Procedure Code. His attention was drawn to his previous statement which was to the following effect.

8. That he went to the accused's house in the evening and was smoking there sitting on the verandah facing east. The accused's wife Mt. Budhni and Tikua were there. Tikua and the accused began to quarrel and he took up his Balua and hit Tikua on the head with it and then ran away out of the house. Tikua stood up and then sat down again. He could not say why the accused struck Tikua but added that the latter had cut paddy of 2 annas on their joint land whilst the accused had cut only 1 1/2 annas. He admitted that he had said before the Magistrate that the brothers began quarrelling and that the accused took up his Balua and hit Tikua on the head with it and added that what he said in the lower Court was true but that it was not true that they quarrelled.

9. Budhni, the appellant's wife, was also called and stated that she did not know how Tikua met his death. She had gone to sleep after her evening meal and only saw Tikua next morning when he was unconscious. He had wound on his head but she did not see how the injury was caused. This witness also had made a statement before the Magistrate which was at variance with her statement given before the learned Judicial Commissioner and her previous statement was allowed to be put in evidence under the provisions of S. 288, Criminal Procedure Code. On that occasion she had stated that her husband and Tikua and Khurloo were on the south verandah watching the fire when her husband and Tikua began to quarrel over the division of the paddy. Her husband told Tikua that he would divide the land after Tikua's marriage and that her husband took Balua which was on the verandah and struck Tikua on the head with it once. She identified the Balua which was in the Court. She admitted making the statement but alleged that she made it because the constable said if she did not, the Magistrate would abuse and beat her. It was proved by the Sub-Inspector that Budhni produced the Balua when he first went to the house on the night of the 16th.

10. This was the principal evidence against the appellant. Another witness Dasain Oraon, who knew the parties and belonged to the same village, stated that last year Tikua called a panchayat for the division of their land but Gansa would not allow any division until Tikua got married, so the panchayat dissolved. On the night of the occurrence Gansa came to his, Dasain's house, and stated that he had done wrong. When asked what wrong he had done, he merely repeated that he had done wrong, and, as he had nothing on the part of his body and it was cold, he asked for covering, which was given, and he went away.

11. The medical evidence showed that there was an incised wound 7 inches long by 1 inch deep on the top of the deceased man's head and that the brain substance was coming out when he was admitted into the hospital. The post-mortem examination showed that the parietal and frontal bones of the skull were clean cut as if by a sharp instrument.

12. The learned Judicial Commissioner was satisfied beyond any reasonable doubt that the appellant was guilty of the charge preferred, although the opinion of the assessors was inconclusive and unsatisfactory, one of the assessors thought it was established that the accused did strike the deceased but that it has not been proved What was the weapon used and he did not think that the accused intended to kill his brother; he thought that he should be sent to jail and not hanged. The other thought it was improbable that a brother would kill his brother, but it might be that the' accused was drunk and struck his brother and the circumstance did not warrant more than imprisonment. It would seem probable, as the learned Judicial Commissioner thought, that the dislike of inflicting a capital sentence was the primary cause of such halting opinion.

13. It was argued before us in appeal that the written statement made to the Sub-Inspector by the appellant's wife on the evening of the 16th ought not to have been admitted in evidence as a first information report. It was pointed out that information having been already given at the Police station earlier by the Choukidar, any statements afterwards taken by the police were taken in the course of an investigation and were inadmissible as evidence under S. 162 of the Criminal Procedure Code. I have no doubt that the statement made at the police station by the Choukidar was information relating to the commission of a cognizable offence within the meaning of S. 154 of the Code. It ought to have been take down in the book kept for that purpose as provided in the section, and whether this was done or not, in the particular circumstances of this case. I think, all further statements taken from the witnesses were taken in the course of the police investigation and that the written statements so taken were inadmissible as evidence under S. 162 of the Code. Circumstances may arise in which information given to the police is of such a vague and indefinite character that it cannot be treated as coming under S. 154 so as to make it incumbent upon the officer in charge of the police station to start an investigation, and he may reasonably require more direct information before doing so, and such further information given to him in such circumstances might not come under the provisions of S. 162. The information referred to in S. 154 appears to me to be something in the nature of a complaint or accusation or at least information of a crime given with the object of putting the police in motion in order to investigate, as distinguished from information obtained by the police when actively investigating a crime. I can also conceive that the information referred to in S. 154 may come from more than one source and more than one such information may be recorded at or about the same time, but once the police have taken active steps to investigate, any written statements taken by them cannot be admissible as evidence as they would come within S. 162. The Sub-Inspector in the present case stated that as the Choukidar did not give him any idea of the seriousness of the wound he thought the case to be non-cognizable, I have no doubt that he acted honestly in coming to this belief but at the same time there can be no doubt that the information disclosed by the Choukidar in the first instance was such as to show that something more than a common assault had been committed. I, therefore, consider that the so-called first information taken from Budhni, the wife of the appellant, ought not to have been placed on the record as it was not admissible in evidence. I observe that the learned Judicial Commissioner does not refer to this statement as evidence in the case and his judgment does not appear to have been in any way influenced by it. I also think that it should be rejected. Had I considered that it in any way influenced the learned Judicial Commissioner in arriving at the conclusion of the appellant's guilt, I should have considered whether it was necessary to order a new trial. But after considering the other evidence in the case, coupled with the appellant's own confession, I feel no reasonable doubt in my mind that the appellant was guilty of murder. It is noticeable that the appellant, when examined in the Sessions Court, did not deny that he had confessed before the Magistrate, nor did he deny that he had beaten Tikua. He pleaded that he did not know whether he had or had not, because he had taken Handia. This was also his defence before the Committing Magistrate in which he admitted the assault upon his brother but said he was drunk. The main witnesses of his guilt were the appellant's wife and a near relation and they were no doubt confronted with a very difficult and trying situation. It is only natural that they should try as far as possible to do what they could for one so nearly related, and the evidence given by both of them before the Committing Magistrate as well as the evidence of Khurloo given at the trial abundantly corroborate the confession made by the appellant and leave no doubt in my mind as to his guilt.

14. It was contended that the statements made before the Committing Magistrate were not admissible as substantive evidence in the case and that a conviction could not be based solely upon such evidence. For this proposition the case of Queen Empress v. Jeochi [1898] 21 All. 111: (1898) A.W.N. 196 was relied upon. In that case there was no evidence before the Court to prove the guilt of the accused except the statements made by some of the witnesses when before the Committing Magistrate, and Mr. Justice Banerjee, as the witnesses had given a diametrically opposite version before the Sessions Judge' refused to convict upon such evidence' In the later case of Emperor v. Dwarka Kurmi [1906] 28 All. 683: (1906) A.W.N. 187: 3 A.L.J. 852: 4 Cr. L.J. 61 the same learned judge, when sitting with Mr. Justice Aikman, explained that in the earlier case he did not intend to hold that such depositions were wholly inadmissible, and having regard to the clear language of S. 288 it could not be held that statements made before the Committing Magistrate could not be admitted in evidence under the section. Again the Madras High Court in Queen Empress v. Dorasami Ayyar [1901] 24 Mad. 414 held that under S. 288 of the Code the Court is not restricted to admitting the evidence of a witness duly taken before the Committing Magistrate merely for the purpose of contradicting that witness when giving evidence in the Sessions Court, but that the section was intended to enable the Court to read the previous evidence as substantive evidence at the trial where, for the purposes of justice, the adoption of such a course was found necessary by the Judge. A similar view was also expressed by the Bombay High Court in the case of Maruti Joti Shinde v. Emperor [1921] 23 Bom. L.R. 820-22 Cr. L.J. 636-63 I.C 332 and, in my opinion, the section clearly intends that the evidence taken before the Committing Magistrate where the witnesses produced are examined at the subsequent trial may be treated as substantive evidence in the case. No doubt it is a matter for the discretion of the Judge whether he thinks that such evidence should be used in the interests of justice. At the same time I consider that many cases may arise in which it would be extremely dangerous to rely upon such evidence where witnesses have proved themselves before the Sessions Judge altogether unworthy of credit. In my opinion, the learned Judicial Commissioner rightly admitted the evidence in this case. It must also be observed that it was not the only evidence which corroborated the appellant's confession. That of Khurloo as given in the Sessions Court was strong corroboration of the fact that the appellant struck his brother with some sort of weapon.

15. The only other point argued before us was that the appellant might not have been aware that the blow, which he struck his brother, was one likely to cause his death or that he might have inflicted the blow under a grave and sudden provocation which deprived him of his self-control. From first to last in this case there is no suggestion of any grave or sudden provocation; indeed the evidence shows that the quarrel between the brothers was not violent or heated or that anything in the nature of a fight arose between them before the act was committed; nor is it possible to believe that any one, using a weapon such as that which was used in this case in inflicting the wound which the deceased man received, could fail to realise that his act was so imminently dangerous that it must in all probability cause death or at least such bodily injury as was likely to cause death; and I can find no circumstance which should lead us to interfere either with the verdict or the sentence. The appeal is accordingly dismissed and the sentence confirmed.

B.K. Mullick, J.

16. I have no doubt that the accused committed culpable homicide by causing the death of his brother Tikua.

17. From the evidence of the accused's cousin, Khurloo Oraon, in the Sessions Court it appears that on Friday the 15th December last he was on a visit to the accused's house and took his evening meal with the accused. The deceased Tikua did not share in the meal but sat afterwards with the witness and Gansa in the verandah of one of the huts. Khurloo says that suddenly Gansa struck Tikua on the head with something which he did not see and that Gansa then went away. But in the Court of the committing Magistrate on the 3rd January 1923 this witness said that Gansa and the deceased began quarrelling, that Gansa then took up his Balua, struck the deceased on the head with it and ran out of the house; he also admitted that the accused's wife Mt. Budhni was sitting in the verandah at that time. In the Sessions Court the witness denies that there was any quarrel; at the same time he asserts that what he said before the Committing Magistrate was true, though he cannot explain why the statement that Gansa and the deceased began quarrelling appears in the Magistrate's record. As to his denial that Mt. Budhni was in the verandah he, when confronted with his statement before the Committing Magistrate, explains that Budhni was sitting in the varandah of another room.

18. The investigating officer, Ghulam Haider, who took the statement of Khurloo on the evening of the 16th December, states that Khurloo corroborated the statement made to him by Mt. Budhni which clearly speaks of a quarrel between Gansa and Tikua with regard the division of the paddy crop. Again at 9 a.m. on the 18th December the accused made a confession before Mr. Sharling, 1st class Magistrate, in the Sub-Jail Gumla, the record of which runs as follows:

Warnings.-I am a Magistrate, I warn you that if you have anything to say, think over, consider and then say. Don't speak false or don't speak any thing tutored by any man.

Question.-What do you wish to say

Answer.-There was a division between my brother Tikua and myself I struck him with a balua on his head. We are 8 members including my children and Tikua is along with his mother. He picked up a quarrel for share, I have no motive in saying this. No body has tutored me. He took two annas while I have 1 1/2 annas of land.

19. On the 4th February the accused was examined by the Committing Magistrate and the record of his statement runs thus:

Q. Did you assault your brother Tikua with Balua on his head

A. Yes, I was drunk.

Q. Did you make this statement (confession Ex.6 and read over to the accused before me).

A. Yes.

20. In these circumstances I do not think that there can be any doubt that the statements made by Khurloo to the Sub-Inspector and to the Committing Magistrate are more correct than those made by him before the Sessions Judge. That he was present and saw the assault is common to both sets of statements, and his denial in the Sessions Court that there was any quarrel is clearly false and fails to explain the cause of the assault.

21. It is curious, however, that nothing was asked from the witness as to what he did after the assault. If he had been questioned on the point he might perhaps have given valuable information as to the conduct of the accused, but, in my opinion, his evidence, sufficiently proves that there was a quarrel between the accused and the deceased in consequence of which the accused inflicted the injury which caused the death of Tikua.

22. The learned Vakil for the accused contends that Khurloo's statement before the Committing Magistrate is not admissible in evidence because the accused did not cross-examine him. The record does not show why the witness was not cross-examined in the Committing Magistrate's Court, but there in no reason for supposing that the accused was deprived of the opportunity of cross-examining the witness. There is nothing to show that he was in any way prevented by the Court from exercising his right of cross-examination.

23. The only other eye-witness is the accused's own wife Mt. Budhni. She too has given evidence in the Sessions Court which is at variance with her evidence before the Committing Magistrate.

24. She states in the Sessions Court that Tikua and the accused took their meals together and that her husband went to bed and that she does not know what happened to Tikua, but that next morning she found Tikua, unconscious in the verandah with a wound on his head.

25. Before the Committing Magistrate on the 3rd January 1923 she admitted that the two brothers began to quarrel about the division of the paddy crop and that her husband struck the deceased on the head with a balua which was in the verandah and that the witness Khurloo was there present. She was the first person examined by the Sub-Inspector, Ghulam Haider, on the 16th December and she then gave a slightly fuller account of the occurrence adding that when she questioned her husband he replied that he had assaulted his brother with the balua thinking it to be a lathi.

26. Ghulam Haider deposes in the Sessions Court that she handed a balua to him saying that it was the weapon with which the assault had been committed.

27. The learned Vakil for the accused objects to the admissibility of Budhni's statement to the Sub-Inspector on the ground that it is a statement made in the course of an investigation and, therefore, inadmissible by reason of S. 162 Cr. P.C. On the other hand the learned Assistant Government Advocate contends that it is an entry in an official book prescribed by S. 154 of the Code and that S. 35 of the Indian Evidence Act applies. To this the learned Vakil rejoins that the real first information in the case i.e. the information upon which the Sub-Inspector took cognizance of the offence and commenced investigation, was the statement of the Chaukidar Rup Singh which was given at the thana at 4 p.m. on the 16th December and which ran as follows:-

Rup Singh, Choukidar of Bangoliya, came and reported that this day morning while he was returning from Harakh Ahir's house of Bagaucha with Harakh, Tikua Oraon's mother of Bangoliya said to him that her elder son Gansa Oraon assaulted his younger brother Tikua last evening while they were under the influence of Handia with a tangi; he went there along with Harakh and saw Tikua Oraon who has got a blood stained wound on his head and asked Tikua as to who assaulted him, but he gave no reply.

28. The Sub-Inspector explains that he did not trust this information and he did not commence the investigation till he had visited the locality and taken the statement of Musammat Budhni.

29. In my opinion, the investigation had already commenced when the statement of Musammat Budhni was recorded, and the learned vakil's contention must be accepted.

30. The word "Information" is not defined, but the definition of "Complaint" throws some light upon its meaning. "Complaint" is defined in S. 4(h) as an allegation made to a Magistrate with a view to his taking action that some person whether known or unknown has committed an offence. In my opinion, an information is a corresponding allegation made to a Police Officer, and this view seems to me to be supported by the language used in S. 112 of the Code of 1872 (Act X of 1872) which provides for the entry in the official register, not of informations but of complaints. I think then that if the allegations made are in the nature of a complaint, the Police Officer must record them as an information under S. 154 Cr. P.C. and the writing will attract the provisions of S. 35 of the Evidence Act and if, as he seems to be entitled to do, the Police Officer should record more than one information relating to a cognizable effence they will all share the privellege of being' exempt from the disability imposed by S. 162 of the Criminal Procedure Code. In every case it is for the Court to decide whether the communication is an information in this technical sense and whether and when the Police investigation had in fact begun.

31. The question then is whether in the present case the investigation had begun before Budhni's statement was recorded by the Sub-Inspector. In my opinion, it had, for the reason that Budhni's statement was not made to the Sub-Inspector with a view to taking action on the contrary from Rup Singh's evidence it is clear that no one in accused's house was willing to come forward as the accuser and I am satisfied from the facts of this case that Budhni's statement was certainly not that of a voluntary informant. It is then clear that although the Choukidar's information was hearsay the Sub-Inspector did in fact take it as an information under S. 154 Cr. P.C and that he had already commenced his investigation when he recorded the statement of Budhni. Therefore the writing (Ext. 1) is not legal evidence.

32. But the exclusion of the document does not affect the decision in this case; for Budhni's deposition before the Committing Magistrate clearly shows that the assault took place on account of a quarrel about land and that she witnessed it. The Sub-Inspector has given evidence under S. 157 of the Indian Evidence Act which corroborates that deposition and her explanation in the Sessions Court that the statement and the deposition were, made under the influence of fear cannot in the circumstances be accepted.

33. It is again to be regretted that no attempt was made either in the Committing Magistrate's Court or in that of the Sessions Judge to elicit from this witness any information as to the accused's movements during the remainder of the night. Rup Singh, however, deposes that when oh the morning of the 16th he went to the accused's house the accused would not allow Tikua to be taken to the Police nor would he go there himself. The only other inmate of the house on the night of occurrence was Musammat Bauni, the mother of the accused, but she states that she came home late, was taken straight away to bed and that it was not till the following morning that she saw the wound on Tikua's head.

34. Realizing the prime importance of reducing the value of the accused's confessions the learned vakil contends that having been retracted in the Sessions Court they themselves require corroboration. Now in the Sessions Court the accused while admitting the two previous statements made to the Magistrate said that he had been beaten by the Police and that having been under "the influence of liquor he knew nothing about the assault. In my opinion, the statement made by the accused to the Committing Magistrate on the 4th January 1923 was not tainted by any coercion or undue influence and it is conclusive corroboration of the confession on the 18th December 1922, it proves satisfactorily that the accused did assault his brother.

35. In his later statement he added the plea of drunkenness but it is clear there is no substance in it. The only direct evidence on this point is that of Budhni and she states that Gansa and the deceased had drunk "Handia" in the morning but not. with their evening meal. The Chaukidrar also states in his information to the Police that the deceased's mother had informed him that the assault had been committed under the influence of drink. Giving the fullest weight to this evidence it goes only to show that the accused had taken alcohol in the course of the day but the onus of proving that he did not commit the act with the intention of causing death or injuries sufficient to cause death is upon him and he has declined to give any explanation or evidence in the Sessions Court. There is no evidence whatsoever that the accused was not in a position to formulate the intention to kill or to cause injuries sufficient to cause death. As to the quarrel there is no evidence of its suddennesss and no provocation has been proved which would reduce the offence to one less than murder.

36. The result is that in my opinion the accused is guilty of murder.

37. As for the motive the evidence of Dasain and Sukhan shows clearly that a dispute had been going on between the deceased and the accused and the deceased wanted a division of the family lands because he wished to marry.

38. Finally a plea has been made for mitigation of sentence, but having regard to the callous manner in which the accused behaved after the occurrence, it is impossible to allow the plea. The evidence of Dasain shows that after the assault the accused came to him and said that he had done wrong and complained that he was feeling cold. He did not explain what he dad done but he borrowed a covering from Dasain which was recovered the next day from the accused's house. Nothing is known as to what he did during the remainder of the night, but it does not appear that he made any attempt to assist Tikua or that he showed any contrition. On the following morning the accused declined to allow the deceased to be taken to the Thana and it was not till the Police arrived that the deceased was despatched to the Hospital at Gumla.

39. In my opinion the sentence of death should be confirmed.