JUDGMENT 1. This is a reference for confirmation of the sentence of death passed on Daulat Kunjra who has been found by the Sessions Judge guilty of having murdered Sheodeni Kamkar. The evidence which is before us is incomplete, and we think, in the ends of justice, that further evidence should be taken before judgment can properly be pronounced. This evidence may possibly disclose a different case on important points which will require the re-examination of witnesses already examined. It is consequently impossible for us merely to indicate the additional evidence which should be taken and on this deal with the case. We are therefore of opinion that there should be a new trial. In the first place, we have not before us the first information of the offence said to have been given by Biku Chowkidar. Both he and the Sub-Inspector state that it was duly recorded at the police-station. It is important to know what he stated and probably, on the statement made by him, it may be necessary to examine him and possibly other witnesses again. The Sub-Inspector has, by some extraordinary misapprehension of the law, submitted as the first information in the case the statement that he recorded at the hospital when he examined the wounded man who died two days later. This was after he had received the first information from the chowkidar. The Magistrate and the Sessions Judge have apparently both accepted this statement as the first information. In no sense can the statement made by the wounded man be regarded as the first information. The investigation had undoubtedly commenced for the Sub-Inspector had gone to the hospital to see the wounded man and he had done so on the information given by the chowkidar of the offence committed and this was the first information contemplated by sec. 154 of the Code of Criminal Procedure. In the next place, the Sessions Judge has regarded the statement so recorded by the Police Sub-Inspector and attested by certain witnesses as evidence in the case. That writing cannot be regarded as evidence. In order to make it evidence, the course indicated in the case of Empress v. Samiruddin ILR 8 Cal. 211 (1881) should have been followed. In the next place, the Sessions Judge has regarded the statement so recorded by the Police Sub-Inspector and attested by certain witnesses as evidence in the case. That writing cannot be regarded as evidence. In order to make it evidence, the course indicated in the case of Empress v. Samiruddin ILR 8 Cal. 211 (1881) should have been followed. It was for those who heard the statement given to say before the Court what they had heard from the mouth of the wounded man who was dead before the trial and therefore unable then to speak for himself as to the cause of his death, and the witnesses who were present when the statement was made might refresh their memory, if they desired to do so from the statement recorded in their presence and attested by them. Evidence must, therefore, be taken in regard to the actual statement said to have been made by the deceased man in hospital. 2. In the next place, the evidence is imperfect on another point. Information was first given to the chowkidar and to Ramphal, the uncle of the wounded man, by Ramtabal Ray who first discovered him lying wounded outside his house. The chowkidar then brought the native Doctor, in whose service, it would seem, the deceased and the accused both were, to the spot and the evidence goes to show that other persons accompanied them. The Doctor states that amongst these persons was the accused and he mentions two other men. Some of the witnesses examined mention only one of these men, namely, Munshi Habibullah and they state that there were others, Ramtahal says that the two Doctors returned with the chowkidar.--refers to Munshi Habibullah probably as a doctor-- but he was not asked whether there was any one else. Bhiku says that Ramphal and another doctor, and 5 or 6 others whom he cannot name went. Ramphal says that the Babu, that is the Doctor, Habibullah Munshi and others whose names he cannot mention came and that there was also with them Nobin Babu who is so mentioned by the Doctor. But none of these men was asked whether, as stated by the Doctor, the prisoner Daulat Kunjra was amongst those who came at the time. If he was there, it was important to ask them further whether the wounded man saw Daulat Kunjra and, if so, what passed. But none of these men was asked whether, as stated by the Doctor, the prisoner Daulat Kunjra was amongst those who came at the time. If he was there, it was important to ask them further whether the wounded man saw Daulat Kunjra and, if so, what passed. We have, therefore, a statement made by the native Doctor that Daulat Kunjra was brought at once to the spot and an entire absence either of affirmation or contradiction on the part of the other witnesses who were examined on this point. In the last place, there is no evidence to show when and under what circumstances the accused Daulat Kunjra was arrested, and this is, we think, a very important point in this case. We, therefore, direct that the Sessions Judge do hold a new trial in which he should specially take evidence on the points indicated by us.