JUDGMENT Bennet and Bajpai, JJ. - This is an appeal by one Ram Bharosey, a Kahar of Farrukhabad district, against a sentence of death u/s 302 I. P. C. and a reference for confirmation of that sentence which was passed by the learned Sessions Judge of Farrukhabad. The accused is charged with taking part in the murder of Agha Ali Khan of mauza Jhabbupur in Kaimganj circle of Farrukhabad district on the night of the l8th/19th of October, 1932. There is no doubt that on that night Agha Ali Khan was killed in the village by a number of shots, about six or seven in number fired at close range. The medical evidence shows that almost all the important organs are injured and that death was caused by numerous fatal gun shot wounds perforating the heart, stomach, liver and intestines. The medical evidence indicates that there were at least six such shots fired at deceased. A report was made at 7 a. m. on the following morning, 19th October at Kaimganj thana by Govind chaukidar of mauza Lodhaiya. This report names the present accused Ram Bharosay and two others Sukhua Kahar and Hansua Brahman as the assailants and states that there were 3 or 4 other persons whose names were not known. The report sets forth the occurrence in the same form as it has been set forth a year later in October 1932 at the sessions trial. The report states that the chaukidar was going on its rounds in the morning and at a spot between mauza Jhabbupur where the murder occurred and mauza Lodhia he met two men Puran Dhanuk and Buddha Behna. It is to be noted that neither of these persons was an eye-witness of the occurrence as Budhhu, who is an eye-witness, is a Gadaria and not a Behna. The two persons told the chaukidar that between 12 and one o'clock these three persons namely Sukhkhu Kahar, Hansu Brahman and Ram Bharosey, the present accused, killed Agha Ali Khan with guns. Agha Ali Khan had come out of his house at midnight and asked his servants to prepare a smoke and came out again and saw 6 or 7 persons standing. They flashed an electric torch and Agha Ali Khan asked who they were and Budhhu replied that it was he, Sukhlal. Agha Ali Khan had come out of his house at midnight and asked his servants to prepare a smoke and came out again and saw 6 or 7 persons standing. They flashed an electric torch and Agha Ali Khan asked who they were and Budhhu replied that it was he, Sukhlal. Agha Ali Khan knowing that these men were his enemies fled towards the house of the mukhia. The men chased him and when he reached the house of Budhhu Gadaria the men fired at him and killed him. The cause of murder was the enmity with Ram Bharosey and Jalil Khan against Agha Ali Khan. Now one off the point which defence counsel tries to establish is that this first report does not mention the frames of the three eye-witnesses. As regards one of these persons Shyam Lal, it is admitted that he could not come forward and state he was an eye-witness until some month later. Learned Counsel argues that the name of Hira Chikwa and Budhhu Gadaria should have been mentioned in the first report. Now if the chaukidar had gone to the village of Jhabbu Pur and made enquiries on the spot there would be some force in this comment, But the first report shows that the chaukidar met his two informants at a place some distance from a village and he does not say in his report that he went to the village. On the contrary he says towards the end of his report that ;he sent his two informants to the Sub-inspector whom he knew was at Nagaria and that he came to make a report himself. This indicates that he did not go to the village to make enquiries before he went to the thana. This is further confirmed by the last sentence in his report that correct particulars will be known on the spot. 2. Now when the chaukidar was produced at sessions as a witness one year later, he said that before making a report he did go to the spot. He was given the names of the three accused persons in the report by Shyam Lal, Budhhu Gadaria, Abdul Aziz Mukhia and two of four others He was asked, why did he not mention this fact in the first report and he said he made a mistake in not mentioning it in the report. He was given the names of the three accused persons in the report by Shyam Lal, Budhhu Gadaria, Abdul Aziz Mukhia and two of four others He was asked, why did he not mention this fact in the first report and he said he made a mistake in not mentioning it in the report. Now he was not asked whether he was told on the spot that Shyam Lal Kurmi and Budhhu Gadaria were eye-witnesses, but we consider that the statement of chaukidar as to his movements made in the first report is to be accepted in preference to his statements given in evidence a year later. There is no doubt that after making the report the chaukidar went to the village and he was doubtless present when these statements were made by different villagers but we consider that he has merely forgotten in the course of the one year the order in which he received this information. There is no reason to suppose that the two persons who informed the chaukidar, Puran Dhanuk and Budhhu Behna would know who were the eye-witnesses. Their information was derived from what was said by a large crowd of villagers who assembled at the spot when the murder was committed, and it is not probable that they would take the trouble to ascertain who were the eye-witnesses. They, therefore, would be unable to tell the chaukidar even if he had asked them the question. When the Sub-inspector went to the spot he made an enquiry. The Inspector informs us that it was not until the 28th of December, 1931, that Shyam Lal made his statement that he was an eye-witness, and the reason why he did not make his statement was apparently that he was afraid to do so as the Sub-Inspector states. If the defence desires to show that the other two eye-witnesses Hira Chikwa and Budhhu Gadaria did not name the accused Ram Bharosey to the Sub-Inspector on the morning of the 19th of October, 1931, it was open to the defence to proceed in the manner laid down in Section 162 Code of Criminal Procedure, that is, the defence should have applied for copies of statements of those witnesses in the diary and cross-examined the witness to that effect u/s 145 of the Indian Evidence Act. Instead of adopting this course the defence endeavoured to establish a point by asking Budhhu Gadaria one of these eye-witnesses at the end of his cross-examination whether he had mentioned the name of Ram Bharosey to the Darogha. Now this question was not admissible u/s 162 Code of Criminal Procedure, as it is definitely laid down there in regard to the statement made by a person to a police officer nor shall any such statement or any record thereof...be used for any purpose (save as hereinafter provided) at an enquiry or trial in respect of any offence under investigation at the time when such statement was made. 3. The method provided is the method already indicated of obtaining a copy of the statement and using it u/s 145 of the Indian Evidence Act. Section 145 of the Indian Evidence Act provides if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. 4. The contradiction is u/s 155(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. 5. Section 155 therefore shows that in order to use a statement the statement must be proved, that is, the statement must be proved by the person recording it, in this case the Sub-inspector. We do not find in the present record that the statement in question in the diary was put to the Sub-inspector to be proved. Accordingly the defence have not adopted the correct method When the question was asked of Budhhu his attention was not drawn to the statement in the diary. The unfairness of the method adopted by the defence and the uselessness of this method is illustrated well in the present case. Budhhu Gadaria was asked as to what he had said one year previously. He could not be certain of what he said and he replied: I did not mention the name of Bharosey accused to the darogha. I mentioned the name of Ram Bharosey for the first time before the Committing Magistrate. 6. Budhhu Gadaria was asked as to what he had said one year previously. He could not be certain of what he said and he replied: I did not mention the name of Bharosey accused to the darogha. I mentioned the name of Ram Bharosey for the first time before the Committing Magistrate. 6. Now the defence rely on this statement as establishing the fact alleged but as the lower court has shown at page 38 line 7, a persual of the special case diary shows that Budhhu had mentioned Ram Bharosey's name to darogha, the very next day of the murder 7. Had the correct procedure been followed by defence the defence would have seen that the extract of the diary contained the mention of the names of Ram Bharosey in the statement of Budhhu, and accordingly in putting such statement to Budhhu and informing him of what was in it Budhhu could not possibly have failed to say that he did name Ram Bharosey to the darogha. It is of importance to establish the fact that Buddhu does not remember after a year what he may or may not have said on a particular occasion. It is of importance to establish the fact whether Budhhu did fail to name the accused to theklarogha on the morning after the murder. By establishing one point that Budhhu's memory is defective, the, defence have not established the other point that he failed to name the accused. We have dwelt at some length on this point, because we notice that in case after case coming before this Court defence counsel ignore entirely the provisions of Section 162 Code of Criminal Procedure. That Section was amended by the legislature as recently as 1923 by Act XVII of 1923, and the matter surely ought to be familiar to practising lawyers.- The three eye-witnesses are Hira Chikwa, the man who was speaking with Aga Ali Khan the deceased at the time when the assailants came, Budhhu Gadaria who lives at a short distance from the lane and who was sleeping under a chappar at the time the assault took place and Shyam Lal Kurmi whose house is close to the house of Budhhu. Much argument was made before the Sessions Court that these persons were not in a position from which they could see the assault. Much argument was made before the Sessions Court that these persons were not in a position from which they could see the assault. This argument has not been repeated in this Court for the very big reason that the Sessions judge proceeded to the spot and ascertained by local inspection that it was possible for these three witnesses to see the assault from the places where they alleged they were. It has been suggested to us that the witnesses Budhhu and Shyam Lal would not wake up at the sound of shots. We do not think that at all probable. There were altogether, according to Budhhu, 6 gun-shots. That is supported by the medical evidence. The occurrence took place close to the chappar of Budhhu and house of Shyam Lal and they must have awakened. The other man Hira Chikwa was awake at the time. It is true the occurrence took place at night, but the accused Ram Bharosey was a former resident of this village of Jhabbu Pur and he was well known to the witnesses. They were able to see by the light of the shots, and in the case of Hira Chikwa he heard the voice of the assailants. He says that Agha Ali Khan asked who they were and they replied "It is us". 8. Agha Ali Khan then said what were their names. They said they were Sukhwa and Ram Bharosey. Learned Counsel for defence argues that it is improbable that the assailants would give their names. His argument is that if they did not give their names they would run less risk of detection. In the first place it is not shown that the assailants knew that Hira Chikwa was awake and listening. He was apparently engaged in preparing a smoke for Agha Ali Khan at the time, and he was apparently at his own hut. The assailants may not have seen Hira Chikwa but it appears to us that it is probable that these assailants who had enmity against Agha Ali Khan would desire him to know before he died that they were the persons who killed him. Accordingly the statement that they gave their names to him is not prima facie an improbable statement. The assailants were well armed and were present in force. Accordingly the statement that they gave their names to him is not prima facie an improbable statement. The assailants were well armed and were present in force. There is nothing to suggest that they ran away in a hurry or that the witnesses did not have ample time to observe them. It is not a case of hurried shot and hurried departure. It is a case of a fusilade of shots and no hurry in departure. None of the witnesses state that the assailants ran away. I They say they went away. We do not consider that the cross-examination has established any weakness in the evidence of the witnesses in question other than the fact that Shyam Lal Kurmi did not state he was an eye-witness until the 28th of December, 1931, when having told the mukhia he was produced before the Sub-Inspector. 9. The next point in which we will deal is the question of motive for the murder. The present accused had two motives. One was a personal motive. There is a report which is printed at page 9, dated the 22nd of March, 1931, made by the deceased Agha Ali Khan against Mst. Laraiti Natni his mistress and Ram Bharosey, Kahar, the accused, his servant. This report states that Mst. Laraiti had run away with Ram Bharosey and stolen certain property of the deceased. The deceased managed to get Mst. Laraiti back subsequently as is shown by the evidence of the prosecution in this case. The accused then joined the party of the rival leader Jalil Khan. It is shown by evidence that proceedings were taken by the police for security for keeping the peace against the deceased and against Jalil Khan in the autumn of 1931 and orders were passed for security from both these persons. The deceased furnished security Jalil Khan did not furnish a security although apparently he was able to do so, but he preferred to go the Jail instead. This was a strange action on his part and it at once aroused suspicion in the mind of the deceased as to what was his motive. Accordingly on 1st of October, 1931, the deceased made a report in the thana which is printed at page 10. This report sets forth the fact that there were proceedings u/s 107 Code of Criminal Procedure. and that Jalil Khan preferred to go Jail. Accordingly on 1st of October, 1931, the deceased made a report in the thana which is printed at page 10. This report sets forth the fact that there were proceedings u/s 107 Code of Criminal Procedure. and that Jalil Khan preferred to go Jail. The report proceeds: On my return from Fatehgarh I heard a rumour to the effect that Jalil Khan had not deposited security for himself with the object that he would keep himself safe by remaining in jail and would cause an assault to be committed on us by his associate Sukhwa, whom he has been giving every kind of help and protection, and by Ram Bharosey, an associate of Sukhwa. 10. How true was this report is shown by the events which happened within 18 days. The maker of the report Agha Ali Khan was killed by gun fire in his village. The object of Jalil Khan in remaining in jail was that he could not be connected with the offence by abetment or otherwise. We note that this report names Ram Bharosey as one of the adherents of Jalil Khan and that one of the probable assailants. Ram Bharosey therefore had a double motive, the first was the personal motive of having failed to retain Mst. Laraiti who went back to Agha Ali Khan and having been dismissed from the service of Agha Ali Khan and he had the motive of being a follower of Jalil Khan the rival leader in Kaimganj circle. 11. There is a third matter which in our opinion also supports the evidence for the prosecutions This is contained in the statement of the Sub-Inspector to the effect that he challaned Ram Bharosey originally as an absconder. This is shown by the challan charge sheet on page 7 in ,which the sub-inspector asks for proceedings against Ram Bharosey u/s 87 and 88 Code of Criminal Procedure. as a proclaimed absconder and for record of proceedings against him u/s 512 Code of Criminal Procedure. The Sub-inspector states in his evidence that Ram Bharosey could not be found in the village and remained absconding and he was arrested in police circle Kamalganj at a fair of Singi Rampur 7 or 8 months after the murder No explanation has been given of Ram Bharosey as to where he was after the murder. The Sub-inspector states in his evidence that Ram Bharosey could not be found in the village and remained absconding and he was arrested in police circle Kamalganj at a fair of Singi Rampur 7 or 8 months after the murder No explanation has been given of Ram Bharosey as to where he was after the murder. He has stated on page 30 that 4 months before the murder he left his village and went to his father-in-law's village in mauza Mahmudpur thana Kamalganj. He does not say that he continued living in the village of his father-in-law until his arrest. But if he did mean to say so his statement is certainly not supported by the 2 defence witnesses whom he produced from that village, Jwala Kurmi and Narain Kurmi. These persons say that they saw Ram Bharosey at the village of his father-in-law Mahmudpur on a single occasion which coincides with the date of the murder. They do not Say that they saw him in the village after the date. One of them Narain says that he had come to the village only 2 or 3 days before the ceremony. The accused therefore fails to explain where he was during the 7 or 8 months between the murder and his arrest. The evidence therefore for the posecution that the accused was absconding has not been at all rebutted. In this case we have the evidence of 3 eye-witnesses. We have the fact that the accused was named in first report made on morning after the murder. We have the fact that the accused absconded and we have the fact that the accused had a strong motive to commit the murder. Taking these facts into consideration we hold that the conviction of the accused by the lower court u/s 302 I. P. C. for the murder of Agha Ali Khan is correct. 12. We have been addressed by learned Counsel as to the question of sentence. Learned Counsel relies, on the fact that in the vernacular headings given for the statement of accused to the Committing Magistrate and to the Sessions court the age of the accused is entered as 20 years. These statements are made by an accused person and naturally an accused person minimises his age with a view of obtaining some leniency from the courts. These statements are made by an accused person and naturally an accused person minimises his age with a view of obtaining some leniency from the courts. The point was not taken at the Sessions Court that the accused should be dealt with leniently on account of his youth. We find from the report made by the deceased on page 9 that the age of the accused in March 1931 was entered as 24 years. We sent for the accused who was present at this Court during the hearing of the appeal and from our inspection of his personal appearance we consider that he is about 25 years of age. We consider, therefore, that there is nothing in the argument that the accused should be dealt with leniently on account of his youth. The accused is one of the followers of a leader in Kaimganj circle who apparently has a band of dangerous persons for his purposes. We do not think that a person who belongs to such a band can be dealt with leniently on the ground of youth when he is 25 years of age. The accused appears to be of the class of hired assassins. That is a crime which cannot be dealt with leniently in this country. Accordingly, we see no reason to reduce the sentence and we direct that the sentence of death should be carried out according to law.