JUDGMENT Desai, J. - This is an appeal by the State from a judgment of the learned Sessions Judge of Fatehpur acquitting the Respondents of the charges under Sections 147, 143 and 302/149, I.P.C. In all 14 persons were put on trial before the learned Sessions Judge on the charges mentioned above and he acquitted all of them. The State has preferred the appeal only against five of them and submitted to the order of acquittal against the others; the evidence against the Respondents is said to be stronger than that against the other acquitted men and hence the distinction made by the State. Eleven of the accused are residents of village Aurei; the remaining three accused with whom we are not concerned in this appeal and whose names are Phuni, Su-raj Prasad and Babu Lal, belong to other villages, though Phuni claims that he also is a resident of village Aurei. The victims of the occurrence are Hanuman Din and Sheo Prasad, both of whom were residents of the same village Aurei. Their connections with other persons, who would be referred to in the judgment, will appear from the following pedigree which has been proved and is not in dispute: 2. All the Respondents are residents of village Orei. Loknath and Bhagirath are brothers. Their sister Rampati was abducted or eloped away on 24th November, 1950, and on the following day Loknath made a report u/s 498 I.P.C. against Jagannath, Ram Manohar and Bhum Prasad, mentioned in the pedigree and others. On 19th August, 1950 a riot was committed. In village Orai and two reports were made about it. One was by Jagdeo Respondent against Hanuman Din, Pattidar, Ram Manohar, Ravi Charan, Bhum Prasad, Puttu Lal and Shiv Prasad mentioned in the pedigree and Triveni Dayal, Debi Dayal, Bans Go-pal etc., in all fifteen persons. The other report was made by Ram Manohar against all the five Respondents and sixteen others. The reports were investigated by the police. On 30th September, 1952, they prosecuted Hanuman Din and Shiv Prasad deceased, Bhum Prasad, Puttu Lal and Jagannath P.Ws. The other report was made by Ram Manohar against all the five Respondents and sixteen others. The reports were investigated by the police. On 30th September, 1952, they prosecuted Hanuman Din and Shiv Prasad deceased, Bhum Prasad, Puttu Lal and Jagannath P.Ws. and twelve others under Sections 147 and 323 I.P.C. The police also on the same day made two reports for proceedings u/s 107 Code of Criminal Procedure, one against the five Respondents and sixteen others and the other against Hanuman Din and Shiv Prasad deceased, Pattidar, Bhum Prasad, Puttu Lal and Jagannath P.Ws. and eleven others including Ram Manohar, Ravi Charan and Tribeni Dayal. The case under Sections 147 and 323 against Hanuman Din etc. was pending in the court of a Judicial Magistrate in Fatehpur. Hanuman Din, Shiv Pd., Bhum Prasad, Suraj Prasad, Puttu Lai, Jagannath and Ravi Gharan appeared in the court and were released on bail. Some of the accused were not arrested and the case was adjourned to 29th December, 1950. So Hanuman Din, Shiv Prasad, Bhum Prasad, Puttu Lal and Jagannath, who had to attend the court, left their house in village Aurei on 29th December, 1950, at about 7.30 A.M. Sushila accompanied them because she required some treatment in Fatehpur for ulcers in her mouth. Ravi Charan also had to attend the court, but he was to reach there independently of Hanumandin etc. In the village Aurei itself they met Ram Autar who was going to his maternal uncle in village Asnagopal Pur via Fatehpur and he joined them. A little ahead they saw Bhagwat Bhat going towards railway station to receive his maternal uncle who was arriving by the train. In front of him were going Debi Dayal and 2-3 other passangers who wanted to catch the train at Rasulabad. The train for Fatehpur was due to arrive at Rasulabad railway station at about 9 A.M. Rasulabad railway station, is two miles from Orei; the way is through fields. When Hanuman Din etc. reached the barley-gram field of Bunde, which is about six furlongs from village Aurei and one mile from the railway station Rasulabad, the accused suddenly came out from the juar field of Suraj Prasad on the east. All of them were armed with lathis except Jagdeo and Loknath Respondents who were armed with pistols. When Hanuman Din etc. reached the barley-gram field of Bunde, which is about six furlongs from village Aurei and one mile from the railway station Rasulabad, the accused suddenly came out from the juar field of Suraj Prasad on the east. All of them were armed with lathis except Jagdeo and Loknath Respondents who were armed with pistols. Jagdeo and Loknath threw the challenge that the lambardar (Hanuman Din was known as the lambardar, being zamindar of the village) would be killed that day and would not be allowed to escape. Hanuman Din at once told Bhum Prasad etc. to run away saying that he being old could not run. Bhum Prasad etc. ran in different directions while Hanuman Din and Shiv Prasad, who were 65 and 60 years old respectively and could not run, were surrounded by the accused and belaboured with lathis. The two Respondents fired two shots from the pistols but without wounding any one. Bhum Prasad, Puttu Lal and Bhagauti shouted for help after running for some distance. When they were threatened by the accused they ran away. Bhum Prasad ran towards Ghasipura in the west, Puttu Lal ran to Luniapurwa more than a mile to the south west, Jagannath and Bhagauti ran to the railway station while Ram Autar and Sushila ran towards the south and ultimately reached their homes. Hanuman Din and Shiv Prasad were knocked down on the ground and more blows with lathis were given to them subsequently. The accused then went away to Aurei. After their departure Bhum Prasad, who was seeing the occurrence from a distance returned to the spot to find Hanuman Din and Shiv Prasad lying wounded in the field of Bunde; Hanuman Din was unconscious while Shiv Prasad was conscious. None off his companions returned to the spot. 3. The station officer of S. Thariyao, within the limits of which the occurrence took place, was to go to Fatehpur on 29th December, 1950; he had to take the train at Rasulabad. Consequently, he accompanied by P.C. Raja Ram, went to the railway station reaching there at about 8 or 8.15 A.M. The train bound for Fatehpur reached Rasulabad railway station at 8.40 A.M. or 9 A.M. according to one witness and at 9.30 A.M., according to another witness. Consequently, he accompanied by P.C. Raja Ram, went to the railway station reaching there at about 8 or 8.15 A.M. The train bound for Fatehpur reached Rasulabad railway station at 8.40 A.M. or 9 A.M. according to one witness and at 9.30 A.M., according to another witness. As soon as the train arrived at the railway station, the station officer heard from some people, whose names he and P.C. Raja Ram did not know, but who were subsequently discovered by P.C. Raja Ram to be residents of village Sathon, that a riot had taken place between villages Aurei and Tiksaria, that Hanuman Din had been assaulted and that shots were fired. Jagannath arriving at the station went to the Assistant Station Master on duty and handed over to him a telegram to be sent to the District Magistrate and the Superintendent of Police, Fatehpur. The telegram was to the effect that Hanuman was shot dead by Jagdeo, Loknath and Sukhnandan Respondents, that Shiv Prasad was belaboured by them and Shivbali Respondent, Ram Prasad, Babu Lal, Shiv Kumar and others and that a dacoity was being committed in the house of Triveni Dayal. The telegram was despatched at 10-30. A.M. The station officer and the constable instead of going to Fatehpur as they originally intended to do, left at once for the spot. On the way, they learnt that the rioters had gone to village Aurei and entered the houses of Triveni Dayal and others. They reached the spot where Shiv Prasad and Hanuman Din were lying injured and Bhum Prasad was sitting in a grove at some distance. Hanuman Din was not in his senses and was growning with pain, while Shiv Prasad was conscious and was made by the station officer and the constable to sit up. The station officer had not learnt the names of the rioters either at the railway station or on his way to the spot. The station officer asked Shiv Prasad about the assailants, but he did not give him any reply. Bhum Prasad told him that he was an eyewitness of the assault but though questioned, did not tell him the names of the assailants. The station officer preceded by the constable went to village Aurei but they did not find any person in the village. Bhum Prasad told him that he was an eyewitness of the assault but though questioned, did not tell him the names of the assailants. The station officer preceded by the constable went to village Aurei but they did not find any person in the village. The station officer examined the houses of Tribeni Dayal and Bans Gopal and found property lying scattered about and boxes broken open. He sent a cart from the village to the spot. The cart was taken by Majid and Gur Narain, who is brother-in-law of Ram Manohar. As Hanuman Din was being put on the cart he died. The station officer and the constable reached there. Shiv Prasad also was put on the cart and it was taken by Bhum Prasad to the village. The cart was sent from the village to the police station, while Bhum Prasad stopped in the village to tell people about the occurrence. He left for the police station half an hour later on foot. At the police station, there was no police officer present; as the deadbody of Hanuman Din had been sent to the police station and as inquest had to be performed, the station officer accompanied by the constable went from the spot to the police station on cycles. They reached the police station which is at a distance of four miles just when the cart was reaching there. They also met Ravi Charan there. At the police station at 12 noon, Shiv Prasad himself dictated the first information report against the five Respondents and 15-20 unnamed persons. A case was registered and the station officer started investigation. He took down Shiv Prasad's statement u/s 161 Code of Criminal Procedure at 1 P.M.; in that statement, he corroborated the report lodged by him and added that he had been living with Hanuman Din since long, that he, Hanuman Din and others were going to Fatehpur to attend court, that he did not know what happened to Sushila, whom he was taking to her father for treatment and that the police should trace her out. Afterwards, he was sent to hospital for treatment, but he died at dusk before he could reach the hospital. Puttu Lal remained in Luniapurwa up to 4 or 4-30 P.M. and then returned to Aurei which is less than a mile from there. Afterwards, he was sent to hospital for treatment, but he died at dusk before he could reach the hospital. Puttu Lal remained in Luniapurwa up to 4 or 4-30 P.M. and then returned to Aurei which is less than a mile from there. Bhagwati Prasad returned home from the railway station at 11 A.M. Jagannath also returned home from the railway station in the afternoon. 4. In the field of Bunde, the station officer found blood on the ground. Near the place where Hanuman Din was found, he found a lead bullet. He searched for the Respondents and found them all absconding; he reported for coercive measures against them and their property was attached. He carried on the investigation upto 31st December, 1950. On 31st December 1950, the Deputy Superintendent of Police passed an order directing the Circle Inspector to take over the investigation of the case in his hands and so from 1st January 1951 the investigation was done by the Circle Inspector; he carried out the investigation not only into the report of Sheo Prasad but also into the alleged dacoity in the bouse of Tribeni Dayal. Subsequently the accused were prosecuted. 5. The prosecution examined Bhum Prasad, Puttu Lal, Bhagwati Prasad, Shushila, Ram Autar, Jagannath, Sukhnandan, the station officer Raghuraj Singh, the head constable Raja Ram, the Circle Inspector and Suraj Prasad. The first six witnesses gave evidence as eye-witnesses fully supporting the prosecution case as set out above. They deposed that as they were going to the railway station, they saw Hanuman Din and Sheo Prasad being attacked with lathis by the Respondents and several others, and that Jagan Nath and Loknath Respondents were armed with pistols. The first six witnesses gave evidence as eye-witnesses fully supporting the prosecution case as set out above. They deposed that as they were going to the railway station, they saw Hanuman Din and Sheo Prasad being attacked with lathis by the Respondents and several others, and that Jagan Nath and Loknath Respondents were armed with pistols. Bhum Prasad stated about the arrival of the station officer and the head constable from the railway station, Hanumandin's dying as he was placed on a cart and his going to the police station and arriving there just after the report had been lodged by Sheo Prasad, The station officer and the head constable stated that on hearing at the railway station that a riot had taken place between village Tikasria and Aurei in which Hanuman Din had been assaulted and guns had been fired they left for the spot on cycles, that at the spot they found Sheo Prasad and Hanuman Din lying injured and Bhum Prasad sitting at some distance from them, that Hanuman Din was unconscious while Sheo Prasad was in his senses, that the head constable was sent from the spot to the village, that the station officer followed him subsequently and that Hanuman Din died as he was being put in a cart. The station officer further stated that on receiving the information he went to the police station because there was no officer there, that the report was lodged by Sheo Prasad in his presence at 12 midday, that at 1 P.M. he took down Sheo Prasad's dying declaration in his diary and that he reached the spot again at 5 P.M. for investigation. Suraj Prasad went from Kanpur to Fatehpur on 29th December 1950; his train reached there shortly before the train from Rasulabad. He waited at the railway station to receive Hanuman Din etc., who were expected to reach Fatehpur by that train. Suraj Prasad went from Kanpur to Fatehpur on 29th December 1950; his train reached there shortly before the train from Rasulabad. He waited at the railway station to receive Hanuman Din etc., who were expected to reach Fatehpur by that train. He deposed that when the train arrived he was informed by Raj Bahadur, Mahabali and a third man, whose name he did not know, all belonging to village Sahto, that Hanuman Din and Sheo Prasad had been shot at and assaulted with lathis by a number of persons, that they did not tell him the names of the assailants and he also did not inquire about their names and that he obtained a police escort from the Superintendent of Police and reached home the same day. Jagan Nath deposed that he sent a telegram from the railway station to the District Magistrate and the Superintendent of Police, Fatehpur, about the attack on Hanuman Din and Sheo Prasad and the dacoity in the house of Tribeni Dayal. Sukhnandan deposed that on 29th December 1950 in the morning he saw 10-12 men going towards the Rasulabad railway station, that among them were Loknath and Jagdeo Respondents and that one hour later he heard that Hanuman Din and Sheo Prasad had been killed. He added that all the men had covered their bodies including faces. 6. The post mortem examination on the dead bodies of Hanuman Din and Sheo Prasad had been done on 30th December 1950 between 2 and 4 P.M. Hanuman Din had ten injuries, while Sheo Prasad had 18, all caused with blunt weapons. Hanuman Din had injuries on the head and the face, and the bones of his face were fractured; Sheo Prasad had injuries on the chest, the legs, the hands and the shoulder. Both died on account of shock and haemorrhage and in the opinion of the doctor the death of Hanuman Din took place on 29th December 1950 at about 8 A.M. as is the prosecution case. 7. All the accused pleaded not guilty and denied the occurrence. All the Respondents pleaded alibi. They also pleaded enmity with the police. They did not examine any witness in defence. 8. 7. All the accused pleaded not guilty and denied the occurrence. All the Respondents pleaded alibi. They also pleaded enmity with the police. They did not examine any witness in defence. 8. That Hanuman Din and Sheo Prasad had been attacked in the morning 29th December 1950 with lathis, that they died on account of the injuries received by them and that the injuries were inflicted upon them with a homicidal intention cannot be disputed; there is ample evidence to prove those facts and there existed no reason to disbelieve it. Nor has the learned Sessions Judge disbelieved it. He disbelieved the evidence of the six eyewitnesses that the injuries were inflicted by the Respondents and others on account of several facts. The most important of them is that Sheo Prasad and Bhum Prasad did not disclose the names of the assailants to the station officer and the head constable when they reached the spot from the railway station. Sheo Prasad was undoubtedly conscious and speaking; Bhum Prasad admitted this fact. But neither he nor Bhum Prasad disclosed the name of a single assailant to the station officer in spite of his questioning them; to this effect is the evidence of the station officer. He was not cross-examined on this point and there is no reason to think that he made a false statement in this respect. The investigation was certainly taken away from his hands by the Deputy Superintendent of Police on a complaint by Ravi Charan or Suraj Prasad, but it does not show that the station officer's statement that Sheo Prasad and Bhum Prasad did not tell him the names of their assailants was false. It is not explained why he should have espoused the cause of the Respondents from the very start. Bhum Prasad stated that he and Sheo Prasad both had given the names of the assailants to the station officer but he is contradicted, as regards Sheo Prasad's giving out the names, by his earlier statement in the court of the committing Magistrate to the effect that he did not give details of the occurrence. Bhum Prasad has not given evidence in a convincing manner; he has tried to conceal facts and the learned Sessions Judge cannot be said to have been wrong in disbelieving the statement of Bhum Prasad and believing that of the station officer. Bhum Prasad has not given evidence in a convincing manner; he has tried to conceal facts and the learned Sessions Judge cannot be said to have been wrong in disbelieving the statement of Bhum Prasad and believing that of the station officer. The head constable was not questioned on this matter by either party. The failure (or refusal) of Sheo Prasad and Bhum Prasad to (sic) form the station officer who had committed the attack on Hanuman Din and Sheo Prasad undoubtedly raises a very serious doubt about complicity of all the accused in the attack. 9. Sri J.R. Bhatt realised the significance of the failure of Bhum Prasad and Sheo Prasad to name their assailants to the station officer. He contended that no evidence about the failure could be adduced at all because the fact that Bhum Prasad and Sheo Prasad did not disclose the names of their assailants to the station officer was not a relevant fact and in any case was not admissible in evidence, being hit by the provisions of Section 162 of the Code of Criminal Procedure. Section 162 bars evidence of any statement made to a police officer during an investigation and it was contended that the station officer embarked upon investigation into the attack on Sheo Prasad and Hanuman Din on receipt of the information about the attack at the railway station. On the other hand, it was contended on behalf of the Respondents that the investigation had not started at all, that the information that the station officer had received at the railway station was too vague to amount to information within the meaning of Section 154 of the Code of Criminal Procedure and that the inquiry that the station officer made of Sheo Prasad and Bhum Prasad was, not an investigation within the meaning of Section 156 of the Code of Criminal Procedure, but some sort of a preliminary inquiry with a view to have definite information. It was also contended that what Section 162 bars is evidence about a statement actually made in the course of an investigation and no evidence about omission or failure to say something during the investigation. It was also contended that what Section 162 bars is evidence about a statement actually made in the course of an investigation and no evidence about omission or failure to say something during the investigation. In other words, it was argued that, while the accused cannot prove that a witness made a certain statement in the course of an investigation (except to contradict him), it can be proved that he did not make a certain statement. Further it was contended that the fact that neither Bhum Prasad nor Sheo Prasad disclosed the assailant's names to the investigating officer was a relevant fact under Sections 8, 9 or 11(2) of the Evidence Act. 10. What is popularly known as a "first information report", or a "report", is nothing but "information relating to the commission of a cognizable offence" mentioned in Section 154. Every information relating to the commission of a cognizable offence must be reduced to writing, if it is not already in written form, and a substance of it must be entered in a book kept at the police station. This is the substance of Section 154 of the Code. It does not prescribe the contents of the information or the form in which it should be given or its essential ingredients; so long as a person informs the officer-in-charge of a police station that a cognizable offence has been committed, he gives him information as contemplated by Section 154 and it is the duty of the station officer to take the action mentioned in Sections 154 etc. Neither is it essential to mention in the information when exactly the offence was committed nor is it essential to mention by whom it was committed or in what circumstances. The object behind the investigation itself is to ascertain these matter it is for the station officer to find out by investigation whether the offence was committed at all, and if it was, by whom and in what circumstances. The informer may aid him by seating in the information by whom and in what circumstances the offence was committed but the law does not impose upon him any obligation to do so. In the present case the investigating officer heard at the railway station that a riot had been committed and Hanuman Din shot at. The informer may aid him by seating in the information by whom and in what circumstances the offence was committed but the law does not impose upon him any obligation to do so. In the present case the investigating officer heard at the railway station that a riot had been committed and Hanuman Din shot at. Rioting and shooting at a person with an intention to kill him are both cognizable offences; thus the station officer was informed at the railway station that cognizable offences had been committed and the information amounted to a first information report or a report. Since it was an oral information, the station officer was required to reduce it to writing, but his failure to do so did not mean that the information was not an information contemplated by Section 154. It is a matter of law whether the information was such an information or not and it was not open to the station officer to treat it as such or not according to his discretion. He left the railway station at once and on the way he got further information about a dacoity being committed in the house of Tribeni Dayal. He went to the spot and from there to the village. It appears that from the village he again went to the spot on hearing about the death of Hanuman Din and from there returned to the police station where Sheo Prasad made a report that was treated as information within the meaning of Section 154 of the Code. The station officer and the head constable, who accompanied him, did many acts between their leaving the railway station and the lodging of the report of Sheo Prasad and those acts amount to investigation. There is no provision in the Code for any preliminary inquiry prior to investigation or prior to the lodging of the information within the meaning of Section 154. From the information received at the railway station the station officer had reason to suspect the commission of cognizable offences and proceeded in person to the spot; that was exactly what he was required to do u/s 157 of the Code. While it may not be said that he commenced investigation at the moment when he left the railway station, there can be little doubt that he commenced investigation the moment he questioned Sheo Prasad and Bhum Prasad about the attack. While it may not be said that he commenced investigation at the moment when he left the railway station, there can be little doubt that he commenced investigation the moment he questioned Sheo Prasad and Bhum Prasad about the attack. That was the first step taken by him in investigation. He did not do anything else at the spot but went to the village in search of the culprits who were said to have gone to the village to commit dacoity in the house of Tribeni Dayal this going in pursuit of the culprits could have been nothing but investigation. In the village he inspected the houses of Tribeni Dayal and Bansgopal and found signs of plunder in them; this also was investigation. His statement is that on receiving the news of Hanuman Din's death he went to the police station direct accompanied by H.C. Raja Ram. But the statement of H.C. Raja Ram is quite contrary; he stated that he and the station officer both went back to the spot from the village, that the station officer prepared a site plan of the locality with the assistance of Bhum Prasad and that subsequently he and the station officer returned to the police station. He was quite definite in stating that he and the station officer had gone back to the spot and not gone direct from the village to the police station. There was no reason for him at all to tell a falsehood in this respect and he does not appear to have made the statement under any mistake because he was so definite about it and repeated it. The station officer admitted that Bhum Prasad was present at the time when he prepared the site plan but stated that it was prepared in the evening after his return from the police station to the spot. Bhum Prasad stated that he did not return from the police station to the village; instead he went with the corpse of Hanuman Din to Fatehpur. Consequently Bhum Prasad was not available at the spot in the evening of the day and could not have helped the station officer in preparing the site plan. I think the true statement is that of H.C. Raja Ram. Consequently Bhum Prasad was not available at the spot in the evening of the day and could not have helped the station officer in preparing the site plan. I think the true statement is that of H.C. Raja Ram. Probably the station officer thought that it would be illegal to prepare a site plan before a report was lodged at the police station and so concealed the facts of his going from the village to the spot and of preparing the site plan then. He had to go to the police station in order to hold an inquest; he had no work to do at the police station so long as the corpse of Hanuman Din did not reach there. The corpse went in a cart whereas the station officer (and the head constable) were to go to the police station on cycles. He had, therefore, some time to spare after despatching the cart loaded with the corpse of Hanuman Din to the police station and he seems to have utilized that time in preparing a site plan which he had to prepare in any case. In the site plan the grove, in which Bhum Prasad is said to have taken shelter and from where he is said to have seen the assailants striking Hanuman Din and Sheo Prasad, is shown, but not other places from where other witnesses saw the occurrence. This lends some support to the statement of the head constable that the site plan was prepared before the station officer returned to the police station; as only Bhum Prasad was there when the site plan was prepared, the places from where the other witnesses saw the occurrence could not be shown in the site plan. Preparation of a site plan is a part of an investigation. It seems to me that the station officer commenced investigation by making an inquiry from Sheo Prasad and Bhum Prasad. In Emp. Preparation of a site plan is a part of an investigation. It seems to me that the station officer commenced investigation by making an inquiry from Sheo Prasad and Bhum Prasad. In Emp. v. Moti Singh ILR 1948 All 119 a chaukidar, who was not an eye-witness of a cognizable offence, gave information to a police officer in a neighbouring village and the police officer at once went to the spot and took a written report from the victim of the occurrence and it was held that the report of the victim was not a first information report but was a statement made in the course of the investigation and, therefore, hit by the provisions of Section 162 of the Code. The fact that the police officer had not reduced the chaukidar's, information to writing was held to be of no consequence. The chaukidar had given to him the names of the culprits, but that does not seem to be the basis of the court's decision that the information was the information contemplated by Section 154 of the Code. Harish Chandra, J., with whom Mathur, J. agreed observed: It is difficult to hold that when the Sub-Inspector on receipt of information from the chaukidar proceeded to village Damkoda he did not go there in order to investigate the case.... The question is really one of fact and if the circumstances indicate that after receiving some information however incomplete the police officer had commenced his investigation any subsequent information given to him about the offence by any other person cannot be regarded as the first information report in the case and would not be admissible u/s 162 of the Code." In Bhondu v. Rex A.W.R. 1949 (H.C.) 265 a report was lodged at the police station, the station officer went to the spot for investigation, and as soon as he reach ed the village he was given a list of the stolen property and it was held that the list was not a statement made in the course of an investigation but was a part of the first information report itself and, therefore, admissible in evidence for corroboration. The case of Moti Singh ILR 1948 All 119 was distinguished on the grounds that the statement made by the victim to the police officer could not properly be treated as a part of the first information report because the information given by the chaukidar was complete by itself and that there is a vital difference between a statement and a mere list of stolen property. The precise information given by the chaukidar to the police officer in the case of Moti Singh ILR 1948 All 119 is not known. With great respect to the learned Judges, I do not understand the relevancy of the question whether an information given u/s 154 of the Code is complete or not. So long as it is an information about the commission of a cognizable offence it is all the information that is required to be given u/s 154 and, as I have shown above, there cannot arise any question of its being incomplete. I also do not agree that there is any difference between a statement and a list of stolen property. A list of stolen property is nothing but a statement in writing about the property carried away by thieves. Section 162 bars evidence of all statements, whether made orally and reduced to writing or made in writing. The learned Judges also relied upon the fact that the first thing that the station officer did on reaching the spot was to take the list of stolen property from the victim. It may be that till then he had not done any investigation, but it does not follow that taking the list itself was not a part of the investigation. The very first thing that a police officer does will be a part of the investigation, if he commences investigation by doing that act. In my opinion, it was irrelevant to consider whether the station officer received the list as the very first act in the investigation; just as the very first statement recorded by him could not be said to be preliminary to the investigation merely because it was the very first act done by him, so also the receipt of the list from the victim could not be said to be preliminary to the investigation merely because prior to it he had not done any act of investigation. I agree with the learned Judges that occasionally some time may elapse between the first information report and the first act of investigation; but the investigation may also start immediately on the lodging of the first information report, as when the station officer starts examining the informer at the police station. The observation on page 366 that if during the interval something, which ultimately be considered to be information supplementary to the first information, is given to the investigation officer, "it need not necessarily be considered to be a statement made during the course of investigation", suggests that in some cases the information, though supplementary to the first information, would amount to a statement made during the course of investigation; no light is thrown on the question when it would and when it would not. Really the law, as contained in the Code of Criminal Procedure, makes no distinction between one supplementary information and another supplementary information. The whole concept that an information, though fulfilling the requirements of Section 154 of the Code, requires to be supplemented is erroneous and unwarranted by the law regarding first information report which is all contained in Section 154. No reference was made to Dr. Jainand v. Rex A.W.R. 1949 (H.C.) (sic) which was decided by another Bench a few days previously. The facts in that case were that the discovery of an unidentified corpse from a drain was reported by a chaukidar at the police station, that thereupon the station officer went to the spot and took the corpse in his possession, that three days later a woman went to the police station and made a statement that the corpse was of her husband and that he had been killed by the accused and it was held that the statement was not a first information report and that the first information report had already been made by the chaukidar whereupon investigation had been commenced by the station officer by recovering the corpse and other articles and sending the corpse for post mortem examination. The learned Judges relied upon Emperor v. Moti Singh ILR 1948 All 119. It is hard to distinguish the facts of that case from the facts of the cases before us. The learned Judges relied upon Emperor v. Moti Singh ILR 1948 All 119. It is hard to distinguish the facts of that case from the facts of the cases before us. In Qamrul Hasan v. Emperor A.W.R. 1941 (C.C.) 322 a Maharajkumar passing by a village saw it set on fire and gave information about it to the Superintendent of Police who went to the village, subsequently the station officer reached there and recorded the statement of a victim and it was held that the statement was a first information report and not a statement made in the course of investigation. The Superintendent of Police had not done any investigation. It is also not known what was exactly the information given by the Maharajkumar to the Superintendent of Police. The station officer had received no information at all and when he went, he went to the village on being sent for by the Superintendent of Police he did not go there for any investigation. If the information that the Superintendent of Police had received was not one relating to the commission of a cognizable offence, it did not attract the provisions of Section 154 of the Code of Criminal Procedure and the statement made by the victim could not be said to have been made by him in the course of investigation. In the present case I agree with Sri J.R. Bhatt that the station officer commenced investigation when he inquired about the assailants from Sheo Prasad and Bhum Prasad. 11. Sheo Prasad made no statement at all to the station officer; the evidence is that Bhum Prasad stated to him that he was an eye-witness of the assault, but his statement was not reduced to writing. In the case of Sheo Prasad there is absolutely no question of Section 162 of the Code barring any evidence of his statement. As regards Bhum Prasad since the only statement that he is proved to have made to the station officer was that he had seen the occurrence; that statement could not be used for any purpose except to contradict him. His failure or omission to say anything else could not possibly be said to be his statement or a part of it and, therefore, the bar imposed by Section 162 would not operate to exclude evidence of that failure or omission. His failure or omission to say anything else could not possibly be said to be his statement or a part of it and, therefore, the bar imposed by Section 162 would not operate to exclude evidence of that failure or omission. Section 162 merely prohibits the use of a statement; if a fact can be proved without making use of a statement made in the course of an investigation, the bar imposed by the section cannot apply. The section imposes a bar on the admissibility of evidence that would otherwise have been admissible under some provision of the Evidence Act; the fact that evidence of a certain fact is not barred by the provisions of that section does not automatically make it admissible. Even if a piece of evidence is not barred by Section 162, it cannot be received unless it is admissible under some provision of the Evidence Act. Therefore, evidence that a witness failed to make a certain statement during an investigation will not be admissible in evidence merely because its admissibility is not barred by Section 162; it must be admissible under some provision of the Evidence Act. If a failure to make a statement amounts to contradiction of another statement actually made (because what he failed to state cannot stand together with what he actually stated) the witness can be cross-examined by the accused about the failure by virtue of the provisions of Section 162. If the failure to make a statement, on the other hand, does not amount to contradiction of what he actually stated, if at all, the witness cannot be cross-examined about the failure because there is no contradiction of the statement actually made by him. For a detailed discussion of the question I would refer to what I said in Kambali Singh v. State AIR 1952 All. 289 . Still if the failure is a relevant fact under some provision of the Evidence Act, evidence of it can be given and Section 162 will not come in the way. In Aseruddin v. Emperor 28 Cri. L.J. 273 it was held that to attract the operation of Section 162 of the Code there must be a statement which is capable of being recorded and reduced into writing. In Aseruddin v. Emperor 28 Cri. L.J. 273 it was held that to attract the operation of Section 162 of the Code there must be a statement which is capable of being recorded and reduced into writing. The question whether the witness made a certain statement in the course of an investigation is not barred by the provisions of the section; if it is answered in the affirmative, the fact cannot be used for any purpose other than that of contradicting his testimony in the court. If he answers it in the negative, the fact can considered in evidence, if it is relevant under some provision of the Evidence Act. 12. Sri G.N. Kunzru pleaded that the fact that Sheo Prasad and Bhum Prasad did not disclose their assailant's names to the station officer was a relevant fact u/s 8 or 9 or 11(2) of the Evidence Act. The fact in issue in the case was hat the Respondents attacked Sheo Prasad etc. with a homicidal intention; the Respondent's liability necessarily flowed from that fact. That some or all of them did not attack was not a fact in issue; though it would be a relevant fact u/s 11(1) as being inconsistent with the fact in issue that they did. Since the prosecution has to prove the entire case, the fact in issue must be the fact which it has to prove in order to succeed and cannot include the contrary facts which the accused may have to prove by way of rebuttal. 13. The conduct of any person an offence against whom is the subject of any proceeding, e.g., of any victim of an offence, is relevant if it influences or is influenced by any fact in issue or relevant fact; this is the provision of Section 8 on which Sri G.N. Kunzru relies. Sheo Prasad undoubtedly was a victim and Bhum Prasad also may be treated as one because he was in his company and he also was assaulted though he escaped unscathed. Their failure to name their assailants was not influenced by the fact in issue; on the contrary it is pleaded to be quite the reverse of what it should have been. Their failure to name their assailants was not influenced by the fact in issue; on the contrary it is pleaded to be quite the reverse of what it should have been. There is no question of the failure having influenced the fact in issue or any relevant fact and I do not understand how it can be said to have been influenced by any fact made relevant under any other provision of the Act; it was not influenced by any fact forming part of the same transaction or by any cause or effect of the fact in issue or by the assailant's motive or preparation or by any other fact, of which evidence could be given under the Evidence Act. It may be conceded that there was no apparent reason for the failure; Bhum Prasad and Sheo Prasad had nothing to gain by not disclosing their assailants' names to the station officer. The station officer had to investigate the crime and they had to rely upon him for prosecuting their assailants. They should have been really thankful to the providence for sending him so soon after the occurrence to them so that they could lodge the first information report with him without having to make a journey to the police station. It may be conceded that they had an ulterior motive for not giving out their assailants' names. It may be that they did not recognize their assailants and wanted to implicate some innocent persons, or that they had recognized their assailants but wanted to implicate along with them some innocent persons, and had not till then decided which innocent persons should be implicated. It was this intention to implicate some innocent persons that had influenced their failure, but the intention to implicate innocent persons is not a fact made relevant by any provisions of the Evidence Act. Section 8, therefore, did not make the failure a relevant fact. 14. u/s 9 a fact is made relevant if it supports or rebuts any inference suggested by a fact in issue or a fact made relevant under some other provision. Here again the failure certainly does not support or rebut an inference suggested by the fact in issue that the Respondents attacked Sheo Prasad etc. The facts suggested by the fact in issue are that they were at the place where Sheo Prasad etc. Here again the failure certainly does not support or rebut an inference suggested by the fact in issue that the Respondents attacked Sheo Prasad etc. The facts suggested by the fact in issue are that they were at the place where Sheo Prasad etc. were attacked, that they had weapons in their possession with which they were attacked, that they were capable of wielding the weapons and so on. The failure has nothing to do with any inference suggested by the fact in issue. But it does support an inference suggested by a relevant fact. That all or some of the Respondents did not commit the crime is a relevant fact (vide Section 11(1) of the Evidence Act); it suggests an inference that Sheo Prasad intended to implicate innocent men, and this inference is supported by their silence. The failure was, therefore, a relevant fact u/s 9. 15. Section 11(2) lays down that facts not otherwise relevant are relevant if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. The failure cannot be said to be a. relevant fact under this provision unless it can be predicated that it makes the existence of the fact in issue that the Respondents committed the attack highly improbable (or the non-existence of that fact highly probable). I do not think it is possible to predicate so. The connection between the existence of a fact in issue (or a relevant fact) and the fact which is sought to be made relevant under the provision must be direct and immediate in order that it can be said that the existence of one is made by the other highly probable or improbable. It was stated In Emperor v. Jhabwala ILR 55 All 1040 at page 1072: "The expression 'highly probable or improbable' is significant. It indicates that the connection between the facts in issue and the collateral facts sought to be proved must be so immediate as to render the co-existence of the two highly probable." When a fact makes the existence or non-existence of any fact in issue (or relevant fact) highly probable or improbable, it is a relevant fact and evidence of it can be given. One can say that the failure makes it highly probable. One can say that the failure makes it highly probable. That Sheo Prasad and Bhum Prasad intended to implicate some innocent persons; but it cannot be said that ultimately they did implicate innocent persons. All that can be said is that they might have implicated innocent persons through the report lodged by Sheo Prasad. Even if it can be said that it was highly probable that they implicated innocent persons, which is as far as one can go, it is a case of high probability upon high probability. Had it been certain that they implicated innocent persons, the high probability of their intention would mean high probability of the implication of innocent persons; but when all that can be Said is that it was highly probable that they intended to implicate innocent persons and that if they did really intend to implicate innocent persons, it was highly probable that they implicated innocent persons, it is not possible to say that their failure makes it highly probable that they implicated innocent persons. There is no certainty that they had the intention and there is no certainty also that they carried out their intention. In the face of these two uncertainties the implication of innocent persons cannot be said to be a high probability, it is a probability but not a high probability. I cannot think of any relevant fact, the existence or non-existence of which is rendered highly probable or improbable by the failure; none was pointed oat to us. Therefore, the failure is not relevant fact u/s 11(2). 16. On the basis of Sevugan v. Raghunath AIR 1940 Mad 273 , Lachuman Lal Pathak and Another Vs. Kumar Kamakshya Narayan Singh, AIR 1931 Patna 224 , Naima Khatun v. Basant Singh 1934 A.W.R. (H.C.) 529, Munna Lal v. Kameshar Datt AIR 1929 Oud 113, and Bela Rani v. Mahabir Singh ILR 34 All 341 it vva.co mended by Sri J.R. Bhatt that no evidence can be admissible u/s 11 unless it is covered by the provisions of Section 32 of the Evidence Act. 17. u/s 5 of the Evidence Act evidence may be given in any proceeding of the existence or nonexistence of every fact in issue and of any relevant fact; this provision deals with the question what evidence can be produced or which facts can be proved. 17. u/s 5 of the Evidence Act evidence may be given in any proceeding of the existence or nonexistence of every fact in issue and of any relevant fact; this provision deals with the question what evidence can be produced or which facts can be proved. Which facts are relevant facts is laid down in Section 6 to 55 of Part I of the Evidence Act. The question how the facts, of which evidence can be given u/s 5, can be proved is an entirely different question which is dealt with in Part II "On Proof". The distinction between admissibility of evidence of a fact and the manner in which the existence of the fact can be proved is sometimes lost sight of. It was pointed out in Soney Lal v. Darabdeo ILR 14 Pat 461 (F.B.) that Section 11 has nothing to do with the method of proof. There is a difference between a statement "fact X exists" and a statement "A said that fact X exists", though both are statements of fact. See Naima Khatun v. Basant Singh 1934 A.W.R. (H.C.) 529. If the existence of fact X is a relevant fact, evidence about it can be given only by the person who knows personally about its existence and has not derived his knowledge from hearsay. A witness cannot be permitted to say that he heard from A that the fact exists; A, who has personal knowledge of the existence must be examined to prove it. But if A's saying that the fact exists is itself a relevant fact, evidence about it can be given by anyone who has heard him say so as well as by A himself. Thus a witness's evidence that A said in his presence that the fact exists is direct evidence of the fact of A's making the statement but hearsay evidence of the existence of the fact. This distinction between a fact and a statement regarding the existence of the fact was stressed in Emp. v. Abdul Sheikh 54 I. C. p. 88, and in Naima Khatun's case 1934 A.W.R. (H.C.) 529. This distinction between a fact and a statement regarding the existence of the fact was stressed in Emp. v. Abdul Sheikh 54 I. C. p. 88, and in Naima Khatun's case 1934 A.W.R. (H.C.) 529. Consider illustration (a) of Section 11; the fact that A was at Lahore must be proved by a person, say B, who saw him at Lahore and evidence of another person, say C, to the effect that he had heard B say that he had seen him at Lahore cannot be allowed (unless the statement of B about seeing A at Lahore is itself a relevant fact under some provision like Section 32 or Section 33). The evidence of the statement of B can be relevant u/s 11(2) only if it can be predicated that it makes the existence of the fact of A's being in Lahore highly probable. But it cannot be so predicated because the statement of B that he had seen A at Lahore does not itself make the existence of A at Lahore highly probable; B might have told a lie or might have been under a misapprehension or might have forgotten. Thus though the existence of A at Lahore is a relevant fact u/s 11, the statement of B about seeing A at Lahore is not a relevant fact under that provision. In Lachuman Lal Pathak and Another Vs. Kumar Kamakshya Narayan Singh, AIR 1931 Patna 224 , the fact in issue was the date of death of T and a statement in writing of B about T's dying on a certain date was held admissible u/s 11. No reasons are given for the decision; nor are the provisions of Section 11 discussed at all and with great respect to the learned Judges I am not prepared to agree that the mere statement of B that T had died on a certain date makes the death of T on that day highly probable; there is no such immediate connection as would render the co-existence of T's dying on that date and B's stating about his death on that date highly probable. In Bela Rani's case ILR 34 All. 341 Richards G. J. observed at page 343, "I think it impossible to hold that a statement of a relevant fact which would be inadmissible u/s 32 could be admissible u/s 11", and Banerji J. observed on page 344". In Bela Rani's case ILR 34 All. 341 Richards G. J. observed at page 343, "I think it impossible to hold that a statement of a relevant fact which would be inadmissible u/s 32 could be admissible u/s 11", and Banerji J. observed on page 344". The terms of Section 11 are, it is true, wide, but they must be read subject to the other sections of the Act, and, therefore, the fact relied on must be proved in accordance with the provisions of the Act. If that fact is a statement made by a person who is not called or cannot be called, the statement cannot be admitted unless it comes within the purview of subsequent sections of the Act, for example, Sections 32 and 33". In Naima Khatun's case 1934 A.W.R. (H.C.) 529 Sulaiman C.J. and Young J. observed at page 409 that it is, however, clear that if a statement does not fall within Section 32, it could not be admissible u/s 11 of that Act". In A.R.L.S.V.L. Sevugan Chettiar and Others Vs. Raja Srimathu Muthu Vijaya Raghunatha Doraisingam and Others, AIR 1940 Mad 273 Varadachariar J. with the concurrence of Abdur Rahman J. observed at page 278: "As regards Section 11, it seems to us that Section 11 must be read subject to the other provisions of the Act and that a statement net satisfying the conditions laid down in Section 32 cannot be admitted merely on the ground that, if admitted, it may probabilize or improbabilize a fact in issue or a relevant fact." In Munna Lal's case AIR 1929 Oud. 113 Gokaran Nath Misra and Pullan, JJ. said on page 115: "We are of opinion that before a fact can be considered to be relevant u/s 11 of the Act it must be shown that it is admissible. It would be absured to hold that every fact, which even if it be inadmissible and irrelevant, would be admissible u/s 11." I respectfully differ from these observations. There is no connection between the provisions of Sections 11 and 32 and there is no justification for saying that one section is dependent on the other. As a matter of fact each section creates now relevant facts; if a fact is relevant u/s 11, evidence about it can be given as permitted by Section 5 even though it may not be relevant u/s 32. As a matter of fact each section creates now relevant facts; if a fact is relevant u/s 11, evidence about it can be given as permitted by Section 5 even though it may not be relevant u/s 32. If there is one provision under which a fact becomes a relevant fact, it can be proved regardless of whether it is made relevant under some other provision or not. If a fact is relevant u/s 32, it can be proved notwithstanding that it is not relevant u/s 11 and to say that a fact relevant u/s 11 cannot be proved unless it is covered by the provisions of Section 32 is nothing short of striking out Section 11 from the Evidence Act. When Section 32 itself is sufficient to allow a fact to be proved, it would have been futile for the legislature to enact Section 11, if a fact made relevant by that section could not be proved unless it was also relevant u/s 32 It appears to me that in the above cases the distinction between a statement "fact X exists" and a statement "A said that fact X exists", or the distinction between admissibility of evidence of a fact and the manner of proving that fact was not kept in mind. In the case of Bela Rani ILR 34 All. 341, which was the earliest case, the question was of the date of a widow's death and it was held that Section 11 did not permit the evidence of a statement of a dead person that she had died on a particular date. The statement of the dead person was not a relevant fact u/s 32 and, therefore, it was held that it could not proved u/s 11. The statement was certainly not admissible in evidence because it was not a relevant fact u/s 11 at all: The fact that a person had said that the widow had died on a certain date did not make it highly probable that she had died on that date; I have already discussed this matter. That was the real reason for the inadmissibility of evidence of the statement of the deceased person and not that it was not covered by Section 32. That was the real reason for the inadmissibility of evidence of the statement of the deceased person and not that it was not covered by Section 32. Richards C.J. did repel the contention that the fact that the deceased person had made the statement rendered it highly probable that the widow had died on the particular date: When Section 11 did not apply at all, there arose no question of considering whether evidence inadmissible u/s 32 could be admissible u/s 11. Banerji J. took a somewhat different view; he thought that the statement did make the fact of the widow's dying on the particular date highly probable but held that the statement could not be proved because the maker was dead and the statement was not admissible u/s 32. As I said earlier, Section 32 simply deals with the relevancy of a fact and not with the manner of proving it and the manner of proving the statement of the deceased person did not at all depend upon whether it was relevant u/s 11 or u/s 32; in either case it could be proved in the same manner. The making of a statement can be proved in other ways than by producing the maker himself. In Munna Lal's case AIR 1929 Oud. 113, the learned Judge simply followed Bela Rani's case ILR 34 All. 341; there was no discussion of the law. There the question was of admissibility of evidence of statements made by the parents of X about the birth of X; the evidence was certainly not admissible because, as I said above, the statement did not make it highly probable that X was born on that date. The decision in the case was correct, but the reasons were not correctly given. It was immaterial whether the parents of X were dead or alive and Section 32 did not come into consideration at all, the primary question being whether the statements made the birth of X on a particular date highly probable. That question was not dealt with at all. In Naima Khatun's case 1934 A.W.R. (H.C.) 529 the Court relied upon the cases of Bela Rani ILR 34 All. 341 and Munna Lal AIR 1929 Oud. 113; there was no discussion of any law it is not known how the applicability of Section 11 was invoked or what was the occasion to refer to it. In Naima Khatun's case 1934 A.W.R. (H.C.) 529 the Court relied upon the cases of Bela Rani ILR 34 All. 341 and Munna Lal AIR 1929 Oud. 113; there was no discussion of any law it is not known how the applicability of Section 11 was invoked or what was the occasion to refer to it. The decision in the case of Sevugan AIR 1940 Mad. 273 also was correct on the facts because the mere statement that a property was situated at a certain place did not make it highly probable that it was. The learned Judges have given no reason in support of their observation quoted above. A provision creating a relevant fact cannot be subject to another provision creating another relevant fact. I have no doubt in my mind that if a fact is made relevant by Section 11, it is quite irrelevant for the Court to consider Section 32; the only question which then arises is how the fact should be proved and for this the Court is concerned with the provisions in Part II of the Evidence Act. In Radha Krishna v. Sarbeswar 29 C.W.N. 469 a witness resiled from a previous statement recorded u/s 154 of the Code of Criminal Procedure and the evidence of that statement tendered u/s 11 on the ground of its rendering highly probable the existence of the fact mentioned in it was rejected by a Bench of the Calcutta High Court which observed: "The mere fact that the woman made a statement has no bearing on the main fact in issue and Section 11 of the Evidence Act does not justify the admission of the contents of the statement". Similarly in Soney Lal's case ILR 14 Pat. 461 (F.B.) the statement in a sale deed that a plot of land was an orchard was held to be inadmissible to prove that it was. In Latafat Husain v. Lala Onkar Mal ILR 10 Luck. 423 the Court simply followed the cases of Bela Rani ILR 34 All. 341 and Munna Lal AIR 1929 Oud. 113. 18. I have already expressed agreement with the decision in some of the cases discussed above that the fact that a person made a statement that "fact X exists" does not make it highly probable that the fact exists. The statement, therefore, is not a relevant fact u/s 11(2). 341 and Munna Lal AIR 1929 Oud. 113. 18. I have already expressed agreement with the decision in some of the cases discussed above that the fact that a person made a statement that "fact X exists" does not make it highly probable that the fact exists. The statement, therefore, is not a relevant fact u/s 11(2). Section 32, however, makes the making of such a statement a relevant fact, if it was made in certain circumstances enumberated therein. It follows that if the making of a certain statement is not a relevant fact u/s 11, it cannot be proved unless it is made a relevant fact u/s 32; this is what was meant by the learned Judges who decided the cases mentioned above though the language used by them was not quite appropriate. Had it been true that the fact that a person made a statement "fact X exists" rendered the existence of fact X highly probable, many of the statements, the making of which is created a relevant fact by Section 32, would have been relevant u/s 11(2) and there would have been no necessity of enacting many of the provisions of Section 32-Evidence of somebody's statement "fact X exists" is receiveable not because the statement renders the existence of fact X highly probable but because the statement was made in certain special circumstances mentioned in Section 32 and the law attaches special value to it. If Bhum Prasad and Sheo Prasad had stated before the station officer that the Respondents had committed the crime, evidence of the statement made by Sheo Prasad could have been given because it is covered by the provisions of Section 32, but evidence of the statement made by Bhum Prasad could not have been given because neither does it render highly probable that the Respondents committed the crime nor was it made in any of the circumstances mentioned in Section 32. Just as the making of a statement about the existence of a fact cannot be said to render the existence of the fact highly probable, so also the non-making of a statement does not render highly improbable that the fact existed. Just as the making of a statement about the existence of a fact cannot be said to render the existence of the fact highly probable, so also the non-making of a statement does not render highly improbable that the fact existed. In other Words the failure of Sheo Prasad and Bhum Prasad to state before the station officer that the Respondents committed the crime does not render it highly improbable that they committed it; inspite of their failure it is quite probable or likely that they committed it. Their failure was, therefore, not a relevant fact u/s 11(2). 19. The failure was, as shown above, a relevant fact as supporting the inference that Sheo Prasad and Bhum Prasad intended to implicate innocent persons and wanted to consult somebody before lodging the report. Their evidence that the crime was committed by the Respondents is made highly suspicious by the fact and the learned Sessions Judge could not be said to be unjustified in not relying upon it. The other witnesses were connected with Bhum Prasad and Sheo Prasad and there was nothing strange if they have evidence in the same manner as Bhum Prasad and Sheo Prasad did. No independent witnesses were examined though it is in evidence that the crime was witnessed by some. Mahabali, Raj Bahadur, Rameshwar and Devi Dayal might have been independent witnesses. There are also discrepancies in the statements of witnesses about the persons involved in the crime. All these facts made the case against the Respondents sufficiently weak. 20. The evidence of the eye-witnesses was disbelieved by the learned Sessions Judge; some of the reasons given by him are unsound or illegal, but I am not in a position to say that no reasonable person could have disbelieved the evidence. We have the right to appraise the evidence; we are not bound by the finding of the learned Sessions Judge about its credibility and weight. But we have to take into consideration the fact that he had the advantage of seeing and hearing the witnesses and that an appellate court should be chary of disagreeing with the trial court's appreciation of oral evidence. Bhum Prasad did not give evidence in a straightforward manner before the learned Sessions Judge. He concealed the facts about Hanuman Din's being prosecuted for the murder of his grandfather and grandmother. Bhum Prasad did not give evidence in a straightforward manner before the learned Sessions Judge. He concealed the facts about Hanuman Din's being prosecuted for the murder of his grandfather and grandmother. It is not clear from his evidence whether he went to Hanuman Din and Sheo Prasad immediately after the assailants had run away or remained in the grove so long as the station officer did not reach the spot. His statement that though he went to the police station after Sheo Prasad had dictated the report, he did not read it and did not know what was written in it is difficult to believe. The station officer deposed that when he reached the poiice station he found Bhum Prasad, Ravi Gharan etc. there; it was after his and the head constable's arrival that the report was lodged by Sheo Prasad. So actually Bhum Prasad was present when the report was lodged. Sheo Prasad named only five persons as the assailants; whereas the evidence now is that there were 20--25 men; since Bhum Prasad could not explain how he allowed only five names to be mentioned in the report, he told a lie that he did not know what was written in it. Bhum Prasad did not refer to Puttu at all when he mentioned the order in which he and others were going to the railway station. The fact that his name does not find place in the report of Sheo Prasad, and in the statements made by Bhum Prasad, Bhagwat and Jagan Nath during the investigation renders it highly improbable that he was an eye-witness; the fact can be considered in evidence u/s 11(3). Bhagwat's reason for going to the railway station in the company of Hanuman Din etc. is not quite convincing; he had received no letter from his maternal uncle. The learned Sessions Judge has relied considerably upon the fact that this, witness (as also other witnesses) did not mention certain details in their statements during the investigation. The learned Sessions Judge before drawing any inference against the credibility of the witnesses ought to have considered, which he has not done, how the fact was relevant at all. It could not be relevant unless the omission amounted to a contradiction and could be proved as such u/s 162 of the Code or was a relevant fact u/s 11 of the Evidence Act. It could not be relevant unless the omission amounted to a contradiction and could be proved as such u/s 162 of the Code or was a relevant fact u/s 11 of the Evidence Act. None of the omissions amounted to a contradiction according to the test laid down by in Ram Bali and Others Vs. State, AIR 1952 All 289 nor did any of them render the existence of the fact omitted to be mentioned highly improbable. The learned Sessions Judge should not, therefore, have allowed his time to be wasted in cross-examination of the witnesses about omissions in their statements during the investigation and should not have drawn any inference adverse to their credibility. Bhagwat's statements that he saw no police officer at the railway station suggests that he did not go to the railway station. Rasulabad is not a big railway station and if he had gone to the railway station from the place of the occurrence, he would not have failed to notice the station officer and the head constable. Sushila was not named as an eye-witness by Puttu in court and by several witnesses in their statements during the investigation; a single omission to mention her name is not a relevant fact but the fact that so many persons have failed to mention her presence is relevant as rendering it highly improbable that she was in the company of Hanuman Din etc. Sheo Prasad's referriag to her in his statement u/s 162, even if it be admissible u/s 32 of the Evidence Act, is not easy to believe. The assailants did nothing to Sushila and there was no reason for Sheo Prasad to express any anxiety about her whereabouts. After all there were Bhum Prasad, Sheo Prasad etc. and there was no cause for any anxiety. When he had not seen the assailants directing their attention towards her, he had no reason to tell the investigating officer that he did not know what had happened to her. She did not explain why she deserted the company of Bhum Prasad and Puttu. It is also difficult to believe that she not only relied upon Ram Autar, who is a mere boy, as her protector but also remained standing with him quite close to the scene of occurrence and saw the whole occurrence taking place instead of running away as everybody else did. It is also difficult to believe that she not only relied upon Ram Autar, who is a mere boy, as her protector but also remained standing with him quite close to the scene of occurrence and saw the whole occurrence taking place instead of running away as everybody else did. The learned Sessions Judge's finding that her presence at the time of the occurrence was unlikely cannot be said to be patently wrong. Ram Autar happened to be in the company of Hanuman Din etc. by sheer chance. The case of the Respondents was that he was connected with Hanuman Din and Ravi Charan because he lived in the house of Ravi Charan and was employed by him, The prosecution witnesses denied that he lived in Ravi Gharan's house and asserted that he lived in his own house. When the case was under inquiry in the court of the committing Magistrate, he made a local inspection of the house of Ram Autar and found that it had not been inhabited and that an attempt had been made to give it an appearance of being in regular use. The learned Sessions Judge did not himself make any local inspection; nor was the committing Magistrate examined before him to depose about what he himself found on local inspection. Still he relied upon the inspection note of the Magistrate to hold that what the prosecution witnesses had stated was false and that on account of his being a lonely member of his family and his house being in a dilapidated condition, he could not have been going to bring his married sister to live with him. This use by the learned Sessions Judge of the inspection note prepared by the committing Magistrate was illegal. The Code of Criminal Procedure does not contemplate a Judge's relying upon local inspection done by another Judge or a Magistrate. u/s 539-B any Judge or Magistrate may at any stage of any inquiry or trial inspect any place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial and should record a memorandum of any relevant facts observed at such inspection; such memorandum has to form part of the record of the case. The provision is subject to the proviso that in a trial with the aid of assessors the Judge cannot act under the provision unless, the assessors are also allowed a view u/s 293. The committing Magistrate was of the opinion that it was necessary to see Ram Autar's house and consequently made the inspection. The learned Sessions Judge, if he thought ii necessary to see the house, should have himself made an inspection and could not rely upon the Magistrate's inspection. If he was not of the opinion that it was necessary to see the house, he could not rely upon the opinion of the Magistrate and upon what the Magistrate did in conformity with that opinion. The only purpose behind a local inspection is the proper appreciation of the evidence. The evidence in the case was that the house was habitable and in regular use of Ram Autar; there was no evidence to the contrary. Therefore, the inspection could be used only for the purpose of appreciating the evidence, of the prosecution and not for accepting the contention of the Respondents. As a result of the inspection the prosecution evidence could be disbelieved but it could not be held that false evidence had been created. It was pointed out in Rajju Lal v. Emperor A.W.R. 1934 (H.C.) 1608 by Niamatullah J. that the court is not expected to base its judgment on its inspection and that there must be substantive evidence apart from the inspection note to justify its judgment. The memorandum prepared by the Magistrate undoubtedly formed part of the record of the inquiry; but it did not form part of the record of the trial before the learned Sessions Judge unless it was tendered in evidence under some provision. The record of the inquiry before a committing Magistrate does not from part of the record of the trial in the sessions court. Had the learned, Sessions Judge made a local inspection, the memorandum prepared by him would have formed part of his record. Moreover, the law contemplates that a local inspection upon which a Sessions Judge can rely must be made inthe presence of the assessors. A Sessions Judge cannot make use of a local inspection which was not shared by the assessors; it follows that he cannot use a local inspection made by the committing Magistrate. Moreover, the law contemplates that a local inspection upon which a Sessions Judge can rely must be made inthe presence of the assessors. A Sessions Judge cannot make use of a local inspection which was not shared by the assessors; it follows that he cannot use a local inspection made by the committing Magistrate. The committing Magistrate could have been examined as a witness to prove what he himself had seen; unless that was done, the memorandum prepared by him of the local inspection could not be used in evidence. If a court consists of two or more Magistrates, both or all should join in a local inspection; this supports the view that a Magistrate cannot use a local inspection which was not done by him. The learned Sessions Judge, therefore, acted illegally in making use of the memorandum prepared by the committing Magistrate of the local inspection done by him and in treating it as a piece of evidence. The telegram sent by Jagannath does not corroborate the evidence given by him in court. Neither was anybody shot, at nor had Hanuman Din died before the dispatch of the telegram. Bhagirath Respondent is not mentioned in the telegram nor does it mention the presence of other accused. There was a considerable unexplained interval of time between the occurrence and the despatch of the telegram. Jagannath deposed that he heard from Babu Bania about the dacoity being committed in the house of Tribeni Dayal; the learned Sessions Judge was not quite right in refusing to believe this part of the statement on the sole ground that Babu Bania had not been examined to corroborate him. There is no law which requires at least two witnesses to prove a fact. 21. Moreover every collateral fact does not require to be corroborated by evidence; I otherwise there will be no end of corroboration. In view of these facts there was some, justification, even if not great, for the view taken by the learned Sessions Judge. In view of the consistent pronouncements of the Supreme Court this appeal cannot succeed. 22. I, therefore, should dismiss the appeal. N. Beg, J. 23. I agree. 24. We dismiss the appeal. The bail bonds of the Respondents are discharged.