N. H. BHATT, S. H. SHETH, J. ( 1 ) * * * * ( 2 ) THE three injured witnesses have been examined by the prosecution in addition to three other witnesses who claim to be eye-witnesses. Vela Dera P. W. 11 Ex. 42 has unfolded the commencement of the assault in the following terms. He his parents his wife and children had been staying in his field called Ajor Vadi. His brother Faku Dera is the owner of a neighbouring field called Asha Vadi. He had been staying there with his wife and children. This witness was not on good terms with accused No. 3 and the members of his family. On the day of the incident he had been in his house. His parents Dera Uka and Lalbai and other members of his family had also been in his house. P. W. Samat Faku son of his brother had been looking after water channels. At that time accused No. 1 passed through his Vadi at about 7 A. M. He challenged him and asked him why he had been passing through his Vadi even though they were not on good terms. He therefore went away. All the accused and the juvenile offender Jaga returned to at his field at about 9 A. M. Accused No. 1 started abusing him and asked him to come out. He challenged the accused and asked them why they had entered his field. He came out. Accused No. 1 at that time fired a gun shot at his face. He sustained injuries on his face. He fell down. His parents Dera Uka and Lalbai and his wife Mithabai started weeping. Thereafter his parents were assaulted but he did not know who assaulted them. He become unconscious. He regained consciousness when he was in the Civil Hospital at Mandvi. His statement was recorded there by two persons whom he has designated as doctors. In that statement he disclosed the names of three accused and stated that accused No. 1 had fired a gun shot at him. He further stated therein that accused No. 1 had done so on account of existence of enmity between them and because he was not going to hand over the possession of his field to him. In that statement he disclosed the names of three accused and stated that accused No. 1 had fired a gun shot at him. He further stated therein that accused No. 1 had done so on account of existence of enmity between them and because he was not going to hand over the possession of his field to him. In that statement he has stated that when accused No. 1 fired the gun shot at him he was at a distance of about 10 feet. They had trespassed into his field and asked him to come out. After his statement was recorded in the Civil Hospital at Mandvi he had again become unconscious. He was removed to Civil Hospital at Ahmedabad where he regained consciousness and remained there as an indoor patient for 11 or 12 days. He was not able to follow his daily routine during that period. Accused No. 1 had a gun. Accused No. 2 had a Dharia and accused No. 3 had a stick. The juvenile offender Jaga had an axe. He was taken to the Civil Hospital at Ahmedabad in a taxi-cab and was accompanied by Hadhu Gagh Fakubhai and Dr. Hathi. In his cross-examination the following material points have been brought out. In all there were 7 or 8 chapter cases between him and the accused. He had known accused No. 1 very well. An incident had happened between him and accused No. 1 earlier in which he was charged with having assaulted accused No. 1 but he was acquitted. A similar allegation was made against him by Mithu Suja Sangar but it was false. He regained consciousness at the Civil Hospital at Mandvi at about 10 or 10-30 A. M. He had not seen anyone else except the doctor when he regained consciousness. At that time Faku was not in the Hospital nor was Samat there. Similarly Hadhu was also not there. In the vicinity of his field at a distance of about 400 to 500 feet there is a tea shop. Similarly there are houses of Harijans near his field. He did not know whether Harijans and others were present at the time of the incident. When the accused entered his field his mother and father had been in his house. His statement as recorded by the police at Ahmedabad. Similarly there are houses of Harijans near his field. He did not know whether Harijans and others were present at the time of the incident. When the accused entered his field his mother and father had been in his house. His statement as recorded by the police at Ahmedabad. Samat Faku his brothers son had been in his field because it was Samat whole was starting the machine for fetching water to let it into the water channels. It was he who looked after his water channels. He had been paying him for it. He used to work in his field whenever he was required to do so. On the day of the incident he had been in his field in the early morning and had started his machine and had been there till the idcident took place. He fell down after he was assaulted by accused No. 1 by the gun shot fire. He did not know what happened thereafter. His evidence discloses one or two aspects which are quite material. He has stated in his evidence that accused No. 1 was the first to fire the gun shot at him as a result of which he sustained injuries fell down and became unconscious. He therefore did not know what happened thereafter. This part of his evidence is eminently true because it gives us an impression that he had statet to the Court what he had seen at the time of the incident and had not tried to add anything which in all probability he could not have seen and which happened after the assault was made on him. Similarly his evidence does not try to bring into picture persons other than members of his family who were supposed to be there. According to him his statement in the Mandvi Hospital was recorded by two doctors. That statement has been given mark A. It shows that it was recorded by the Honorary Magistrate at Mandvi and not by a doctor. Honorary Magistrate has not been examined. However the statement has been formally proved by the witness himself. The learned Trial Judge has held that it is not admissible in evidence. The admissibility of this statement is not hit by sec. 162 of the Criminal Procedure Code because it was not a statement made by him to the police in course of investigation. However the statement has been formally proved by the witness himself. The learned Trial Judge has held that it is not admissible in evidence. The admissibility of this statement is not hit by sec. 162 of the Criminal Procedure Code because it was not a statement made by him to the police in course of investigation. It was a statement which was recorded by a honorary Magistrate. Sec. 157 of the Evidence Act to which reference has been made by the learned Trial Judge provides as follows: in order to corroborate the testimony of a witness any former statement made be such witness relating to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact may be proved. In order to prove such a statement what is required to be shown is that it was made at or about the time when the fact took place or before any authority legally competent to investigate the fact This section came up for construction before the Supreme Court in DWARKA NATH V. LALCHAND AND OTHERS A. I. R. 1965 SUPREME COURT 1549. It was a case under the U. P. Court of Wards Act 1912 The Supreme Court laid down in that decision that two circumstances which are alternative are conditions precedent to the proof of an earlier statement under sec. 157. The first is that the statement must have been made at or about the time when the fact took place. Secondly it must have been made before an authority legally competent to investigate into the fact. ( 3 ) IN NAMESHWAR S/o KALYAN SINGH V. THE STATE OF RAJASTHAN A. I. R. 1952 SUPREME COURT 54 it has been laid down that where the condition prescribed by the expression at or about the time by sec. 157 of the Evidence Act is fulfilled a previous statement by an accomplice or a complainant is legally admissible in India as corroboration. However the weight to be attached to it constitutes a different matter. The Supreme Court has further observed that there cannot be a hard and fast rule about the at or about condition laid down in sec. 157. However the weight to be attached to it constitutes a different matter. The Supreme Court has further observed that there cannot be a hard and fast rule about the at or about condition laid down in sec. 157. That main test is whether the statement was made as early as could reasonably be expected in the circumstances of the case and before there was any opportunity for tutoring or concoction. ( 4 ) IN DINKAR BANDHU DESHMUCH AND ANOTHER V. STARE A. I. R. 1970 BOMBAY 438 the High Court of Bombay has relied upon the decision of the Supreme Court referred to above and laid down that there cannot be a hard and fast rule in regard delay caused in making a statement so as to stand the test of the expression at or about condition laid down by sec. 157. Thereafter the High Court of Bombay has reiterated that it ought to have been made as early as could reasonably be expected in the circumstances of the case and under the circumstances which show that the witness had no opportunity of being tutored or concocting anything. ( 5 ) NOW the facts herein show that immediately after accused No. 1 shot at Vela Dera he became unconscious. He was removed to the Civil Hospital at Mandvi where he regained his consciousness. His statement was recorded by the Honorary Magistrate immediately thereafter in the Civil Hospital at Mandvi. These facts show that the statement was recorded soon after the incident happened and at the first available opportunity when Vela Dera could make a statement. It appears to us that under the aforesaid circumstances there was no opportunity to tutor him nor was there any opportunity for anyone to concoct anything. Therefore thestatement mark A was provable under sec. 157 of the Evidence Act. It has been proved by Vela Dera who made it. In our opinion therefore the learned Trial Judge was in error in not exhibiting that statement. We therefore set aside the finding recorded by the learned Trial Judge to the contrary and hold that it was provable under sec. 157 of the Evidence Act and has been proved by Vela Dera. We therefore admit it in evidence. This statement can be used for corroborating the testimony of Vela Dera. We therefore set aside the finding recorded by the learned Trial Judge to the contrary and hold that it was provable under sec. 157 of the Evidence Act and has been proved by Vela Dera. We therefore admit it in evidence. This statement can be used for corroborating the testimony of Vela Dera. It shows that accused No. 1 had fired the gun shot at him and was accompanied by accused Nos. 2 and 3. So far as the motive is concerned it shows that there was an animosity between the two on account of dispute relating to land and that they were not likely to let him go scotfree. He next stated in that statement that he was in his field and had been standing at the material time at a distance of 10 feet from the accused. He next stated therein that he had not done anything at the * * * * * * * * any Magistrate of the First Class or any other Magistrate specially empowered by the State Government in this behalf may if he is not a police officer record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial. It has not been shown by the prosecution that the Honorary Magistrate who recorded the statement was either a First Class Magistrate or a Magistrate specially empowered under that section to record such a statement. Therefore the second alternative laid down by sec. 157 of the Evidence Act has not been satisfied However since the first alternative has been satisfied we have held that it was provable and has been proved. We have therefore admitted it into evidence. ] .