ORDER : K. HENNA, J. 1. Can the contradicted portions of first information statement be used as 'evidence' to convict a person? Can contents of scene mahazar be treated as evidence, to prove any of the facts stated therein? What is meant by 'evidence'? On a mere marking of first information statement or scene mahazar through the maker, can the contents be treated as 'evidence'? These important questions arise in this case for consideration in this revision. 2. Revision petitioner stands convicted and sentenced for offences under Sections 279 and 304A of Indian Penal Code ('Indian Penal Code for short) by Magistrate Court and the said conviction and sentence were confirmed by Sessions Court. He was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/-and in default to undergo rigorous imprisonment for one month, for the offence under Section 279 Indian Penal Code and rigorous imprisonment for one year and to pay a fine of Rs. 2000/- and in default to undergo rigorous imprisonment for three months for offence under Sections 304(A) Indian Penal Code This revision is filed against such conviction and sentence. 3. Facts briefly: On 06.11.1992 at about 11.45 a.m, petitioner was driving a bus in a rash and negligent manner so as to endanger human life along the K.K. road from east to west and when the bus reached bear St. Mary's Chappel, petitioner swerved the bus abruptly towards wrong side and knocked down deceased Sri. Thomas, who was standing on the northern tarred end of the road. The deceased was thrown off to the road and left rear wheel ran over his body, by causing fatal crush injuries. He succumbed to the injuries, while he was on the way to the Medical College Hospital. 4. The prosecution examined PWs-1 to 16 and marked Exts. P-1 to P-16. The accused denied his involvement in the offence and stated that he was not a driver at the time of accident. All occurrence witnesses turned hostile. Hence, both the Courts below placed reliance upon the contents of the scene mahazar, Ext. P-9 and also the portions of the first information statement which are controverted by first informant, to entera conviction against accused. Referring to the contents of the scene mahazar, learned Sessions Judge held thus: "18. All occurrence witnesses turned hostile. Hence, both the Courts below placed reliance upon the contents of the scene mahazar, Ext. P-9 and also the portions of the first information statement which are controverted by first informant, to entera conviction against accused. Referring to the contents of the scene mahazar, learned Sessions Judge held thus: "18. The scene mahazar facts clearly prove the culpable negligence of the driver of the bus involved in the accident. The offending bus proceeded from east to west and its proper side was southern half of the road. Instead of that it not only cross the midline of the road but over stepped to the extreme of wrong side and knocked down ill-fated Sini. K. Thomas who was waiting for the bus on the northern mud margin of the road. Thus, the objective facts proved from the scene mahazar clearly establishes criminal negligence on the part of the offending driver." (emphasis supplied) 5. Certain portions of first information statement, which were denied by first informant are marked as Ext. P-5(a) and Ext. P-5(b). According to Trial Court, portions of the first information statement are "properly proved" by prosecution, "by reading out the relevant portions to PW-3. who gave first information statement and also by reading out the same portion to P-W 16, the Sub Inspector who admitted that PW-3 gave Ext. P-5(a) and P-5(b) statements before him." 6. The Trial Court also held that place of occurrence noted in Ext. P-9 scene mahazar corroborates Ext. P-5(b)-statement given by PW-3 in the first information statement. The Appellate Court, concurred with Trial Court's findings and confirmed conviction. Relying upon the contents of Ext. P-9, scene mahazar and Ext. P-5(a) and P-5(b), which are the contradicted portions of first information statement, both the Courts below came to the conclusion, "accused drove the vehicle in a rash and negligent manner so as to endanger human life and went to the extreme north tarred end, which is a wrong side, and hit against the deceased who was standing there, after swerving the vehicle to the northern side" etc., and held petitioner guilty of alleged offences. 7. 7. Learned counsel for revision petitioner argued that in the absence of any evidence of eye-witnesses relating to the manner in which the incident happened or accused drove the vehicle at the time of the incident, the Court below ought not to have convicted the accused, merely on the basis of the contents of the scene mahazar. Learned Public Prosecutor argued that PW-16 the investigation officer deposed that he prepared the scene mahazar and scene of occurrence was pointed out by PW-3 to him. As per scene mahazar, there is a bus stop on southern side of the road and bus did not stop at the bus stop but instead, it swerved to the right and went to the wrong side as seen from contents of scene mahazar and hence, this is a clear case of rash and negligent driving by accused, it is submitted. 8. It is also pointed out by learned Public Prosecutor that in the earlier version given by PW-3 in the first information statement, he implicated petitioner and the relevant portions from his statement were proved by PW-16. When all these facts are put together, it can be inferred that the incident took place on the northern extreme end of the road which is the wrong side of the vehicle and hence conviction cannot be said to be illegal or proper, it is strongly argued. 9. On hearing both sides and on a perusal of records and impugned judgment, I find that accused was convicted merely on the basis of the contents of scene mahazar and portions of first information statement which are contradicted by first informant. As per law, neither the contents of scene mahazar nor contradicted portions of first information statement constitute "evidence". Mere marking of a scene mahazar or contradicted portions of the first information statement through the maker will not prove existence or truth of the "facts" referred to in the contents of those documents. The facts disclosed from the contents of such documents have to be proved in accordance with law, by adducing "evidence", which is admissible in law. 10. What is "evidence", as per law? Section 3 of Evidence Act refers to what 'evidence' is. The facts disclosed from the contents of such documents have to be proved in accordance with law, by adducing "evidence", which is admissible in law. 10. What is "evidence", as per law? Section 3 of Evidence Act refers to what 'evidence' is. Relevant portion of Section 3 of Evidence Act is extracted below: "Evidence".- "Evidence" means and includes - (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) All documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence." 11. Section 3 of Evidence Act lays down that "evidence" means and includes "oral evidence" and "documentary evidence". All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry are called "oral evidence". All documents including electronic records produced for the inspection of the Court are called "documentary evidence". Thus, "evidence" consists of "oral evidence" and "documentary evidence" and the relevant facts in a case can be proved either by oral evidence or documentary evidence. 12. Section 59 of Evidence Act lays down that all facts, except the contents of documents or electronic records may be proved by oral evidence. As per Section 60 of Evidence Act oral evidence must, in all cases whatever, be direct. That is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. 13. So, if the first informant who has seen an incident and the manner in which it has occurred, such facts may be proved only by direct oral evidence of first informant in Court and not by documentary evidence in the light of Section 60 of Evidence Act. Only i f first informant deposes in Court, the facts stated in first information statement, which are perceived by his senses, such facts may constitute evidence. But, the facts stated in first information statement are not provable by mere production of first information statement. Only i f first informant deposes in Court, the facts stated in first information statement, which are perceived by his senses, such facts may constitute evidence. But, the facts stated in first information statement are not provable by mere production of first information statement. If first information statement is produced in Court and marked through first informant, what is proved is only existence of a first information statement and not the existence of facts contained in the first information statement. 14. Proof of preparation of first information statement and affixing of signature therein may prove existence of such a statement, but it will not further prove existence or truth of the "facts" which are stated therein. If the "facts" stated in first information statement are relevant in a case and existence or truth of such facts is in issue, mere marking of the first information statement will not prove truth or existence of such facts. The facts stated in the first information statement have to be proved by admissible evidence, in accordance with law. It is held by the Supreme Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import, ( (1981) 1 SCC 80 ) as follows : "Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue." 15. The Courts below also relied upon the contents of scene mahazar and first information statement, which are "documentary evidence", to convict petitioner. But, as stated by me earlier, mere production of documentary evidence like scene mahazar or first information statement or marking the same through the maker will not prove existence or truth of the "facts" referred to therein. The Courts below also relied upon the contents of scene mahazar and first information statement, which are "documentary evidence", to convict petitioner. But, as stated by me earlier, mere production of documentary evidence like scene mahazar or first information statement or marking the same through the maker will not prove existence or truth of the "facts" referred to therein. If first informant has seen the incident and the manner in which it has occurred and those facts have to be proved by oral evidence of the first informant in Court and not by merely marking the first information statement or the portions of such statement. The first informant has to "depose" the relevant facts in Court and then alone, it will constitute evidence of such facts. 16. PW-3 who is the first informant is an alleged eye-witness to occurrence. But, he did not state in Court that he witnessed the incident. He did not say how incident happened. In fact, he denied to have seen the incident. He also denied the portions of first information statement which will reveal that he saw the incident etc. In such circumstances, there is absolutely no "oral evidence" from the side of first informant how the incident happened. All other witnesses PW-1 to PW-4 turned hostile and they did not make any oral statement in Court how the incident happened. They also denied to have witnessed the incident. Therefore, there is absolutely no evidence in this case to prove the incident or anything incriminating accused. 17. However, PW-16 Sub Inspector deposed that he recorded the first information statement and that PW-3 gave statements to him as recorded in Ext. P-5(a) and P-5(b). Those are portions offer information statement, Ext. P-5. But, while PW-3 was confronted with such portions of the first information statement, he stated that he did not make any such statements to the Police. According to Court below, Ext. P-5(a) and Ext. P-5(b) are "properly proved" by prosecution and hence, accused was convicted based on contradicted portions of first information statement. 18. By the evidence of PW-16 Sub Inspector, all what may be proved is that PW-3 made statements to him, as recorded in Ext. P-5(a) and P-5(b), provided the Court believes evidence of PW-16. But, evidence of PW 16 will not prove the truth or existence of the "facts" which are referred to in Ext. P-5(a) and P-5(b). 18. By the evidence of PW-16 Sub Inspector, all what may be proved is that PW-3 made statements to him, as recorded in Ext. P-5(a) and P-5(b), provided the Court believes evidence of PW-16. But, evidence of PW 16 will not prove the truth or existence of the "facts" which are referred to in Ext. P-5(a) and P-5(b). Such facts must be proved only by evidence of first informant and not by any other person. Those cannot be proved by merely marking first information statement or the contradicted portions therein. Since, first informant did not depose before Court, the facts which are stated in Ext. P-5(a) and P-5(b), such facts do not stand proved by evidence. 19. There can be no doubt that the Court below committed a serious illegality in treating contradicted portions of first information statement which are marked as exhibits, as "evidence", to convict accused. Contradicted portions of the first information statement do not constitute 'evidence'. as stated in Section 3 of Evidence Act. The contents of the marked contradicted portions of first information statement are no evidence at all. The Court shall not treat contradicted portions of first information statement as "evidence". to enter any finding in respect of any of the "facts" referred to therein. The evidence of the Police Official who deposes in Court that first informant made statements to him as recorded in the marked portions of first information statement which are contradicted by first informant will not prove the facts stated therein. 20. Therefore, it will be illegal to rely upon contents of the first information statement or the portions of the same, which are contradicted by first informant and treat them as evidence to prove the facts referred to in first information statement. As per law, contradicted portions of the first information statement may only constitute former statement of the first informant and such contradicted portions of first information statement may be used to impeach the credit of the first informant, as stated in Section 155 of the Evidence Act. But, under no circumstance, contradicted portions of the first information statement shall be used as "evidence" to convict person. 21. Now coming to the scene mahazar, I have noticed that many subordinate Courts rely upon contents of scene mahazaras evidence to enter crucial finding against accused. This is illegal. The contents of scene mahazar cannot be treated as "evidence". But, under no circumstance, contradicted portions of the first information statement shall be used as "evidence" to convict person. 21. Now coming to the scene mahazar, I have noticed that many subordinate Courts rely upon contents of scene mahazaras evidence to enter crucial finding against accused. This is illegal. The contents of scene mahazar cannot be treated as "evidence". The mere production of scene mahazar or marking of it through the Police Officer who prepared the same will not prove the "facts" stated therein. A scene mahazar may, ordinarily, contain two types of facts: one consists of facts which are personally observed by the investigating officer at the scene; the other constitutes facts which are gathered from the statements of witnesses made to him during the course of investigation. 22. An investigating officer may notice blood at the scene, tyre mare marks, destruction of certain property, weapon or other materials which may be relevant to prove the guilt of accused. He may therefore, record such facts in the scene mahazar which are based on his personal observations, at the scene. Such facts cannot be proved by mere marking of the scene mahazar through its maker. It is held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, ( (2003) 8 SCC 745 ), that the legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. 23. The observations made personally by investigating officer at the scene, such as what he saw etc., have to be deposed to by him in Court in the light of Section 60 of the Evidence Act. Those facts must be proved by direct oral evidence of investigating officer and not by producing scene mahazar. In the absence of Police Officer's oral evidence in Court regarding the facts observed by him at the scene which are stated in the scene mahazar, it will be illegal for the Court to rely upon the contents of scene mahazar as 'evidence'. In other words, the relevant facts which investigating officer observed at the scene and which are recorded by him in scene mahazar must be deposed to by him in Court, if the Court wants to rely upon them as "evidence". 24. In other words, the relevant facts which investigating officer observed at the scene and which are recorded by him in scene mahazar must be deposed to by him in Court, if the Court wants to rely upon them as "evidence". 24. An investigating officer may also gather information from the witnesses about some relevant details with respect to the scene of offence. He may also incorporate such details in the scene mahazar, but such details are not admissible in evidence, in the light of Section 60 of Evidence Act. Even if an investigating officer deposes in Court, regarding what he gathered from the statement of a witness about scene of offence and recorded in the scene mahazar, such "evidence" shall be eschewed from consideration, since it is inadmissible, by virtue of section 162 of the Code of Criminal Procedure ('the Code' for short). As per Section 162 of the Code, a statement made by a person to a Police Officer in the course of investigation shall not be used for any purpose, except as stated in the said Section. 25. In Rameshwar Dayal v. State of U.P., ( (1978) 2 SCC 518 ), referring to inquest report, site plans etc.. it is held by the Supreme Court, as follows: "That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under section 162 Criminal Procedure Code except for the limited purpose mentioned in that section." 26. To sum up, I hold that prosecution failed to prove by admissible evidence any thing incriminating against accused or in respect of his role in the incident. There is absolutely no evidence on record to prove the guilt of the accused. The truth or otherwise of the facts or of the contents of scene mahazar or first information statement is not proved by testimony of the persons who can give direct oral evidence relating to the facts stated therein. The conviction and sentence passed against petitioner based on contents of scene mahazar and first information statement are, therefore, illegal and unsustainable. The truth or otherwise of the facts or of the contents of scene mahazar or first information statement is not proved by testimony of the persons who can give direct oral evidence relating to the facts stated therein. The conviction and sentence passed against petitioner based on contents of scene mahazar and first information statement are, therefore, illegal and unsustainable. In the result, the following order is passed: (1) The conviction and sentence passed under Sections 279 and 304A Indian Penal Code are set aside. (2) The revision petitioner is found not guilty and he is acquitted of offences under Sections 279 and 304-A Indian Penal Code (3) The revision petitioner is set at liberty forthwith. This Revision Petition is allowed.