- (1.)This case comes before us on reference under Section 307 of the Code of Criminal Procedure from the Officiating Sessions Judge of Jessore. The accused, Balaram Das, was charged with having committed culpable homicide not amounting to murder by causing the death of one Surendra Nath Das. The Jury unanimously found the accused not guilty. The learned Sessions Judge is clearly of opinion that to accept the verdict of the Jury would cause a failure of justice, and that the accused has committed the offence punishable under the first part of Section 304, Indian Penal Code. We have considered the entire evidence and have given due weight to the opinions of the learned Sessions Judge and the Jury, and we hold that on the evidence the accused's guilt has been clearly proved.
(2.)Before referring to the evidence, it is necessary to consider the point of law which arises with respect to an important part of it, the statement made by the deceased as to the cause of his death. The date of the alleged occurrence was the 28 November 1917. This statement by Surendra was recorded on the 29 November 1917 at 10 P.M. by Babu Surendra Nath Ghosh, a Magistrate, who has since died. When it was recorded the Assistant Surgeon, P.W. No. 6, was present, and with reference to this statement he has given the following evidence: "Before the deceased died I wrote to the Magistrate to have his dying declaration recorded. The Sub-Deputy Collector, Surendra Nath Ghosh, came and recorded his dying declaration on the 29 night. He recorded the declaration in my presence. Surendra Babu is dead. This was over two years ago. Exhibit 2 is the dying declaration as recorded by Surendra Babu in my presence. I know Surendra Babu's handwriting and signature. He read it over to the deceased in my presence. The declarant Surendra admitted it to be correct. Exhibit 2 read over." It is contended on behalf of the accused that this evidence is insufficient to render the recorded statement, Exhibit 2, evidence in the case. Our attention has been drawn to several decisions on this point, but it is not necessary to refer to them all in detail. The main point on which they turn is that if the statement of a deceased person as to the cause of his death is recorded by a Magistrate, the mere signature of the Magistrate to that statement is not sufficient to make that statement admissible in evidence, but there must be direct proof that such statement was made. Some of these decisions go on to say that in order to prove the statement it is necessary that the Magistrate should be called and that he should refresh his memory by reference to the statement recorded by him. But, so far as these decisions direct how the statement is to be proved, the remarks in the judgments are mere obiter dicta.
(3.)In all the cases cited, except one, to which we will refer, the only point that is actually decided was that the recorded statement was not admissible in evidence because no proof bad been given that the deceased person made that statement. The only reported case of those that have been cited in which it appears that the person who recorded the statement was examined as a witness is the case of King-Emperor V/s. Daulat Kunjra 6 C.W.N. 921. In that case the statement of the deceased was wrongly treated as the First Information. It was held that it was not admissible as First Information, and then the prosecution wished to make it admissible under Section 32 of the Evidence Act. It was held that it could not be regarded as evidence, because the course indicated in the case of Empress V/s. Samiruddin 8 C 211 : 10 C.L.R. 11 : 4 Ind. Dec. (N.S.) 135 had not been followed. Hut the report, though it indicates that the Police Sub-Inspector who recorded the statement was examined as a witness, does not show what evidence he gave as to this statement. The case of Empress V/s. Samiruddin 8 C. 211 : 10 C.L.R. 11 : 4 Ind. Dec. (N.S.) 135 has been treated as the leading case and is referred to in all, or nearly all, the cases cited. What was held there as regards the statement which was sought to be proved was, that the writing made by the Magistrate who recorded the statement could not be admitted to prove the statement made by the deceased. This statement must be proved in the ordinary way by a person who heard it made. In our opinion in the present case the evidence of the Assistant Surgeon fulfils that direction. The statement made by the deceased has been proved by a person who heard it made. An objection has been taken that, as the Assistant Surgeon neither himself recorded the statement nor read it at the time when it was made, he could not refresh his memory by reference to that statement under Section 159 of the Evidence Act. But we hold that the evidence that the deceased used the words contained in the statement given by the witness who can speak to these words by refreshing his memory is not the only way in which the statement of the deceased person can be proved. If the witness who heard that statement made swears that the written statement correctly reproduces the words used by the deceased, this is sufficient to prove that the deceased did use the words contained in that statement. Here, the important part of the evidence is that the dying declaration was recorded in the presence of a witness, that it was read over to the deceased in the presence of the witness and was admitted by the deceased to be correct. This, we think, is sufficient. Our view is supported by the case of Gouridas Namasudra V/s. Emperor 2 Ind. Cas. 841 : 36 C. 659 : 13 C.W.N. 680 : 10 Cr.L.J. 186. There, the written petition of complaint which contained the statement made by the deceased person as to the cause of his death, was admitted in evidence on being proved by the Mukhtear's Mohurrir, who had prepared it under personal instructions, and who deposed that the deceased made the statement to him which was correctly recorded in the petition. The case for the prosecution is, that the deceased, Surendra Nath Das, belonged to a village which was six miles from the place of occurrence which was village Thoura, Police-station Bongong. A fortnight before the occurrence the deceased, who was on friendly terms with one Rasik who lived in Thoura, borrowed a plough and cattle from him. On the day of occurrence he returned the plough and cattle and was accompanied on his return by Gour Hari, P.W. No. 2, the son of Rasik, who was then a boy aged about 14. Rasik had gone to a different village and there was no one in Rasik's bari when they returned. Gour Hari gave the deceased a smoke, and after smoking Surendra took up a jug of water and set out for the field to attend nature's call. On his way he passed through the courtyard of the accused Balaram. Balaram was sitting in front of one of the houses of his bari. He suddenly attacked Surendra with a dao and gave him four cuts on the back of his head and neck in quick succession. Balaram ran off with the dao. A number of persons assembled and information was sent to the Police station by the Choukidar and Nitai, P.W. No. 1, brother of Gour Hari, and the First Information was laid the same night at 3-30 A.M. Surendra was sent to the Hospital the following evening where he made the statement to which reference has been made. This story is, firstly, supported by the evidence of Gour Hari, the only witness who says that he actually saw the occurrence. Jogendra, the brother of Rasik, came on the scene immediately afterwards, and found Surendra lying wounded, and heard from him and Gour Hari that Balaram had caused these injuries. Amongst these persons were two boys, Amulya and Dukhiram. Dukhiram died between the occurrence and the trial, and it is on his evidence, recorded under Section 512 of the Criminal Procedure Code, that very great reliance is placed on behalf of the accused. His statement is, that be came on hearing the cries of murder and rushed to the courtyard and saw Surendra lying wounded. He did not see Balaram there. He could not understand what Surendra said. Later on, he said that some one had seized him from behind whom he could not see. Amulya was examined at the trial and only desposes that he found Surendra lying wounded. He neither states nor denies that Balaram was named as the person who had wounded Surendra. The evidence is that after the occurrence Balaram absconded and was not seen for 3 1/2 years till he surrendered to the Court.