The central legal point established in the judgment is the admissibility of dying declarations and depositions in criminal cases, as well as the standard for misdirection of the jury.

JUDGMENT

Graham, J. - This is an appeal by ten persons who have been convicted under Sections 147 and 304 read with Section 149, I.P.C. and sentenced to one year's rigorous imprisonment and six years' rigorous imprisonment respectively, the sentences being directed to run concurrently. The appellants Nos. 2, 3, 4, 5 and 9 have also been convicted u/s 323, I.P.C. and sentenced to six months' rigorous imprisonment.

2. The case for the prosecution was that, at about 11 p.m. on the night of 19th. April last one Mayan Khan, who died subsequently as the result of certain injuries received, hearing a noise in his cowshed, went outside, that lie was thereupon seized by a number of people who dragged him along and trampled upon him and beat him severely. His brother Ayen Khan who went to his aid is also alleged to have been beaten. Several of Mayan's ribs were broken and he died on the following day. At about midnight he had been brought to the house of one Jayan Pramanik. Information of the occurrence was lodged at the thana about a mile distant at 5 a. m. next morning. In the course of the investigation which followed a dying declaration was made by Mayan to the Sub-Inspector of Police. The Sub-Inspector was examined in the committing Court to prove this, but he died before the Sessions trial. The prosecution sought to put in the deposition of: the Sub-Inspector u/s 33, Evidence Act. The learned Sessions Judge held that it could not be admitted in evidence on the ground that no specific opportunity had been given to cross-examine the witness. While, however, disallowing the prayer to put in the deposition the learned Judge directed that portions of the statement itself as recorded by the Sub-Inspector, in which the names of Mayan Khan's assailants are mentioned, might go in on the ground that some of the witnesses had deposed to those statements as having been made by Mayan Khan in their presence to the Sub-Inspector. These facts are referred to because one of the main points in the appeal is connected with this dying declaration.

3. The accused all pleaded not guilty to the charges but do not appear to have set up any very definite defence. Some of them pleaded enmity and the accused Rahimuddi pleaded an alibi.

4. On behalf of the appellants objections have been taken to the learned Sessions Judge's charge upon several grounds. The ground upon which most stress was laid was that the learned Judge having rejected the dying declaration as inadmissible misdirected the jury by placing before them certain portions thereof relating to the names of the accused. Now the dying declaration could not as such be admitted in evidence. The method of proving such a statement, and the method, which so far as my experience goes as usually adopted, is to examine the person who recorded the statement as to what the deceased said, or to examine some person or persons who were present at the time and heard the statement being made. In this view of the matter the learned Sessions Judge erred in my opinion in admitting portions of the statement in evidence. It appears that those portions were exhibited, as the order of 10th January 1929 shows. In my judgment too the statement itself as recorded must either go in as a whole or not at all. If it is inadmissible, no portion of it should be allowed to go in evidence.

5. At the same time the learned Judge in my opinion was in error in holding that the deposition of the Police Sub-Inspector, which was recorded in the committing Court, could not be admitted in evidence, the ground given by him for so holding being that specific opportunity had not been given to the defence to cross-examine the witness. Section 33, Evidence Act, provides inter alia that the adverse party must have had the right and opportunity to cross-examine. There can be no doubt that the defence had that right u/s 208(2), Criminal P.C., and I do not see how it can be said that they had not the opportunity. If they wished to exercise their right, i