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CALCUTTA HIGH COURT
Francis Maclean, C.J, Carnduff, J.
Gouridas Namasudra & Ors. - Appellant
Versus
Emperor - Respondent
Decided On : 21-11-1908
Criminal Law - Murder - Indian Penal Code, Section 302 - Indian Penal Code, Section 326 - Indian Penal Code, Section 34 - Evidence Act, Section 32 - Evidence Act, Section 91 - Criminal Procedure Code, Section 200 - Criminal Procedure Code, Section 162 - Dying Declaration - Admissibility - Proof - Common Object - Sentence - - - The court discussed the admissibility of a dying declaration recorded by a Magistrate under Section 200 of the Criminal Procedure Code. The court held that the statement was admissible under Section 32 of the Evidence Act as a statement made by the deceased about the circumstances of his death, even though it contained a complaint. The court also held that the Magistrate should have been examined to prove the contents of the statement, as it was not a document required by law to be reduced to writing. The court further discussed the application of Section 34 of the Indian Penal Code, which deals with the liability of persons who share a common object. The court held that the appellants who did not strike the fatal blow could not be held liable for murder under Section 302, as they did not contemplate the likelihood of such a blow being struck by the others. The court convicted the appellants under Section 326 of the Indian Penal Code for causing grievous hurt and sentenced them to seven years' rigorous imprisonment.
Fact of the Case:
Three appellants were convicted of murder and causing simple hurt. The deceased was attacked and injured, and he lodged a complaint with the Magistrate. The Magistrate recorded his statement under Section 200 of the Criminal Procedure Code, which was treated as a dying declaration. The defense argued that the deceased's statement was a complaint and not a dying declaration, and that the Magistrate should have been examined to prove its contents. The prosecution argued that the statement was admissible as a dying declaration under Section 32 of the Evidence Act. The court found that the appellants assaulted the deceased, and that two of them struck him on the head with lathis. The court also found that the deceased was in the wrong, as he had allowed his cattle to trespass on the appellant's field.
Finding of the Court:
The court found that the appellants assaulted the deceased, and that two of them struck him on the head with lathis. The court also found that the deceased was in the wrong, as he had allowed his cattle to trespass on the appellant's field. The court held that the statement recorded by the Magistrate was admissible as a dying declaration under Section 32 of the Evidence Act, but that the Magistrate should have been examined to prove its contents. The court further held that the appellants who did not strike the fatal blow could not be held liable for murder under Section 302, as they did not contemplate the likelihood of such a blow being struck by the others. The court convicted the appellants under Section 326 of the Indian Penal Code for causing grievous hurt and sentenced them to seven years' rigorous imprisonment.
Issues: The issues raised in the case were: (1) whether the statement recorded by the Magistrate was a dying declaration or a complaint, and (2) whether the Magistrate should have been examined to prove the contents of the statement. The court also considered the application of Section 34 of the Indian Penal Code, which deals with the liability of persons who share a common object.
Ratio Decidendi: The court held that the statement recorded by the Magistrate was admissible as a dying declaration under Section 32 of the Evidence Act, but that the Magistrate should have been examined to prove its contents. The court further held that the appellants who did not strike the fatal blow could not be held liable for murder under Section 302, as they did not contemplate the likelihood of such a blow being struck by the others. The court convicted the appellants under Section 326 of the Indian Penal Code for causing grievous hurt and sentenced them to seven years' rigorous imprisonment.
Final Decision: The court dismissed the appeal of the appellant who was convicted of causing simple hurt. The court convicted the other two appellants under Section 326 of the Indian Penal Code for causing grievous hurt and sentenced them to seven years' rigorous imprisonment.
JUDGMENT
1. The appellants before us are three namasudras, Gouridas, Girish and Gurudas, the brother of Girish. They have been convicted by the Sessions Judge of Tipperah, who, differing from both the Assessors, has found Gouridas and Gurudas guilty of the murder of one Saheb Ali, and Girish guilty of having caused simple hurt to the deceased. Girish has been sentenced to three months' rigorous imprisonment u/s 323 of the Indian Penal Code, while the sentence on each of his companions is transportation for life u/s 302.
2. Two points of law have been raised, and these we will dispose of at once
3. Saheb Ali was attacked and injured at Srirampore on the 28th May last. On the 29th he went to Brahmanberia and lodged a petition of complaint before the Magistrate, who examined him on oath, recorded his statement in compliance with the provisions of Section 200 of the Criminal Procedure Code, and sent him to hospital, where he died on the 31st. The statement recorded by the Magistrate has been treated as a " dying declaration," and it has been proved by the production of the magisterial record, the learned Sessions Judge holding that, tinder Section 91 of the Indian Evidence Act, no other evidence was admissible. In this connection it is contended (i) that the statement was complaint and, therefore, not a " dying declaration," and (ii) that, if it was admissible as a "dying declaration," the Magistrate ought to have been examined to prove its contents.
4. In the first contention we find no substance. The statement to the Magistrate was clearly admissible u/s 32, Clause (1), of the Evidence Act, as having been made by the deceased as to " circumstances of the transaction which resulted in his death;" and it did not cease to be such a statement because it contained a complaint and had, in the circumstances, to be recorded u/s 200 of the Criminal Procedure Code.
5. As regards the second point, however, we are disposed to agree with the learned pleader for the appellants. A dying declaration," as such, is not a matter required by law to be reduced to the form of a document;" therefore, Section 91 of the Evidence Act ought not to have been applied; and, as was held by this Court in Empress v. Samiruddin 1881 8 C. 211and in King-Emperor v. Mathura Thakur 6 C.W.N. 72 more recently, the precise statement made ought to have been proved by the Magistrate who recorded it, or by someone who heard it. We think, then, that Ex. (1a), the recorded complaint must be excluded. But there remains the statement contained in the written petition of complaint, Ex. (1), prepared by the muktear's mohurrir (prosecution witness No. 4), who swears that the deceased made a statement in his presence and that it was ' correctly put down " in that petition. As this statement and that subsequently made to the Magistrate are practically the same, the exclusion of the latter does not affect the case.
6. As to the facts, the case for the prosecution is that the deceased was waylaid on the 28th May, and assaulted by the three appellants (and a fourth namasudra, Nanda, who appears to have absconded) out of revenge, Saheb Ali's brother, Ahab, having assaulted Girish a few days earlier on Girish's trying to impound Ahab's cattle for trespassing on his field. The scene of the occurrence was laid at a short distance from Girish's field.
7. The defence is that the deceased and his brother allowed their cattle to trespass on Girish's field on the 28th May, that Girish seized the cattle, and that the occurrence took place there in consequence of the intervention of the deceased and his friends. A vague counter-complaint to this effect was lodged by Girish on the 29th, and witnesses were produced at the trial to develop it. According to them the absconder, Nanda, and someone called Sita, came to succour Girish, and it was they alone who assaulted Saheb Ali. Girish was present, but took no part in the assault; Gouridas and Gurudas were not there at all; and, while one witness admits th
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