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Petitioner: SUDDHA SARDAR AND OTHERS VS Respondent: THE STATE
P L D 1958 Dacca 154
P L D 1958 Dacca 154
Before Rahman and Hasan, CJ
SUDDHA SARDAR and others‑Appellants
versus
THE STATE‑Respondent
Appeals Nos. 425 and 437 to 378 of 1956, decided on 10th June 1957.
(a) Evidence Act (1 of 1872), S. 3 (2)‑Words "produced for the inspection of the Court"‑Meaning and interpretation.
"Produced for the inspection of the Court" means pro duced in accordance with the provisions of the Evidence Act. Merely because a document was contained in the record of the Committing Court, it cannot be said that it automatically becomes evidence in the Court of Session and was produced for the inspection of the Court of Session.
(b) Evidence Act (1 of 1872), S. 80‑Dying declaration Admissibility of‑Requires to be proved that it was the statement of that particular person who was supposed to have made it.
If a dying declaration could be admitted under section 80 of the Evidence Act it would still require to be proved that it was the statement of the particular person who was supposed to have made it. For these reasons, a dying declaration, as such, cannot prove itself under section 80 of the Evidence Act and, therefore, to become admissible, it must be proved in one or other of the ways provided by the Evidence Act for the proof of documents.
A dying statement of a deceased person must be taken in the presence of an accused and must be proved in the ordinary way by a person who heard it and then only it would be admissible in evidence, for, in such circumstances, only the person proving the same would be entitled to use the document for refreshing his memory.
Empress v. Samiruddin I L R 8 Cat. 211 ; King‑Emperor v. Daulat Kunjra 6 C W N 921 ; Panchu Das v. Emperor I L R 34 Cal. 698 ; Gouridas Namasudra :v. Emperor I L R 36 Cal.659 ; Sulaiman v, The King A I R 1941 Rang 301; The Public Prosecutor v. eevarathnam and others A I R 1948 Mad. 503 ; Mahbub Shah v. The King‑Emperor 49 C W N 678 (P C) ; Elahi Baksha alias Elahi Baksha Mondal and others v. The Crown 7 D L R 358 and The Emperor v. Molla Khan Kabuli alias Hamidulla and others 37 C W N 1061 ref.
Suraj Bali v. Emperor A I R 1934 All. 340 disagreed.
Nurul Amin and A. Hakim for Appellants.
A. Hye Choudhary for the State.
JUDGMENT
RAHMAN, J.‑These two appeals are by nine accused persons of whom appellants Nos. 1 to 5 in Criminal Appeal No. 425 of 11456 and the two appellants in Criminal Appeal No. 437 of 1956 have been convicted both under sections 148 and 304, Part I, read with section 34 of the P. P. C. and sentenced to suffer rigorous imprisonment for three years and six years respectively on each count. The sentences have, however, been made to run concurrently. Appellants Nos. 6 and 7 in Criminal Appeal No. 425 of 1956 have only been convicted under section 148 of the P. P. C. and sentenced to suffer rigorougs imprisonment for three years each.
The appellants in Criminal Appeal No. 425 of 1956 have been represented before us by Mr. Nurul Amin and the appellants in Criminal Appeal No 437 of 1956 have been represented by Mr. Abdul Hakim whilst the State has been represented in both these appeals by Mr. Abdul Hye Choudhury.
All these nine appellants were charged under section 148 of the P. P. C. and seven of them, excluding appellants No. 6 and 7 in Criminal Appeal No. 425 of 1956, were further charged under sections 304/34 of the P. P. C. They were tried together by a jury consisting of five persons who by a unanimous verdict found the first five appellants in Criminal Appeal No. 425 of 1956 and the two appellants in Criminal Appeal No. 437 of 1956 guilty under both the aforesaid sections as also found the two appellants Nos. 6 and 7 in Criminal Appeal No. 425 of 1956, guilty under section 148 of the P. P. C. The prosecution case against the appellants was that they had formed themselves into an unlawful assembly with the common object of assaulting the deceased Nasir Sardar alias Nasiruddin Sardar and had thereby committed the offence of rioting, being armed with deadly weapons such as sulphis and lathis. Appellants Nos. l to 5 in Criminal Appeal No. 425 of 1956 and the appellants in Criminal Appeal No. 437 of 1956 were further accused of having committed culpable homicide, not amounting to murder, by causing the death of the said Nasir Sardar in furtherance of the common intention of them all. The deceased Nasir Sardar alias Nasiruddin Sardar was a resident of Mouza Boalia within Naogaon Police Station, Rajshahi. It is alleged that on the morning of the 12th of November 1955, corresponding to the 25th of Kartick 1362, B. C., he had gone to plough his plot of land comprised in C. S. plot No, 1949 of the said Mouza Boalia. The said C. S. plot 1949 comprised within it various sub‑plots, one of which was claimed by the said deceased to be his whilst some of the other plots belonged to some of the accused in this case.
Before starting for the field, the deceased had asked his son Nazrul Islam, P. W. 3, to bring to the field his bidis and match box. Accordingly, at about 7 or 7‑30 a.m., the said Nazrul Islam proceeded to the field with the bidis and the match box but whilst he was on the way he saw the appellants Abdus Sattar, Badaruddin and Budhai rushing from the east with lathis in their hands towards the deceased shouting dhar shalake (catch hold of the shala). Seeing this, the deceased unyoked the bullocks and began to run towards the west with plough on his shoulder but, as he found that his pursuers were gaining upon him, he. threw off the plough when he was on the land of one Askar and began to run faster. But as he reached the western portion of the land of one Gana Mondal, the appellants Sudha Sardar, Atab alias Atabuddin, Moyezuddin, Dola, Kusha and Badaruddin who were hiding behind the ail of the lard suddenly sprang upon the deceased, surrounded him and started beating him up. In the meantime, ‑ the appellants Sattar, Badaruddin and Budhai also reached the snot and joined in the beating of the deceased. After some 'ime, tte appellant Atab told the other appellants that as the deceased had been finished, they should go away and the appellants thereafter dispersed from the place in different directions.
At about this time, the nephew of the deceased, Abdul Aziz, P. W. 1, who was near his tank, heard the cry of the first three pursuers of the deceased and at once ran towards his uncle whom he found fleeing away with the plough on his shoulder chased by the first named three appellants. The hue and cry attracted many other persons also who came and witnessed the occurrence from a little distance and saw all the nine appellants before us assaulting the deceased. The hue and cry also attracted p. W. 6, Taleb Ali, who started for the scene of the incident and found the appellants Sudha, Budhai, Arab, Sattar and Bahar returning from the field with lathis and sulphis in their hands.
After the miscreants had retreated, the people collected there, went to the place of the incident, saw the deceased lying there with multiple injuries but still not quite uncon scious. They removed him to the Naogaon Hospital where he died in the morning of the following day.
The first information report in this case was lodged by P. W. 1, the
nephew of the deceased, at about 4 p.m. at Naogaon Police Station which is only about I mile away from the place of the incident. In this first information report, the informant stated that there had been some delay on his part in coming to the police station after making arrangements for the treatment of the deceased. In the first information report, the appellants in Criminal Appeal No. 437 of 1956 were also not named as the accused. On the basis, 'however, of this first information report, the investigation was taken up by the police officer who visited the hospital and found the deceased with multiple injuries on his person receiving treatment there. After his death in the hospital. the inquest on his dead body was held there and later forwarded 'to the morgue for post‑mortem examination under the escort of constable, P. W. 8. On completion of the investigation, the investigating officer, P. W. 15, sent up all the nine appellants before us for trial. A preliminary enquiry was held by a Magistrate of the 1st class and the nine. appellants were committed .to stand their trial before the Court of Session.
At the trial, the appellants all pleaded not guilty and their case briefly was that they did not take any part what soever in the assault on the deceased Nasir Sardar but that they had been falsely implicated in this case out of grudge and previous enmity.
It also transpired in the prosecution evidence that some months before this occurrence the deceased, one Yasin and another person assaulted one Reajuddin, a full brother of the appellants Sattar and Arab. Over this incident a criminal case was also started against the deceased and the said two other persons, which was actually pending at the time of the alleged occurrence and ultimately ended later in the con viction of both the other two accused in that case. In addition to this, it was also suggested by the defence to P. W. 1, the complainant in this case, that there was litigation over C. S. plot No. 1949 between some of the accused on the one side and the deceased acid his co-sharers on the other. This witness also admitted that the four appellants Sudha, Atab, Budhai and Sattar possessed some lands of C. S. plot 1949 in the easternmost portion thereof.
In support of its case, the prosecution examined some 15 witnesses, of whom P. Ws. 1, 2, 3, 4, 5, 13 and 14 claimed to be the eyewitnesses of the occurrence ; P. W. 6 arrived at the scene later and only saw .some of the appellants retreating armed with sulphis and lathis ; P. W. 9 was the witness only to the seizure list and P. W. 10, a pound‑keeper of Shapur, was also a formal witness called to prove the impounding of the bullocks of the deceased.
In support of the charge under section 34 of the P. P. C., the prosecution also examined two witnesses, P, Ws. 11 and 12, who purported to give direct evidence of a conspiracy being hatched, to kill the deceased, between some of the appellants in the house of one Reajuddin on the night preceding the day of occurrence. Apart from these, P. W. 7 was the doctor who carried out the post‑mortem examination. P. W. 8 was the constable who escorted the dead body to the margue and P. W. 15 was the investigating officer in this case.
The learned Assistant Sessions Judge of Rajshahi elabo rately analysed and marshalled this evidence in the Heads of Charge delivered by him to the jury, drawing their attention to 411 the discrepancies and contradictions therein, as also to all the circumstances in favour of that appellants. He also made it a point to deal with the various defence suggestions put forward on behalf of the appellants.
The learned Advocate appearing on behalf of the appellants, however, have assailed this charge to the jury as being full of misdirections and non‑directions on material points, as also of being vitiated by the exclusion of material evidence from the jury.
Although different sets of arguments were advanced before us by the learned Advocates appearing in these two appeals, we propose to deal with them together, for most of these contentions are common to the cases of all the appellants.
The first misdirection alleged is that the learned Judge seriously erred in not taking into consideration a dying decla ration said to have been made by the deceased and recorded by a Magistrate, although this was admitted by P. W. 15, the investigating officer, in his evidence and was, indeed, con tained in the record sent up by the committing Court. It is alleged that the learned judge thereby with‑held a material piece of evidence from the jury. Thus, even though he emphatically directed the jury that this dying declaration had been with‑held by the prosecution for no reason at all and, hence, the jury were at liberty to presume against the prosecution under section 114 of the Evidence Act for with‑holding this evidence regarding the dying declaration and for not examining the Magistrate who recorded the same and to direct their decision accordingly, this could not, according to the learned Advocates, take the place of direct evidence, for, it is difficult to tell what effect it might have produced on the jury if it had, in fact, been brought into evidence.
It is contended that since the said dying declaration was on the record of the committing Court which had been sent up to the Court of Session, it was evidence under section 3 of the Evidence Act and no further proof thereof was necessary, as it, having been recorded by a Magistrate competent to record a dying declaration, ipso facto proved itself under section 80 of the Evidence Act and, hence, the learned Assistant SesFions Judge should have admitted it into evidence and directed the jury that the presumption under the said section of the Evidence Act was that it was genuine and that it was duly taken. In support of this contention, reliance has also been placed on a decision in the case of Suraj Bali v. Emperor (A I R 1934 All. 340) where Bennet, J. in more or less similar circum stances held that "a dying declaration before a Magistrate and recorded by him is evidence and can be admitted without proof under section 80 of the Evidence Act".
Section 3 of the Evidence Act defines what is evidence and clause (2) of the said definition provides that all docu ments produced for the inspection of the Court are called documentary evidence. This definition does not say that any and every document is evidence but it only makes documents produced for the inspection of the Court evidence. Produced for the inspection of the Court, must necessarily mean produced in accordance with the provisions of the Evidence Act, that is to say, proved in the case in accordance with those provisions. In the present case, therefore, we areA unable to accept the contention that merely because a document was contained in the record of the committing Court, it automatically became evidence in the Court of Session and was produced for the inspection of the Court of Session. If that be so, then, indeed, it may not be necessary to examine any witness at all in the Court of Session, because, the depositions of all the witnesses taken in the commuting Court are also sent up to the Court of Session. We are unable to agree that merely because a document, when produced for the inspection of the Court, becomes evidence it follows that all and every document even though not so produced for the inspection of the Court; is also evidence. The learned Advocate himself must have felt this difficulty, hence the recourse to the provisions of section 80 of the Evidence Act, which reads as follows :‑
"Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any judge or Magistrate, or by any such officer as aforesaid, the Court shall presume‑ that the document is genuine ; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken".
Here again it should be observed that the section requires that the document must be produced before the Court. As we have already indicated, in this case. the document con cerned was not even produced before the Court of Session and, hence, there was no question of the presumption under section 80 of the Evidence Act attaching to it. We, how ever, go further. Even assuming that the document had been produced before the Court, we have to point out that the presumption under this section attaches not to all and every kind of document but only to two kinds of documents, namely ; (a) a record or memorandum of the evidence or any part of the evidence given by a witness in a judicial proceeding or before an officer authorised by law to take such evidence and (b) the statement or confession by a prisoner or accused person taken in accordance with law. A dying declaration does nor tall within either of the above two categories and, therefore, the presumption under section 80 of the Evidence Act does not, in our opinion, attach to dying declarations as such. The possibility of a dying declaration being admitted under section 80 of the Evidence Act, in our view, can only arise when the dying declaration is taken as a deposition in tile course of a judicial proceeding or before an officer authorised by law to take it, as for example, under section 164 of the Code of Criminal Procedure. Furthermore. the obvious fallacy in this argument is that it assumes that section 80 of the Evidence Act also raises a presumption that a document is what it purportslI to be. It, in our opinion, does not. Thus, ever, if a dying declaration could be admitted under section 80, it would still require to be proved that it was the statement of the particular person who was supposed to have made it. For these reasons, we have no manner of doubt that a dying declaration, as such, cannot prove itself under section 80 of the Evidence Act and, therefore to become admissible, it must be proved in one or other of the ways provided by the Evidence Act for the proof of documents. We are also strengthened in this view by a series of decisions of the Calcutta High Court as well as of some of the other High Courts. Thus, as early as 1882, the Calcutta High Court to the case of Empress v. Samiruddin (JLR 8 Cal. 211) held that a dying statement of a deceased person must be taken in the presence of an accused and must be proved in the ordinary way by a person who heard it and then only it would be admissible in evidence, for, in such circumstances, only the person proving the same would be entitled to use the document for refreshing his memory. So far as we are aware, the principle laid down in this case has not been departed from in the Calcutta High Court. Thus, in the case of King‑Emperor v. Daulat Kunjra (6CWN921) Punchu Das v. Emperor (I L R 34 Cal. 698) and Gouridas Namasudra v. Emperor (I L R 36 Cal. 659) the decision in I L R 8 Cal. 211 was cited and approved. In the case of Sulaiman v. The King (A I R 1941 Rang. 301) Mosely, J., before whom it was also argued' that the presumption under section 80 of the Evidence At attaches to a dying declaration also, held that the dying declaration had to be proved, for it was not a record of the evidence given by a witness before an officer authorised by law to take such evidence. In view of these authorities, we are unable to agree with the decision in the case of Suraj Bali v. Emperor and prefer to follow the Calcutta view which has been consistently held since the decision in I L R 8 Cal. 211. Alteratively, the learned Advocates have argued that even if the dying declaration was not evidence in this case and did not prove itself under section 80 of the Evidence Act, this Court should, in the ends of justice, take it into evidence as additional evidence under section 428 of the Code of Criminal Procedure, since the only questions here is one of mere formality of proof of the document concerned. In support of this contention, reliance is placed on the decision in the case of The Public Prosecutor v. eleevarathnam and others (A I R 1948 Mad. 503) where Govinda Menon, J. admitted a Customs Union Agreement entered into between the Government of India and the Governor of the French Establishment in India at the appellate stage as additional evidence since he considered it to be a question only of the formal proof of the document. The document, it appears, was a printed copy of the said agree ment which was filed supported by an affidavit of an official of the Central Excise Department. It is further urged that since such additional evidence need neither be recorded in the presence of the jury nor need the accused be further examined under section 342 of the Code of Criminal Procedure, there can be no possible objections to this procedure being adopted.
Section 428 of the Code of Criminal Procedure undoub tedly gives wide powers to this Court, sitting even as a Court taking criminal appeal, to admit additional evidence when it considers such additional evidence necessary for the decision of the case. But in the present case we are not convinced that the admission of such additional evidence is at all necessary, for, we find that the learned Assistant Sessions Judge has very clearly and categorically directed the jury that they should proceed to take their decision in this case upon the basis that the dying declaration, if produced. would not support the prosecution case, as they were entitled to so presume under section 114 of the Evidence Act. We do not, therefore, see what greater benefit can be gained by the appellants by the admission of such additional evidence This was a direction on a point of law which the jury was bound to follow and we have no reason to doubt that the jury did perform its functions properly in the present case. There would possibly have been no difference to their decision even if the document had been admitted into evidence and it showed that the appellants are not named therein because, under the presumption which they were asked to draw by the learned Assistant Sessions judge, that was precisely what he wanted them to do, namely, take for granted that the dying declaration did not name any of the appellants. In these circumstances, we do not consider it necessary at all to call for this additional evidence, nor do we think that the non‑admission of this dying declaration has prejudiced the appellants in any way. For these reasons, we also reject the separate application put in on behalf of the appellants in Criminal Appeal No. 437 of 1956 for the admission of this additional evidence. For the same reasons, we are also not impresed by the argument that the admission of the dying declaration into evidence would have made any material difference to the verdict of the jury.
The next ground of attack is that the learned judge has misdirected the jury by omitting to place before the jury certain material facts deposed to in the evidence by the prosecution witnesses but not mentioned in the first infor mation report, namely,
(a) that some of the alleged eye‑witnesses, as for an ample, P. Ws. 3. 4, 5 and 14, have not been named in the first information report by the informant,
(b) that no motive has been alleged in the first informa tion report,
(c) that the alleged story of conspiracy, now sought to be brought into the record by the oral testimony of P. Ws. 11 and 12, was not alleged in the first information report, even though the evidence of P. W. 12 is that he informed P. W. 1, the complainant in this case, before the latter went to lodge the first information report, and
(d) that the appellants in Criminal Appeal No. 437 of 1956 have not been named in the first information report as accused persons.
Now with regard to the first alleged omission, we have to point out that in the first information report the informant named four persons and stated that these and many others saw the occurrence and heard of it. Out of the four persons named in the first information report, three, namely, P. Ws. 2, 6 and 13, were, in fact, examined by the prosecution. In the circumstances, we do not think that this is an omission at all because the informant was not bound to name each and every one of the persons who came there or saw the occurrence or heard of it. In any event, the learned judge was, in our opinion, perfectly right in drawing the attention of the jury to the fact that the first information report cannot be treated as substantive evidence and used for contradicting any of the witnesses other than the informant himself. Thus, even if this omission had been placed before the jury, the judge would, in fairness to the prosecution, have been found to direct them that, for this reason, the jury should not use this omission for the contradiction of the said witnesses who also claimed to be eye‑witnesses although they were not named in the first information report as such witnesses.
With regard to the motive, which, of course, is normally not relevant in a criminal prosecution, we find, in the present case, that the motive that was alleged, namely, retaliation for the assault on Reajuddin leading up to the criminal prosecution of the deceased and two others was, in fact, not disputed by the defence itself. Indeed, in the cross‑exami nation of P. W. 1, the defence itself extracted from the said witness that Yasin and Abdur Rashid, the other two…
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