1. In this case the six accused persons were tried by the Sessions Judge of Cuddapah with the aid of assessors. The first accused was charged tinder Sections 302 and 109 of the Indian Penal Code, and the remaining five accused were charged under Section 302, with reference to the death of one Kristna Reddi. The assessors found all the accused not guilty of the offences charged against them, and the Sessions judge, agreeing with them, has acquitted them. This appeal has been preferred by the Government against the order of acquittal. As against the 1st accused there is practically no evidence to connect him with the murder of Kristna Reddi.
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2. We must therefore hold that the acquittal of the 1st accused is right and the appeal against him will be dismissed.
3. As regards the case of the other accused, we have come to the conclusion that they must be retried. To begin with, the manner in which the learned Sessions Judge has recorded evidence in this case cannot be said to be satisfactory. Besides the evidence of Prosecution Witness No. 1 the alleged eye witness of the occurrence and of Prosecution Witness No. 2 who is said to have seen accused Nos. 2 to 6 run away immediately after the assault, the most important evidence against these accused consists of the dying declarations of the deceased. It was sought to prove the dying declarations by the evidence of men who heard the deceased making the statements and were in a position to state what they heard and by proving the document in which the statement was taken down and signed by the deceased. Now Prosecution Witness No. 5 is one of the witnesses who deposes to what the deceased stated. His deposition on this point is recorded thus:
I asked him (meaning the deceased) and he said that the five accused beat him.' The witness could not have used the words 'the five accused' as what he heard the deceased utter; not only the deceased's assailants were not accused at the time of assault, but the persons under trial were six in number and this witness's evidence as recorded does not indicate which five of the six accused the deceased said had assaulted him. Similarly the 2nd Prosecution Witness's evidence as to the dying declaration made by the deceased is recorded in this way. ' He said accused Nos. 2 to 6 beat him and wept.' It is of the utmost importance that evidence as to the dying declaration should be as exact and full as possible. We should have on record everything which a witness heard the deceased say, as to the transaction which resulted in his death. The dying statement of the deceased as heard by the witnesses who speak to it was apparently, if one is to judge from Exhibit A, much fuller than what the record of their depositions would show and it seems that the Sessions Judge has not recorded all that they said on the point.
4. Further we would point out that, when what is sought to be proved is the verbal statement of a dying person, the proper and legal mode of proving it is by eliciting from the person who heard the deceased make the statement, what the deceased said. If the statement was taken down in writing by the witness or by some one in the presence of the witness, the witness would be entitled to refresh his memory, if he so wanted, by referring to such writing ; otherwise the writing itself is not relevant unless it is in the nature of a, deposition taken in the presence of the accused. Where the deceased dictated his statement and it was taken down and he then signed the writing after being satisfied as to its accuracy, such writing may be regarded as a statement by the deceased in writings and would be admissible under Section 32 of the Indian Evidence Act. Exhibit A in this case would stand on this footing. But even if what was stated was taken down by some one in writing and signed by the deceased, that would not deber a witness who heard the statement from proving it independently of the writing. And ordinarily it would be desirable to have on record what the witness is able to reproduce from memory as what he heard the deceased state in addition to the writing in which the statement was taken down.
5. Further it appears that accused Nos. 2 to 6, who examined witnesses in support of their defence before the Committing Magistrate did not examine any witnesses for the defence in the Sessions Court.
6. Mr. Osborne, the learned Counsel who appears for them in support of the order of acquittal, states that the learned Sessions Judge at a very early stage of the case, either after the examination of the 1st or 2nd prosecution witness expressed a decided opinion that if that was all the important evidence in the case besides the dying declaration of the deceased, the case for the prosecution was not a strong one. Mr. Osborne says that he was led by that expression of opinion by the Sessions Judge to refrain from examining defence witnesses. We have no reason to doubt that that is probably what occurred in this connection. In these circumstances we set aside the acquittal and order a retrial of the case against accused Nos. 2 to 6.