1. 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 under Section 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 under Section 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 under Section 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, it seems to me that it was incumbent upon them to claim it. The fact that they did not do so can only give rise to the inference that they did not wish to cross-examine in that Court, and that they reserved the crops-examination for the Sessions Court. The adept ion of that course necessarily involves some risk, though it is not a risk which would ordinarily be deemed to be a serious one.
6. In my judgment it is a case for the application of the maxim 'omnia praesumuntur rite esse acta.' It can fairly be assumed that there was opportunity to cross-examine the witness if the accused had chosen to exercise their right. The assumption it seems to me is that it existed and not the contrary. Now if the deposition had been admitted, as I hold it should have been, it is clear that it would have been to the disadvantage of the accused, because in that case the whole statement would have gone in instead of only a portion. To that extent the advantage is with the accused. But it is objected in this connexion that, if the whole deposition had been admitted, the defence would have been able to cross examine some of the witnesses, who have deposed concerning it, with a view to showing what really took place and discrediting the statement as recorded, as for example by proving that leading questions were put by the Sub-Inspector. We find, however, that as the result of the admission of a part of the dying declaration some of the witnesses were in fact cross-examined with the above object in view, and, that being so, there does not seem to be much substance in this objection, or in the objections generally with regard to the dying declaration.
7. The next point which was argued on behalf of the appellants was that the learned Judge misdirected the jury in telling them that they were to discard the evidence of certain prosecution witnesses as their story was inconsistent with the prosecution version, and the Public Prosecutor had thought fit to declare them hostile; whereas he ought to have made it clear to the jury that, although the prosecution was not entitled to rely on any part of the testimony of those witnesses, it was open to the jury to rely on their evidence in so far as it contradicted, or was inconsistent with the prosecution case and supported the defence version. If this ground and especially the first part of it had been substantiated, we should undoubtedly hold that there had been misdirection. The learned Judge does not, however, appear to have given any such direction. He certainly has not put it in the form in which it has been stated in ground 2 of the memorandum of appeal. The only passage in the charge which appears to support the contention on this point is at p. 10 thereof where this passage occurs:
This witness (the Judge is here referring to P.W. 2 Kafiluddin) should be wholly disbelieved for in the lower Court he did not give such a version.
8. That direction was apparently meant to be in favour of the defence, for it seems to amount to this that the Judge told the jury that this witness having given two different versions ought not to be believed. In substance that appears to be a proper direction. It is complained, however, that the Judge omitted to tell the jury that it was open to them to believe the evidence which this witness had given in the committing Court. The deposition of this witness was, however, put in by the defence under Section 288, Criminal P.C., and it was, therefore, evidence in the case and it was open to the jury to believe that evidence if they so wished.
9. The next ground of objection is that the learned Judge omitted to draw the attention of the jury to the delay in lodging the first information. The facts in this connexion are that the occurrence took place at 11 o'clock at night and the information was lodged at the thana one mile distant at 5 a.m., the following morning. It cannot be said that there was any inordinate delay so as to impose on the Judge the duty of drawing the particular attention of the jury to it.
10. It was next argued that the Judge should have drawn the attention of the jury to certain facts referred to in ground 4 of the petition of appeal. This relates to details and it is obviously not possible for a Judge to refer to every fact in this charge. We do not think that the omission to refer to the particular matters mentioned in this ground can be held to amount to misdirection.
11. Grounds 6, 7 and 8 in the memorandum of appeal were not pressed by the learned advocate for the appellants in view of the explanation which has been submitted by the Sessions Judge, and we think that the learned advocate in the circumstances very properly adopted this course. At the same time the legal advisers of the appellants cannot be altogether excused for making these somewhat reckless allegations, in particular the allegation contained in ground 6, which is to the effect that the Judge misdirected the jury in telling them, that, if there had been any reasonable doubt about the guilt of the accused, they would not have been committed to the Court of Sessions, It is not in the least likely that the learned Judge would have given any such direction in his charge, and he has categorically denied that he did so, and we accept his statement. The importance of the matter is this that appeals are sometimes admitted on such statements in. the grounds of appeal, and grounds of appeal ought to be carefully drawn up and with a due sense of responsibility.
12. Grounds 19, 21 and 22 were also briefly referred to, but were not seriously pressed, and we do not think that there is anything in them which would amount to misdirection.
13. In the result all the grounds which, have been urged fail, the appeal is dismissed, and the convictions and sentences are confirmed.
14. I agree.