1. This case comes before us on reference under Section 307 of the Code of Criminal Procedure from the Officiating Sessions Judge of Jessore. The accused, Balaram Das, was charged with having committed culpable homicide not amounting to murder by causing the death of one Surendra Nath Das. The Jury unanimously found the accused not guilty. The learned Sessions Judge is clearly of opinion that to accept the verdict of the Jury would cause a failure of justice, and that the accused has committed the offence punishable under the first part of Section 304, Indian Penal Code. We have considered the entire evidence and have given due weight to the opinions of the learned Sessions Judge and the Jury, and we hold that on the evidence the accused's guilt has been clearly proved.
2. Before referring to the evidence, it is necessary to consider the point of law which arises with respect to an important part of it, the statement made by the deceased as to the cause of his death. The date of the alleged occurrence was the 28th November 1917. This statement by Surendra was recorded on the 29th November 1917 at 10 P.M. by Babu Surendra Nath Ghosh, a Magistrate, who has since died. When it was recorded the Assistant Surgeon, P.W. No. 6, was present, and with reference to this statement he has given the following evidence: 'Before the deceased died I wrote to the Magistrate to have his dying declaration recorded. The Sub-Deputy Collector, Surendra Nath Ghosh, came and recorded his dying declaration on the 29th night. He recorded the declaration in my presence. Surendra Babu is dead. This was over two years ago. Exhibit 2 is the dying declaration as recorded by Surendra Babu in my presence. I know Surendra Babu's handwriting and signature. He read it over to the deceased in my presence. The declarant Surendra admitted it to be correct. Exhibit 2 read over.' It is contended on behalf of the accused that this evidence is insufficient to render the recorded statement, Exhibit 2, evidence in the case. Our attention has been drawn to several decisions on this point, but it is not necessary to refer to them all in detail. The main point on which they turn is that if the statement of a deceased person as to the cause of his death is recorded by a Magistrate, the mere signature of the Magistrate to that statement is not sufficient to make that statement admissible in evidence, but there must be direct proof that such statement was made. Some of these decisions go on to say that in order to prove the statement it is necessary that the Magistrate should be called and that he should refresh his memory by reference to the statement recorded by him. But, so far as these decisions direct how the statement is to be proved, the remarks in the judgments are mere obiter dicta.
3. In all the cases cited, except one, to which we will refer, the only point that is actually decided was that the recorded statement was not admissible in evidence because no proof bad been given that the deceased person made that statement. The only reported case of those that have been cited in which it appears that the person who recorded the statement was examined as a witness is the case of King-Emperor v. Daulat Kunjra 6 C.W.N. 921. In that case the statement of the deceased was wrongly treated as the First Information. It was held that it was not admissible as First Information, and then the prosecution wished to make it admissible under Section 32 of the Evidence Act. It was held that it could not be regarded as evidence, because the course indicated in the case of Empress v. Samiruddin 8 C 211 : 10 C.L.R. 11 : 4 Ind. Dec. (N.S.) 135 had not been followed. Hut the report, though it indicates that the Police Sub-Inspector who recorded the statement was examined as a witness, does not show what evidence he gave as to this statement. The case of Empress v. Samiruddin 8 C. 211 : 10 C.L.R. 11 : 4 Ind. Dec. (N.S.) 135 has been treated as the leading case and is referred to in all, or nearly all, the cases cited. What was held there as regards the statement which was sought to be proved was, that the writing made by the Magistrate who recorded the statement could not be admitted to prove the statement made by the deceased. This statement must be proved in the ordinary way by a person who heard it made. In our opinion in the present case the evidence of the Assistant Surgeon fulfils that direction. The statement made by the deceased has been proved by a person who heard it made. An objection has been taken that, as the Assistant Surgeon neither himself recorded the statement nor read it at the time when it was made, he could not refresh his memory by reference to that statement under Section 159 of the Evidence Act. But we hold that the evidence that the deceased used the words contained in the statement given by the witness who can speak to these words by refreshing his memory is not the only way in which the statement of the deceased person can be proved. If the witness who heard that statement made swears that the written statement correctly reproduces the words used by the deceased, this is sufficient to prove that the deceased did use the words contained in that statement. Here, the important part of the evidence is that the dying declaration was recorded in the presence of a witness, that it was read over to the deceased in the presence of the witness and was admitted by the deceased to be correct. This, we think, is sufficient. Our view is supported by the case of Gouridas Namasudra v. Emperor 2 Ind. Cas. 841 : 36 C. 659 : 13 C.W.N. 680 : 10 Cr.L.J. 186. There, the written petition of complaint which contained the statement made by the deceased person as to the cause of his death, was admitted in evidence on being proved by the Mukhtear's Mohurrir, who had prepared it under personal instructions, and who deposed that the deceased made the statement to him which was correctly recorded in the petition. The case for the prosecution is, that the deceased, Surendra Nath Das, belonged to a village which was six miles from the place of occurrence which was village Thoura, Police-station Bongong. A fortnight before the occurrence the deceased, who was on friendly terms with one Rasik who lived in Thoura, borrowed a plough and cattle from him. On the day of occurrence he returned the plough and cattle and was accompanied on his return by Gour Hari, P.W. No. 2, the son of Rasik, who was then a boy aged about 14. Rasik had gone to a different village and there was no one in Rasik's bari when they returned. Gour Hari gave the deceased a smoke, and after smoking Surendra took up a jug of water and set out for the field to attend nature's call. On his way he passed through the courtyard of the accused Balaram. Balaram was sitting in front of one of the houses of his bari. He suddenly attacked Surendra with a dao and gave him four cuts on the back of his head and neck in quick succession. Balaram ran off with the dao. A number of persons assembled and information was sent to the Police station by the Choukidar and Nitai, P.W. No. 1, brother of Gour Hari, and the First Information was laid the same night at 3-30 A.M. Surendra was sent to the Hospital the following evening where he made the statement to which reference has been made. This story is, firstly, supported by the evidence of Gour Hari, the only witness who says that he actually saw the occurrence. Jogendra, the brother of Rasik, came on the scene immediately afterwards, and found Surendra lying wounded, and heard from him and Gour Hari that Balaram had caused these injuries. Amongst these persons were two boys, Amulya and Dukhiram. Dukhiram died between the occurrence and the trial, and it is on his evidence, recorded under Section 512 of the Criminal Procedure Code, that very great reliance is placed on behalf of the accused. His statement is, that be came on hearing the cries of murder and rushed to the courtyard and saw Surendra lying wounded. He did not see Balaram there. He could not understand what Surendra said. Later on, he said that some one had seized him from behind whom he could not see. Amulya was examined at the trial and only desposes that he found Surendra lying wounded. He neither states nor denies that Balaram was named as the person who had wounded Surendra. The evidence is that after the occurrence Balaram absconded and was not seen for 3 1/2 years till he surrendered to the Court.
4. As regards the motive, according to the case of the prosecution, there had been no previous quarrel between the accused and Surendra. After the occurrence Surendra himself said, 'what have I done to Balaram dad a that he cuts me.' By the time the First Information was laid it had occurred to the informant that the only possible cause of this incident was that Balaram bad recently lost his son and might have suspected that Surendra, who was both a Kaviraj and a magician, might have caused the death of his son, because after Surendra's medical treatment failed Balaram called another Doctor. This also is the motive suggested by Surendra in his statement at the Hospital, and he states that he suggested his motive on information given to him by other people.
5. We have gone carefully through the evidence and our attention has been drawn to such discrepancies as there are in the statements of different witnesses. The only discrepancy to our minds of any importance is that contained in the evidence of Dukhiram that Surendra at one time said that he did not know who struck him. But We do not think that this statement of Dukhiram, which is proved by his bare deposition, is sufficient to rebut the abundant evidence that, from the time of the occurrence until his death, Surendra named Balaram and no other person as the person who injured him; and even if the statement of Dukhiram be believed it does not disprove that, prior to that, Surendra had named Balaram, and there can be no doubt that he named him at the Hospital. If Surendra really had been in ignorance as to who caused these injuries no reasonable suggestion has been made why he should name the accused. Further, no satisfactory reason has been suggested why Gour Hari should be disbelieved. The defence set up before us is that Surendra was injured by some person unknown, and that his injury was inflicted because Surendra was misbehaving himself with the widowed sister of Gour Hari. This widowed sister, according to the evidence, was not more than 12 years old, and beyond the fact of her existence we cannot find an atom of evidence to justify any suggession against either her character or that of the deceased; nor can we believe on the undoubted facts that the injury to the deceased could have been inflicted without any body knowing who had done it.
6. It is suggested that the wounds described in the medical evidence could not have been inflicted in the manner described by Gour Hari. That suggestion we cannot accept. Gour Hari says Balaram caught hold of Surendra's back hair and wounded him on the neck. We cannot see any reason why Balaram could not have inflicted at any rate the second and fourth wounds which are on the back of the neck while he was holding Surendra's back hair.
7. Another point urged is that, had the injuries been inflicted in the manner described, Balaram would not have been allowed to escape. That suggestion is based on the statement of Nitai that the Choukidar was at Balaram's house when Nitai arrived and also that Balaram was there. But the statement that Balaram was there is so recorded that it is not clear that at the time Nitai made that statement he was thinking of the point of time when he arrived at the spot. Having regard to the other evidence we think there can be no doubt that Balaram went off immediately after inflicting the wounds.
8. Reference has been made to the omission to examine other witnesses. The evidence of Dukhiram and Amulya shows that the inmates of the accused's bari were not inclined to assist the prosecution, and the prosecution were justified in believing that the other inmates, if examined, would not speak the truth and that is sufficient cause for omitting to call them. Apart from the inmates of the accused's bari, other persons had been named who might have been called, but it is not shown that they could have given any further information than had been already furnished; for instance, it is said that Panchu who informed Nitai should have been examined. But there is nothing to show that Panchu knew anything except what he had heard from others when he was sent to call Nitai.
9. Another point made is that there is some discrepancy between the evidence of the witnesses and the rough sketch or plan prepared by the Investigating Police Officer as to the actual place of occurrence. The plan and also the evidence of one of the witnesses shows that the hut occupied by Balaram was the north hut of those in Balaram's bari. According to the evidence the occurrence was at the door of Balaram's house. The map shows that it took place at the door of the room occupied by his sister Kumudini. The witnesses were not cross-examined on this point, and it is not quite clear what they meant by Balaram's house. It may be that they were speaking of the bari as a whole, and referred to all he huts as being in Balaram's bari and not specifying any particular hut, or it may be that the officer who prepared the map was misinformed as to the actual place of, occurrence.
10. However that may be, we do not think that the discrepances are of sufficient importance to detract from the value of the prosecution evidence as a whole.
11. In a case like the persent, which depends on the belief or disbelief of witnesses, we hesitate to reverse the decision of a unanimous Jury, but in the present case the verdict of the Jury appears to us so incomprehensible that we are unable to accept it. It may be that they were misled because the evidence of motive was not clear. But that is no reason for disbelieving the plain straightforward case told by the principal prosecution witnesses. We think that the motive suggested is probably the true one. The accused, owing to the death of his son, might have been in such a state of mind that he conceived a grudge against the deceased and in a fit of passion attacked him in the way he had done. The accused, as already stated, was on his trial on the charge of culpable homicide not amounting to murder. On the facts which we hold to be found he undoubtedly committed that, unless he committed the more serious offence of murder. As that offence was not charged we could not convict him of the more serious charge. We find him guilty of the offence charged, namely, having committed culpable homicide not amounting to murder by causing the death of Surendra Nath Das, and we sentence the accused to ten years' rigorous imprisonment.