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Abdul Gani Bandukchi and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1943Cal465
AppellantAbdul Gani Bandukchi and ors.
RespondentEmperor
Cases ReferredTilak Chandra Sarkar v. Baisagomoff
Excerpt:
- .....adduced by the prosecution which has any bearing at all upon the admissibility or otherwise of mokim's statement, is the evidence of p.w. 1, hachen ali matbar. all that he stated was that mokim was discharged from hospital 22 days after he was admitted, that thereafter he got fever, was attended by a doctor, and died seven days after leaving the hospital. the evidence of the doctor throws no light upon the cause of death. the investigating officer who recorded the statement in question merely says that shortly after the occurrence he found mokim to be in a sinking condition, that thereupon he recorded his statement, and then sent mokim to hospital, there is no evidence to show that mokim's injury led to his death. the prosecution in the present case did not seem to have realised.....
Judgment:

Khundkar, J.

1. This is an open rule, and it is directed against an appellate judgment of the Additional Sessions Judge of Faridpur, by which he upheld the convictions of and the sentences passed upon the twelve petitioners before us by the Magistrate. The petitioners were variously charged under Sections 326, 326/114, 323, 147 and 148, Penal Code. The sentences passed upon them varied from four months to nine months. On behalf of the petitioners two points have been taken before us. Firstly, it is contended that the judgment of the lower appellate Court is not in accordance with law, inasmuch as it does not comply with the requirements of Section 867/424, Criminal P.C. The second contention relates to what has been called the dying declaration of a man called Mokim Ali, who received injuries in the occurrence out of which the prosecution arose, and who subsequently died. It is argued that there is nothing upon the record to show that the death of Mokim Ali resulted from the injury which he received in the course of the affray, and that his so-called dying declaration is therefore not admissible as a statement within the meaning of Section 32(1), Evidence Act. In our judgment, both these points must prevail.

2. Section 424., Criminal P.C., enacts that the rules contained in chap. 26 of the Code as to the judgment of a criminal Court of original jurisdiction shall apply so far as may be practicable to the judgment of any appellate Court other than a High Court. Section 367 requires, amongst other things, that the judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision. The judgment of the lower appellate Court in the present case indicates the decision of the appellate Court in so far as it says that the learned Additional Sessions Judge agreed with the findings of the learned trying Magistrate. Neither the points for determination, nor the reasons for the decision have been set out. In a series of cases this Court has repeatedly called the attention of the Courts below to the necessity of writing an intelligible judgment in appeal. So far is the present judgment from answering that description, that we had to ask Mr. Chatterji who appears for the petitioners, to tell us what the case was about. The judgment says nothing about the nature of the occurrence and nothing about the prosecution case, and deals with the case for the defence only by seeking to answer, in a somewhat desultory and disjointed manner, the arguments of the defence pleaders. This is a very perfunctory way of dealing with a criminal appeal. The Deputy Legal Remembrancer who appears for the Crown has frankly, fairly and correctly conceded that this judgment is not in accordance with law. In these circumstances, we have no option but to direct that the appeal be re-heard either by the Sessions Judge, or by some other Additional Sessions Judge.

3. Regarding the second point taken in support of this rule, Mr. Chatterji has, as already stated, submitted that there is nothing upon the, record to indicate that the injury which Mokim received during the occurrence was a circumstance of a transaction which resulted in his death. We have examined the evidence for ourselves, and the only portion of the testimony adduced by the prosecution which has any bearing at all upon the admissibility or otherwise of Mokim's statement, is the evidence of P.W. 1, Hachen Ali Matbar. All that he stated was that Mokim was discharged from hospital 22 days after he was admitted, that thereafter he got fever, was attended by a doctor, and died seven days after leaving the hospital. The evidence of the doctor throws no light upon the cause of death. The investigating officer who recorded the statement in question merely says that shortly after the occurrence he found Mokim to be in a sinking condition, that thereupon he recorded his statement, and then sent Mokim to hospital, there is no evidence to show that Mokim's injury led to his death. The prosecution in the present case did not seem to have realised that, if they wanted to rely upon this statement, it was their duty to show by satisfactory evidence that it was a statement admissible under Section 82(1), Evidence Act. The provisions of this section are in the nature of exceptions, and the onus of establishing circumstances that would bring a statement within any of the exceptions contemplated by Section 32 lies clearly upon that party which wishes to avail itself of the statement. In our judgment, the prosecution in the present case has failed to discharge that onus. Upon the evidence as recorded, it is not possible to say that the statement in question is admissible because it comes within the terms of Section 82(1), inasmuch as there is nothing to show that the injury to which that statement related was the cause of Mokim Ali's death, or that the circumstances under which it was received resulted in his death, This being so, it will not be open to the learned Judge who rehears this appeal to consider that statement at all.

4. The rule is made absolute, and it is directed that this appeal be re-heard either by the learned Sessions Judge, or by an Additional Sessions Judge other than the trial Judge, to whom he may send the case for hearing. The petitioners will continue on their present bail.

Sen, J.

5. All the petitioners have been convicted of rioting and the first three petitioners, namely, (Abdul) Gani Bandukchi, Wahabali Sk., and Mamin Khan, have been convicted, also, of having caused grievous hurt, and hurt. They have been sentenced to various terms of imprisonment. Two contentions have been raised on behalf of the petitioners. The first contention is that the judgment is not a proper judgment at all and secondly, that the statement of Mokim Ali has been wrongly admitted in evidence.

6. I agree with my learned brother that both these contentions should prevail. The judgment is extremely unsatisfactory. It was impossible after going through the judgment to appreciate what the case for the prosecution was, what the defence was and what the various points urged on behalf of the Crown and the defence were. The learned Judge satisfies himself with making certain general statements that he agreed with the view of the learned Magistrate. This is certainly not enough. In a criminal appeal, it is for the Grown to establish that the judgment of the trial Court is right. The learned Judge should have remembered that the presumption of the innocence of the accused still persisted and that he had to satisfy himself that the judgment of the Magistrate was right. The learned Judge should have also remembered that his judgment was not the last word and that it was necessary that his judgment should be written in such a way that it would enable this Court to understand what the case was and to appreciate not only his point of view but the reasons therefor. All this is clearly stated in Sections 367 and 424, Criminal P.C. If the learned Judge had only taken the trouble of studying these sections, he would not have written a judgment of this description. We have emphasised this point more than once and it is very necessary that the Courts below should realise that they should write judgments which are intelligible and which afford this Court an opportunity of appreciating the reasons for the decisions embodied in the judgment of the Courts below. The learned Deputy Legal Remembrancer frankly stated that this judgment was not a proper judgment, but he argued, though somewhat faintly, that Section 537, Criminal P.C., would cure the error of the learned Judge; in support of this argument he referred us to the case in Tilak Chandra Sarkar v. Baisagomoff ('96) 23 Cal. 502.

7. In my opinion, Section 537 can have no application to a case of this description and the case relied upon by the learned Deputy Legal Remembrancer is not in point. In that case the judgment itself was not a bad judgment but it was delivered at a time when it should not have been delivered. In the present case, the judgment of the learned Additional Sessions Judge is no judgment at all. Section 587, Criminal P.C., provides that if there is any error in a judgment, that judgment should not be reversed unless there has been prejudice to the accused by reason of the error or unless the error has in fact caused a failure of justice. This is however not a case of an error in a judgment, but this is a case of there being no proper judgment at all. In such a case we have no option but to set aside the judgment and the conviction passed thereon.

8. I now turn to the second point. This point is also of substance and the contention urged on behalf of the petitioners must prevail. Ordinarily, the statement of a person who cannot be called as a witness is not evidence. Section 32, Evidence Act, provides certain exceptions to this general rule. Section 32(1) says that where a person is dead, the statement made by such person as to any of the circumstances of the transaction which resulted in his death is admissible in evidence in cases in which the cause of that person's death comes into question. It is clear from the words of the section that the statement of a deceased person will not come within this portion of the section unless the statement relates to the circumstances of the transaction which resulted in that person's death. Now, Mokimali was injured on 9th January. He was sent to hospital on that day and his statement was recorded on the same day. He was discharged from hospital on 30th January and we must presume in the absence of any other evidence that he was discharged because he had been so far cured as to render his detention in the hospital unnecessary. Six or seven days after his discharge, he died and the evidence given by the first witness examined on behalf of the prosecution is that on this day a doctor was called because Mokim was suffering from fever. There is no evidence to show that Mokim Ali died as a result of the injuries which were received by him. On the contrary, the evidence indicates that he died as a result of an attack of fever. In these circumstances, I cannot see under what provision of law a statement made by Mokim Ali could be admitted in evidence. I have noticed that an impression seems to prevail in some of the Courts below that as soon as a person is dead, his statement becomes admissible in evidence. It is very necessary to correct this impression. When a statement of a deceased person is admitted under Section 32(1), Evidence Act, it is necessary for the party seeking to put that statement in evidence to establish the prerequisites laid down in the section. For the reasons given above, I agree with my learned brother in the order which he has passed.


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