Suhrawardy and Mukerji, JJ.
1. The principal ground urged in this appeal is that the ejahar (Ex. 1), which was treated as a dying declaration of the deceased, was not legally proved in the case, and, therefore, was wrongly admitted in evidence. In support of this contention reliance has been placed upon the decisions in the cases of the Empress v. Samiruddin (1881) I. L. R. 8 Calc. 211. King-Emperor v. Mathura Thakur (1901) 6 C. W. N. 72. King-Emperor v. Daulat Kunjra (1912) 6 C. W. N. 921. and some other cases of this Court, and it was contended that the cases of Gouridas Namasudra v. Emperor (1908) I. L. R. 36 Calc. 659. and Emperor v. Balaram Das (1921) I. L. R. 49 Calc. 358. in so far as they purport to take a different view, were wrongly decided, or at any rate are distinguishable. We do not propose to decide this point, as in our opinion the appeal succeeds on one of the several other grounds urged, and there must be a re-trial of the case.
2. It appears that at the close of the prosecution case the learned Sessions Judge, on the 12th April 1924 examined the accused persons, and what took place on that occasion was noted by the learned Judge in the the Order-Sheet in these words:---' The statements of the accused were read out to each of them, and they were asked if they would add anything here They said that they would not, except Chanda Dhupi. What he stated here is recorded by the Court.' Thereafter, on the 15th April 1921, the learned Judge examined a Court witness, and further examined the accused, and made the following note in the Order-Sheet: 'After the conclusion of her examination (meaning that of the Court witness) the Court examined the accused again. They stated that they had nothing further to say, and declined to examine any witness in defence.'
3. It appears no record was made of the aforesaid examination under the provisions of Section 361 of the Criminal Procedure Code, except in the case of the examination of the accused Chanda Dhupi, made on the 12th April 1921. In our judgment in Emperor v. Nani Lal Mandal (1924) I. L. R. 52 Calc. 403. we have given our reasons for holding that such a record is obligatory, and the absence of it may seriously prejudice accused persons.
4. We must, therefore, allow the appeal, set aside the convictions of the appellants and the sentences passed on them and direct that they be re-tried in accordance with law. Pending such re-trial, the appellants will remain on the same bail as they are on at present. As the case will have to be tried again, we think it desirable that in that trial steps should be taken to prove the contents of the document Ex. 1 in the manner laid down in the case of Empress v. Samiruddin (1881) I. L. R. 8 Calc. 211. if it be not altogether impossible to do so.
5. Let a copy of the judgment of this Court in Emperor v. Nani Mandal (1924) I. L. R. 52 Calc. 403. be sent to the learned Sessions Judge for his information.