BABBU Vs. STATE

JUDGEMENT

(1.) THE appellant Babbu alias Babu Ram has been convicted by the learned Additional Sessions. Judge of Farrukhabad under Ss. 307 and 309, I.P.C. He preferred an appeal to this Court. The appeal was heard by a learned single Judge on 26-10-1953. The learned single Judge has referred the following question for decision by this Bench : "Whether the statement Ex. P. 8 could be admitted in evidence as a confession in view of the decision of their Lordships of the Privy Council in - Nazir Ahmad v. King Emperor, AIR 1936 PC 253 (2) (A), after such a statement has been ruled out as inadmissible under S. 32, Evidence Act ?"

(2.) THE appellant was charged with having assaulted his wife with a gandasa and having caused her serious injuries. He was further charged of having inflicted injuries on himself in order to end his own life after he had assaulted his wife. Both the appellant and his wife were found lying, injured and almost in an unconscious state by some people and then report of the incident was made and investigation commenced. The prosecution were unable to produce any eye-witnesses of the actual assault. Reliance was placed by the prosecution on the extra-judicial confession of the appellant. The confession was attempted to be proved by the evidence of three witnesses, namely, Shanker Sen, Bharat and Kunwar Sen. The appellant and his wife were removed to the hospital for treatment after the investigation had begun. The doctor found their condition very low, He, therefore, sent a note to a Magistrate to make arrangements for the recording of the dying declaration of both. In pursuance of that request from the Medical Officer, the Tehsildar Magistrate, one Mr. Farid Uddin, went to the hospital to record the dying declaration of the appellant and his wife. The dying declaration of the appellant is to be found at page 10 of the paper-book and has been marked Ex. P. 8 in the case. That statement was recorded after oath having been administered to him. In this dying declaration the appellant, in effect, confessed to not only having caused injuries on himself but also to having caused injuries on his wife with a gandasa.

(3.) MR . Ghatak, appearing on behalf of the appellant, has contended that in view of the decision of their Lordships of the Privy Council in the case of - AIR 1936 PC 253(2) (A), the statement Ex. P. 8 was inadmissible, even though the statement was ostensibly recorded as a dying declaration. When the case was before the learned single Judge reliance was placed by the other made upon a reported decision of this Court in - Rex v. Moti, AIR 1953 All 792 (B), and it was contended that the statement of the appellant which was ostensibly recorded as a dying declaration would he admissible and could not be hit by the rule laid down by their Lordships of the Privy Council in - Nazir Ahmads case (A). The learned Government Advocate has reiterated the same contention before us when this matter has been heard.