BABBU Vs. STATE

JUDGEMENT

(1.) THE appellant Babbu alias Babu Ram has been convicted by the learned Additional Sessions judge of Farrukhabad under Sections 307 and 309, I. P. C. Be 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 Section 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.) IT was contended on behalf of the appellant before the trial Court that the recording of the appellant's statement by the Magistrate amounted really to the recording of a confession of the accused and since the Magistrate did not follow the procedure prescribed for the recording of confession, it was Inadmissible in evidence. The learned trial Judge did not appear to have given effect to that contention on behalf of the appellant and he held that though the statement of the accused recorded as a dying declaration was not admissible in evidence under Section 32, evidence Act, yet it was admissible as a confession.