EMPEROR Vs. MAHADEO DEWOO

JUDGEMENT

(1.) IN this case six persons are being tried for rioting and murder of Shankar Sakharam and Narayan in prosecution of their common object. Narayan's dying declaration was recorded by a Magistrate in which he mentioned one of the accused as his assailant. Several eye-witnesses who were present at the scene of offence have been examined for the prosecution and they have stated which of the accused were seen by them taking part in the rioting. At the identification parade Narayan recognised his assailant and said to the panchas in the presence of the police what he had done to him. Similarly at other identification parades held by the police, the eyewitnesses identified some of the accused and said what they had seen them doing. The learned Counsel for the prosecution tenders those panchanamas in evidence and wants to prove the statements made by Narayan and other witnesses at the identification parades. The learned Counsel for the accused objects to the statements being proved as they were made to the police in the course of investigation. It is contended that under the proviso to Section 63 (1) of the Bombay City Police Act, 1902, such statements can be used only by the accused with the permission of the Court for the purpose of, impeaching the credit of the witnesses who made them. Prosecution, however, wants to use those statements for corroborating the statements made by the witnesses in this Court.

(2.) AS regards Narayan's statement at the identification parade, it is obviously admissible as his dying declaration under Section 32 (1) of the Indian Evidence Act, 1872, since Section 63 (2) of the Bombay City Police Act, 1902, excludes such dying declaration from the prohibition contained in Sub-section (1 ). Hence Narayan's statement at the identification parade regarding the cause of his death is admissible although made in the presence of the police.

(3.) IT is further urged by Mr. Pardiwalla that if a panchanama containing such a statement is not admissible in evidence, the panch witness cannot make use of the panchanama even for the purpose of refreshing his memory. But Section 159 of the Indian Evidence Act says that when a witness is under examination he may refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory and that he may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. The section does not require that the writing which is used to refresh his memory should itself be admissible in evidence. Here although the panchanama of identification was written by a police-officer, it was immediately read over to the panch and admitted by him to be correct, Hence the panch can make use of that document to refresh his memory. In Queen-Empress v. Sitaram Vithal (1887) I. L. R. 11 Bom. 657 it was held that although a statement reduced to writing by a police-officer in the course of an investigation could not be used as evidence under 3.162 of the Criminal Procedure Code, yet the police-officer, by whom it was reduced to writing, might use it to refresh his memory under Section 159 of the Indian Evidence Act and might be cross-examined upon it by the party against whom the testimony aided by it was given.