ABDUL GANI BANDUKCHI Vs. EMPEROR

JUDGEMENT

(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 Secs.326, 326/114, 323, 147 and 148, Indian 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.