DANNU SINGH Vs. EMPEROR

JUDGEMENT

(1.) In this case seven persons, Dannu Singh, Tulshi, Gajja, Keso Daryao Singh, Girdhari Singh and Dilsukh, appeal from the conviction under Section 395, Indian Indian Penal Code in connexion with a dacoity which occurred on the night of 7 October 1923 at the house of Umrao Singh at Natakpur in the Bareilly district. The police had been aware for a long time that a gang of dacoits under the leadership of a man named Dhani was carrying on a series of dacoities in the Bareiily district and were endeavouring to surprise and arrest them. They had received information that a dacoity was in contemplation at the house of Umrao on this particular night and the Circle Inspector Khan Bahadur Muhammad Sayid, with a number of police proceeded to the village secretly after dark and hid in a chaupal and other places adjacent to Umrao Singh's house. About 11 p.m. fifteen or sixteen dacoits came to the house, broke in, lit fires of straw at various places and commenced to loot the house. One of them had looked into the chaupal but failed to see the constables who were hiding under the wall and reported it empty. Shortly after the dacoits broke in, one of the constables coughed and revealed their presence. A gun was immediately fired by one of the dacoits. The Circle Inspector and the police with him came out and returned the fire. One constable was severely wounded in the thigh by a shot from a gun. Two of the dacoits were shot dead and two others were wounded so seriously that they died shortly afterwards. The other dacoits all escaped. A pistol and other articles belonging to the dacoits were found to have been left behind and on one of the dacoits who was shot a number of lead pellets were found. The two dacoits who were killed were afterwards found to be Brij Lal Nai and Nanhe Brahman. The two wounded men were Tilko and Dhimmi, the latter of whom was nephew of Dhani, the suspected leader of the gang. Both the two wounded men made statements to the police giving the names of a number of their associates, and in this way a clue was obtained. The accused were searched for and arrested on different dates. Dhimmi also made a dying statement in hospital in presence of a Magistrate. Dannu Singh was arrested on the morning after the dacoity under circumstances to be mentioned hereafter.

(2.) The prosecution sought to tender in evidence the dying statements made by Tilko and Dhimmi. The learned Sessions Judge rejected their statements to the police on the double ground that they were barred by Secs.25 and 26 of the Evidence Act as being irrelevant under the provisions of Section 32 of the Evidence Act. He has, however, admitted in evidence the statement made by Dhimmi to a Magistrate and has attached so much weight to it that he treats it as conclusive against the persons whom Dhimmi named. In this the learned Judge was in error. If Dhimmi's statement to the police was barred by Section 32 his statement to a Magistrate was equally barred by the same section. Dhimmi was not a witness at any stage of the case and he was not examined in presence of the accused nor subjected to cross-examination. There is therefore no provision of law except Section 32 of the Evidence Act under which his statement could be admitted. The learned Judge aaya that this section cannot apply because in the first place the statement does not relate to the causa of Dhimmi's death, and in the second place Dhimmi's death does not come into question in this case. The first of these reasons is hardly correct. Section 32 allows proof of a statement made by a person as "to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death."

(3.) His statements therefore as to the circumstances of the dacoity is in this case a statement as to the circumstances of the transaction which resulted in his death. The second reason is, however, a valid one. Dhimmi's death is not an issue in this case and is only relevant as one of the incidents of the dacoity. The question to be decided in this case is not whether Dhimmi participated in the dacoity but whether the accused who were on their trial took part in it. Dhimmi's statement was, therefore, inadmissible, and the case must be decided without reference to it. It is only in the case of the appellant Dilsukh that this point is material.