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.) As regards the statements of other witnesses, the cases decided under Section 162 of the Criminal Procedure Code after it was amended in 1923 have no application since this case is governed by Section 63 of the Bombay City Police Act, 1902, which is still in the same form as Section 162 of the Criminal Procedure Code which was amended in 1923. Section 63(2) of the Bombay City Police Act, 1902, says: No statement made by any person to a Police officer in the course of an investigation under this Act shall, if taken down in writing, be signed by the person making it nor shall such writing be used as evidence.