GOURIDAS NAMASUDRA Vs. EMPEROR

JUDGEMENT

(1.) The appellants before us are three namasudras, Gouridas, Girish and Gurudas, the brother of Girish. They, have been convicted by the Sessions Judge of Tipperah, who, differing from both the Assessors, has found Gouridas and Gurudas guilty of the murder of one Saheb Ali, and Girish guilty of having caused simple hurt to the deceased. Girish has been sentenced to three months rigorous imprisonment under Section 323 of the Indian Penal Code, while the sentence on each of his companions is transportation for life under Section 302.

(2.) Two points of law have been raised, and these we will dispose of at once.

(3.) Saheb Ali was attacked and injured at Srirampore on the 28 May last. On the 29 he went to Brahmanberia and lodged a petition of complaint before the Magistrate, who examined him on oath, recorded his statement in compliance with the provisions of Section 200 of the Criminal Procedure Code, and sent him to hospital, where he died on the 31st. The statement recorded by the Magistrate has been treated as a "dying declaration," and it has been proved by the production of the magisterial record, the learned Sessions Judge holding that, under Section 91 of the Indian Evidence Act, no other evidence was admissible. In this connection it is contended (i) that the statement was a complaint and, therefore, not a "dying declaration," and (ii) that, if it was admissible as a "dying declaration," the Magistrate ought to have been examined to prove its contents.