TAFIZ PRAMANIK Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by ten persons who have been convicted under Secs.147 and 304 read with Section 149, I.P.C. and sentenced to one year's rigorous imprisonment and six years rigorous imprisonment respectively, the sentences being directed to run concurrently. The appellants Nos. 2, 3, 4, 5 and 9 have also been convicted under Section 323, I.P.C. and sentenced to six months rigorous imprisonment.

(2.) The case for the prosecution was that, at about 11 p.m. on the night of 19th. April last one Mayan Khan, who died subsequently as the result of certain injuries received, hearing a noise in his cowshed, went outside, that lie was thereupon seized by a number of people who dragged him along and trampled upon him and beat him severely. His brother Ayen Khan who went to his aid is also alleged to have been beaten. Several of Mayan's ribs were broken and he died on the following day. At about midnight he had been brought to the house of one Jayan Pramanik. Information of the occurrence was lodged at the thana about a mile distant at 5 a. m. next morning. In the course of the investigation which followed a dying declaration was made by Mayan to the Sub-Inspector of Police. The Sub-Inspector was examined in the committing Court to prove this, but he died before the Sessions trial. The prosecution sought to put in the deposition of: the Sub-Inspector under Section 33, Evidence Act. The learned Sessions Judge held that it could not be admitted in evidence on the ground that no specific opportunity had been given to cross-examine the witness. While, however, disallowing the prayer to put in the deposition the learned Judge directed that portions of the statement itself as recorded by the Sub-Inspector, in which the names of Mayan Khan's assailants are mentioned, might go in on the ground that some of the witnesses had deposed to those statements as having been made by Mayan Khan in their presence to the Sub-Inspector. These facts are referred to because one of the main points in the appeal is connected with this dying declaration.

(3.) The accused all pleaded not guilty to the charges but do not appear to have set up any very definite defence. Some of them pleaded enmity and the accused Rahimuddi pleaded an alibi.