Law: Criminal Procedure Code (V of 1898)

Section: 297,298

(a) Criminal Procedure Code (V of 1898), Ss. 297 & 298¬Charge to Jury Dying declaration Judge's failure to administer caution regarding evidentiary value of Serious omission vitiating trial Evidence Act (I of 1872), S. 32. Where dying declaration made by the deceased was the only evidence with regard to the actual assault on the deceased and the Sessions Judge had nowhere administered to the jury a caution with regard to the evidentiary value of the dying declaration: Held, the Sessions Judge should have told the jury that although there is no legal bar to the Jury basing the con¬viction of the accused on the dying declaration but prudence requires that there should be corroboration of such dying declaration inasmuch as it is not made on oath and not subjected to cross examination. The failure of the Judge to direct the Jury on the evidentiary value of the dying declaration in the case was a serious omission which vitiated the trial. (b) Criminal Procedure Code (V of 1898) Ss. 297 & 298¬Charge to Jury Judge explaining law regarding application of particular section but failing to do so with reference to facts of case Charge to jury defective Penal Code (XLV of 1860), S. 34. Where the Sessions Judge explained the law to the jury with regard to the application of section 34 of the Penal Code, 1860, but in doing so, he failed to direct the jury as to what bearing the law had with reference to the facts of the particular case before them: Held, that the explanation of law in the abstract could not have been of any assistance to the Jury to appreciate the facts of the case with reference to the law which would be applicable and the accused were, therefore, prejudiced in their trial by the charge that was delivered to the jury by the Judge. THIS JUDGMENT DELIVERED BY: MURSHHD, J. The appellants were tried by Mr. G. R. Chowdhury, Sessions Judge, Khulna, with a jury on a charge under sections 302/34 of the Pakistan Penal Code. 2. The prosecution case, in substance, is as follows : On Monday, the 26th Aswin, 1365 B. S., corresponding to 13th October, 1958, one Sundarali Gayen was returning from a hat fn a place called Jhowdanga along with one Babarali Gazi. They…

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