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9. In The Empress v. Samiruddin - (1882) 8 Cal.

211, on Dec. 14, 1881, the Division Bench of Calcutta High Court held thus :

"The piece of evidence to which this observation relates is the dying statement of the deceased Baber Ali. This was recorded by the Deputy Magistrate as a `deposition;' but it does not appear that Baber Ali was examined in the presence of the accused Samiruddin, and unless he were so examined by the Deputy Magistrate exercising judicial jurisdiction the writing made by such Magistrate could not be admitted to prove the statement made by the deceased. This statement must have been proved in the ordinary way by a person who heard it made. If the Deputy Magistrate had been called to prove it, he might have refreshed his memory with the writing made by himself at the time when the statement was made."

512, C.Cr.P. The only way of proving the statement was therefore by the oral evidence of some witnesses who heard it made, the said witness being at liberty to refresh his memory by referring to the note made by him or read over by him at or about the time the statement was made. I would lay stress upon this because in many cases irregularities of this nature have led to a miscarriage of justice or to great delay in the trial of cases."

Emperor (4) The learned Judges have not stated their reasons for this position, nor have they explained on what sections of the Criminal Procedure Code and the Evidence Act it is based. In Gouridas Nomasudra v. Emperor (2), it is conceded that an oral statement of a deceased person as to the cause of his death, if made in the absence of the accused, may be proved by any one who heard it made, as well as by the person who recorded it. That is sufficient for the purpose of the case, as Exh.D has been proved by the Sub-Assistant Surgeon who heard the statement being made and signed it. With all the due deference, we are unable to follow the learned Judges who decided In the matter of the petition of Samiruddin (1) and King-Emperor v. Mathura Thakur (3), when they say that the only way of proving such a statement is by calling a person who heard it made and permitting him to refresh the memory from the writing under section 159 of the Evidence Act. Whether they are treated as written statements of deceased persons or as written records of verbal statements, section 32(1) allows dying declarations which have been reduced to writing to be admitted as relevant facts. They thus become substantive evidence of the circumstances leading to the deceased person's death when the cause of the death is in question. A statement taken in the absence of the accused from a witness for the prosecution is described as a `deposition' in section 512, Criminal Procedure Code, but sections 157 and 158, Evidence Act, show that, if it satisfies the conditions of section 32, it is nevertheless a `statement' and as such is relevant whether the absence of the witness is caused by death or by some other cause which makes him incapable of giving evidence in person."

In the case of Samiruddin, supra, the Calcutta High Court held that the statement must have been proved in the ordinary way by a person who heard it made. If for any reason the Magistrate is not available, any other person who heard it when made can also testify and they being at liberty to refresh memory by referring to the document as provided by Sections 159 and 160 of Evidence Act.