Parsons, J.:— The dacoity is alleged to have taken place on the evening of the 12th August, and clothes and ornaments to the value of some Rs. 2,750 are said to have been stolen, of which a silver tolbandi and a few clothes only have been recovered. Nothing, however, was found in the possession of the appellant, who was the accused No. 1 in the Sessions Court, and he was convicted by the Sessions Judge solely because the latter saw no reason to distrust the dying declaration of Fakiria Shimpi and the deposition of witness No. 1. The Assessors were of opinion that he was not guilty. We think that the charge is not proved against him. The declaration of Fakiria Shimpi must be eliminated from the evidence. It was made on the 13th August, and Fakiria died on the 20th. The Assistant Surgeon, who made the post-mortem examination, has, not been examined as a witness. The Sessions Judge says as to this: “The Civil Surgeon had to be asked to give his opinion upon the Assistant Surgeons notes of he post-mortem, his handwriting being proved by the compounder, because the Assistant Surgeon had gone on leave: the proceeding appeared to be somewhat objectionable, but under the circumstances was unavoidable. The opinion of the expert was, however, in favour of the defence, and the charge against the accused reduces itself naturally to one of dacoity alone.” The Civil Surgeon says: “From those notes I find that the corpse had a wound in the right axilla. Also one of the ribs was fractured. From the report and the facts it contains I am certain that the cause of death was pneumonia. The pneumonia was aggravated by the injury, though not caused by it: the adhesions point to chronic lung disease, and I consider the man must have been ill before. From the notes I am of opinion that the wound was not such as would be likely, in the ordinary course of nature, to cause death.” No explanation is given as to how the opinion was formed that the pneumonia was aggravated by the injury, and there is nothing in the notes to support it. The cause of death is not mentioned in them. In the absence of evidence to prove that the death of Fakiria Shimpi was caused or accelerated by the wounds received at the dacoity, or that it was the transaction which resulted in his death, his declaration ought not to have been admitted in evidence.
There remains only the statement of the complainant. The delay in naming the accused as one of the dacoits is such as to render the evidence of little value The reason given for not telling the village officers, namely, that the complainant Was a stranger and the dacoits were of the same village as those officers, is not true because the accused was not an inhabitant of the same village as those officers. The further reason that he thought it better to mention all the names at one time is also untrue because the accused No. 3 was then and there in the custody of the village officers, and was named by the complainant Besides, if he would not tell the village officers, there was no reason why he should not have told Fakiria Pinjar, Fakiria Kurbav, Shamava and Gadigyavva, and he gives none. The accused is an inhabitant of the same village as the complainant and was known to him before, and the fact that he did not mention his name fit once throws great doubt upon his after identification, particularly when the witnesses Nos. 2 and 3, who were spectators ox victims of the dacoity and who also knew the accused No. 1 before, say that they did not see him at it. Very little weight seems to have been attached to the evidence at the time because we find that the house of the accused was not Searched till the 18th, and he Was not arrested till the 19th.
We reverse the conviction and sentence passed upon the appellant, acquit him of the offence charged, and direct; that he be set at liberty.
Conviction and sontened revetted.