Report No. 185
Sections 32 and 33 deal with relevance of 'Statement by persons who cannot be called as witnesses'. Section 32 bears the heading 'Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Section 32 has eight clauses. The clauses of section 32 deal with relevancy of statements made (i) if it relates to cause of death; (2) or made in course of business, (3) or against the interest of maker (4) or gives opinion as to public right or custom, or matters of general interest (5) or relates to existence of relationship, (6) or is made in will or deed relating to family affairs, (7) or in document relating to transaction mentioned in section 13, clause (a) and (8) or is made by several persons and expresses feelings relevant to matters in question.
There are 14 illustrations below section 32.
In the 69th Report, in Chapter 12, the following recommendations were made:
(i) opening para to be revised (para 12.24)
(ii) clause (1) of section 3.- to be amended (see para 12.64)
(iii) clause (2) of section 3.- to be amended (para 12.103)
(iv) clause (3) of section 3.- to be amended (para 12.141)
(v) clause (4) of section 3.- No change is necessary (para 12.149)
(vi) clause (5) and (6) of section 3.- No change is necessary (para 12.167)
(vii) clause (7) of section 3.- to be amended (para 12.179)
(viii) clause (8) of section 3.- No change necessary (para 12.189)
All the sub clauses deal with exceptions to the hearsay rule.
Opening part of section 32:
It was pointed out in para 12.13 that section 32 and 33 refer to statements by various classes of persons and that while section 33 also refers to statements of a person 'who is kept out of the way by the adverse party' and that in section 32, this category appears to have been omitted by mistake. It was also pointed out in para 12.14, that in section 33 the words 'whose presence cannot be obtained without an amount of delay or expenses which, under the circumstances of the case, the court considers unreasonable' whereas in section 32 the words used are 'whose attendance cannot be procured without an amount of delay and expense, which, under the circumstances of the case, appears to the court unreasonable'. It was recommended that language of section 32 must be amended by adopting the language in section 33.
We agree with these suggestions.
The opening part of section 32 will have to be amended as follows:
"Statements, written or verbal, of facts in issue or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose presence cannot be procured without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable, or who is kept out of the way by the adverse party, are themselves relevant facts in the following cases:"
Clause (1) of section 32
Clause (1) of section 32 refers to the relevance of dying declarations. The principle is based on the theory that a dying man may not speak untruth. Mathew Arnold stated in Sohrab and Rustum":
"Truth sits upon the lips of a dying man"
Shakespeare also referred to it in King John (Act 5, scene 4)
"That I must die here, and live hence by truth?"
There is a vast amount of case law on various aspects of relevancy of dying declarations and it is not necessary to cover the entire ground.
In the 69th Report, it was pointed out that when clause (1) of section 32 makes relevant "the circumstances of the transaction which resulted in his death', questions have arisen whether motive spoken to by the deceased would also be relevant. Conflict between the views of the High Court has been referred to. That was the position in 1977.
But now, this question has been resolved by the Supreme Court in State of UP v. Ramesh Prasad Misra: AIR 1996 SC 2766 and it has been held that section 32(1) is to be construed in a wide manner and includes a statement by the deceased regarding motive behind the criminal act.
Courts have also held that dying declaration can be the sole basis for a conviction.
It has however been accepted that in India, that there is a tendency among persons dying to implicate all their enemies who may have had nothing to do with the offence. Sir James Stephen referred to this tendency (see History of Criminal Law in England, Vol. I, pp. 448-449) quoted by Sri Vepa P. Sarathi in his Commentary 'Law of Evidence', 5th Ed. 2002, p 81- 82.
The courts in India have, therefore, accepted that one must be very careful in relying on dying declarations. In State of Gujarat v. Khuman Singh Karsan Singh AIR 1994 SC 1641 the first dying declaration referred to one person initially but a second and third implicated others. This has cast doubts on these statements. Where it is in contradiction with evidence of other witnesses, it was not acted upon Jagga Singh v. State of Punjab AIR 1995 SC 135.
In the 69th Report (see para 12.52), after discussion of case law, it was observed that two questions arise:
(1) whether the circumstances of the transaction which resulted in his death would include ' cause of death of another person' also?
(2) whether the clause which say.- 'whether or not the person who made it was under expectation of death' should be modified by restricting the clause to statements made 'in expectation of death'?
On the first aspect, the 69th Report said that an Explanation can be added by making statements relating to death of others also admissible.
On the second aspect, the 69th Report accepted that clause (1) of section 32 be modified by dropping the words "whether or not the person who made it under expectation of death' and relied upon the English case R. v. Woodcock (1789) 1 Leach 500 that the maker of the statement must be 'on the point of dying'. The Report did not agree with the reasoning of the Select Committee (1871) (Report under II) that the relevance of the statement whether made in contemplation of death or not, was a matter more concerned with the weight of the statement rather than with its admissibility.
The 2nd para of clause (1) of section 32 was to be modified accordingly and treated as Explanation I.
So far as the first proposal is concerned, we find that in Ratan Gond v. State of Bihar AIR 1959 SC 18, it was held that the words 'his death' are clear and a statement by a dying person regarding another's death were not admissible. The recommendation runs contrary to this judgment and the Commission's only reasoning in para 12.53 was that the words 'transaction' and 'circumstances' have to be and has always been construed widely.
The Commission did not make reference to the above judgment nor to two earlier judgments in In re Peria Chelliah Nadar AIR 1942 Mad 450 nor Kappanaiah v. R AIR 1931 Mad. 233. Two English cases in R v. Mead (1824) 2 B&C 605 and R v. Hind (1860)8 Cox Crl. Cases 300 were explained as not conclusive. It was further stated (para 16.57) that if it is to be treated that a person about to die would normally speak truth, there is no reason why that logic should not apply to the statement relating to cause of death of others.
We may add that, apart from conflicting with a decision of the Supreme Court, the above recommendation runs counter to the principle that we are dealing with exception to hearsay and this should not be extended to cases of cause of 'death of others' and has to be confined to cause of death of the person making the declaration. In Phipson (15th Ed., 2000 para 35.62), after referring to the above English cases, reference is made to the observation of Pollock CB in one of them, namely,R v. Mead:
"Speaking for myself I must say that the reception of this kind of evidence is clearly an anomalous exception in the law of England, which I think ought not to be extended."
Phipson observes in same para:
"It is submitted that this view is one which should be followed and the admissibility of such evidence should not be extended to cases other than homicide, for instance causing death by reckless driving."
For the above reason we are of the view that the first recommendation that the statement as to cause of death of others should be made admissible by adding Explanation 2 is not acceptable to us.
So far as the second part of the recommendation i.e. dropping the words "whether the person who made them was or was not, at the time when they were made, under expectation of death", we find that this part of the recommendation again runs counter to the observations of the Privy Council in Pakala Narayana Swami v. Emperor AIR 1939 PC 47 to the following effect :
"The statement may be made before the deceased has any reason to anticipate being killed"
This view has been accepted by the Supreme Court in Tehal Singh v. State of Punjab AIR 1979 SC 1347 (NOC) where Chinnappa Reddy J said (at 1349-50). "We do not also see any force in the suggestion of Dr. Chitaley that the statement of Harmel Singh was not made in expectation of death and was, therefore, not entitled to weight. Apart from the fact that S.32 of the Evidence Act does not require that a statement should be made in expectation of death."
The case law was reviewed by a three Judge Bench in Sudhakar v. State of Maharashtra AIR 2000 SC 260.- 2000(6)SCC 671 and the same principle was reiterated. See also Kansraj v. State of Punjab 2000(5) SCC 207 = AIR 2000 SC 2324. Proximity has however been stressed in these Judgments. In fact section 162(2) Cr.P.C. in express terms excludes from its purview, statements made under section 32(1).
It is true that under English law, asstated by Lord Alverstone CJ in R v. Perry : 1909(2) KB 697, the requirement is that the person must have 'a settled hopeless expectation of death'. It is then the law that if condition was satisfied, it is immaterial that he lingered for several days or weeks or he subsequently entertained hope. Under English law, there should be no hope of recovery, however slight not a belief. It may not be of an instant or immediate death but must be of an imminent and impending death, as distinguished from one deferred in point of time.
Sarkar says (15th Ed., 1999, page 630) that the Indian law is different from English law and there is no need that the man should be in expectation of death. The express provision to section 32(1) has been there since 1872 and we see no good reason to change the law, particularly when the Privy Council and the Supreme Court have accepted it.
In the light of the above discussion, we disagree with the recommendations made in the 69th Report so far as clause (1) of section 32 is concerned and recommend that the said clause be left as it is.
Clause (2) of Section 32:
This clause deals with the relevancy of statements made in the course of business by persons who are dead or cannot be found etc. The clause is quite important as it also deals with the relevance of 'dying declarations'.
Clause(2) of Section 32 reads as follows:
"(2) Or is made in course of busines.- when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him".
Now there are differences between the English law and the Indian law, (as stated in clause (2) of section 32). Under English law (see Sarkar, Evidence, 15th Ed., 1999, 683), such statements and entries are relevant only if (i) they are made in discharge of a duty or (ii) were made contemporaneously, or (iii) were made by a person having personal knowledge or (iv) and do not relate to collateral matters regarding which there was no duty to record. The legislation did not bring the restrictions in English law into clause (2) of section 32 of the Indian law. Under our law, the only requirement is that the statement or entries must refer to relevant facts. (Sitaji v. Bijendra : AIR 1954 SC 601).
Section 34 of the Evidence Act also refers to 'Entries in books of account' but that deals with entries which are not made by dead persons etc. which specifically come under clause (2) of section 32. Section 34 which makes entries relevant says that mere entries alone are not sufficient to create liability. Under section 34, there are number of judgment.- see Jain hawala case, CBI v. V.C. Shukla 1998(3) SCC 410 and Manish Dixit v. State of Rajasthan: AIR 2001 SC 93.
So far as clause (2) of section 32 is concerned, it was suggested in Gopeswar Sen v. Bejoy Chand Mahatar (1928) ILR 55 Cal at p. 1175 that there would be a similar provision in clause (2) of section 32 that mere entries cannot be sufficient to cast liability but in the 69th Report, it was felt (see paras 12.81 to 12.83) it was not necessary to add any words in clause (2) of section 32.
But the Commission, however, recommended splitting up of clause (2) in clause (2) and (2A), the former dealing with the first part of clause (2) of section 32 which is general in nature and the latter, dealing with specific particular situations as follows.
The Commission in para 12.103 of the 69th Report suggested the following format for clauses (2) and (2A) of section 32:
"(2) When the statement was made by such a person in the ordinary course of business; and, in particular, and without prejudice to the generality of the foregoing provisions of this clause, when it consists of any entry or memorandum made by him in books kept in the ordinary course of business;
(2A) when the statement consists of an entry or memorandum made by such person in the discharge of professional duty or of an acknowledgment written or signed by such person of the receipt of money, goods, securities or property of any kind, or of a document used in commerce, written or signed by him or of the date of a letter or other document usually dated, written or signed by him".
The words 'books of account' and 'course of business' and 'regularly kept' have been explained by the Supreme Court in the havala case CBI v. V.C. Shukla 1998(3) SCC 410.
Before making the above proposals, the Commission in the 69th Report, referred to the relevant case law and to three possible interpretations of clause (2) of section 32:
(i) requirement of 'ordinary course of business' is confined to the opening part and not to latter part containing specially enumerated cases. Books kept in course of business are different from books kept in the discharge of professional duties.
(ii) whole clause is subject to the opening portio.- 'ordinary course of business' or whether the clause should apply to noncommercial activities also.
(iii) whole clause is subject to opening words and only statements made in the 'ordinary course of business' are admissible and the transaction must be a mercantile one.
Illustrations to section 32 support the interpretation (i), as also illustration (1) in section 21.
The Commission felt (see para 12.102) that the first interpretation had superior merit in bringing about clarity and avoiding artificiality. Accordingly, it was suggested (see para 12.103) that the first part of clause (2) of section 32, as it stands, should be confined to statements made 'in the ordinary course of business' and that a new clause should be introduced, namely, clause (2A) to deal with the enumerated type of statements in the second part of clause (2) of section 32, where the statements could be those made in the ordinary course of business or otherwise (as in the case of letter written by a husband to his wife of which Ramamurthi v. Subba Rao AIR 1937 Mad 19 was quoted as an example).
We are in agreement with the recommendation for splitting up section Clause (2) of 32 into clauses (2) and (2A) for purposes of clarity and for avoiding artificiality as follows:
"(2) or is made in course of business: When the statement was made by such a person in the ordinary course of business and, in particular, and without prejudice to the generality of the foregoing provisions of this clause, when it consists of any entry or memorandum made by him in books kept in the ordinary course of business.
(2A) or is made in discharge of professional duty etc: When the statement consists of an entry or memorandum made by such person in the discharge of professional duty or of an acknowledgement written or signed by such person in respect of the receipt of money, goods, securities or property of any kind, or of a document used in commerce, written or signed by him or of the date of a letter or other document usually dated, written or signed by him"
Clause (3) of Section 32:
The clause deals with statements against ones' interest made by persons who are dead, cannot be found etc.
Under the English law, the statements by deceased persons etc. are admissible if made only against pecuniary or proprietary interest and not otherwise. Clause (3) of Section 32 of our Act is wider and makes admissible statements against ones' liberty or exposing him to damages.
The Privy Council held in Dal Bahadur v. Bijai AIR 1930 PC 79 that the person must have known that the statement is against his interest. Same view was expressed in Ramrati v. Dwarika AIR 1967 SC 1134.
The statements may be verbal or written. They need not be contemporaneous with the facts in issue. They need not be ante litem motam as required under other clauses of section 32, viz. clause (4), (5), (6). Connected or collateral facts would also be relevant, under English law and the Indian law, though not against one's interest, but which are necessary to explain the context.
In Bhim Singh (dead) LRs and another v. Kansingh, AIR 1980 SC 727, statements against proprietary interest made several years after the transactions were held admissible under clause (3) of section 32 and section 21. The fact in issue was whether the transaction was benami. The statement must have been made consciously, with knowledge that it may be used against hisinterest:(T.S.John v. State of Kerala 1984 CrLJ 753 Kerala).
In the 69th Report, there is an elaborate discussion as to the relevance of boundary recitals which may contain statements against one's interest. Such recitals may be there in documents between some parties or parties from whom they claim or in a document by the maker of the statement executed in favour of a third party.
There is considerable controversy so far as relevance of boundary recitals in documents not between parties. We have already referred to this problem while discussing section 13 and we have differed from the recommendations in the 69th Report that boundary recitals in documents between persons not inter parties are not relevant. We have taken the view that they are relevant. Under clause (3) of section 32 question is whether such statements made by a dead persons (or persons of the category referred to in section 32) are relevant even if made in documents not inter partes.
In the 69th Report, it was finally recommended that such recitals should not be admissible and that, therefore, an Explanation as stated below is to be added below clause (3) of section 32.
"Explanation: Recitals of boundaries containing statements as to the nature or ownership of adjoining lands of third persons are not statements against pecuniary or proprietary interest within the meaning of this clause".
A reading of the 69th Report as well as Sarkar (15th Ed., 1999, p 701) shows that decisions are not uniform. There are a large number of decisions taking the view that such recitals are not admissible while an equally large number say they are admissibl.- provided the person making the statement was conscious that it can be used against him that it was statement of a relevant fact when it was made. (Soney v. Darbedeo AIR 1935 Pat 167 (FB); Roman Catholic & C v. State AIR 1976 Knt 75).
While dealing with section 13 and relevancy of statements as to boundaries in documents not inter partes, we have referred to the fact that the English law was no doubt different but there is no reason why such statements should not be relevant. We have given examples of various situations to show why the recommendations in the 69th Report are not acceptable. We do not want to repeat all those reasons. If statements as to boundary made by living persons are to be treated as relevant under section 13 as per our recommendation, a fortiori there is a stronger case to treat as relevant such statements by persons who are dead, or cannot be found etc.
We have recommended insertion of an Explanation in section 13 as Explanation II so far as boundary recitals are concerned. We recommend a like Explanation be added below clause (3) of section 32 as follows:
"Explanation: A recital as regards boundaries of immovable property in document containing such statements, as to the nature or ownership or possession of the land of the maker of the statement or of adjoining lands belonging to third persons, which are against the interests of the maker of the statement, are relevant and it is not necessary that the parties to the document must be the same as the parties to the proceedings or their privies."
Clause (4) of Section 32:
The clause deals with relevancy of statements by dead persons etc., being 'opinions as to public right or custom, or matters of general interest'. Statement must have been made before the dispute arose.
In the 69th Report, it was recommended (see para 12.149) that no amendment be made in clause (4) of section 32. It was pointed out that the amendment of the opening part as suggested now will take care of the view of the Bombay High Court which held that statements will be relevant only if they relate to facts in issue and not to relevant facts.- a view which was dissented by the Madras High Court. The amendment overrules the Bombay view. We have perused the reasons given and we agree with the view that no specific amendment is necessary in clause (4) of section 32.