Report No. 69

II. Section 32(1), Opening Paragraph-various Situations

12.8. After this introductory discussion, we shall examine some salient points common to all clauses of section 32. The eight classes of hearsay,1 written or verbal, falling under this section, are relevant, when made by a person (a) who is dead, or (b) who cannot be found, or (c) who has become incapable of giving evidence, or (d) whose attendance cannot be procured without unreasonable delay or expense. These alternative situations may be considered:

(a) Death-Death must be strictly proved2.

(b) Statement by persons who cannot be found

1. See para. 12.6, supra.

2. Queen v. Gozalao, 12 WR Cr 80 (Cal).

12.9. As regards a statement made by a person who cannot be found, it must be shown that the person cannot be found after reasonable exertion has been made to find him1. Where all that is known is that the witness has failed to attend, it cannot be said that the witness cannot be found2. Where a person suddenly disappeared and the summons could not be personally served, and an enquiry was made in his native village, and it had been found impossible to serve him with the summons, it may be held that he cannot be found3.

(c) Incapacity of the person-Nature of

1. Queen v. Luckhy Narain, 24 WR Cr 18 Cal.

2. E. v. Nanhe Khan, 2 Cr 14 518 (All).

3. E. v. Rochia Mohato, 1880 ILR 7 Cal.

12.10. The third alternative situation relates to incapacity. The incapacity must be of a permanent character, and not of a temporary character-it was so held in an early Calcutta case1. But this case has been dissented from in In re Asgur Hossain2, where it has been held that the incapacity need not be of a permanent character, and something short of permanent incapacity might satisfy the words of the section. However, the fact that a person was ill and was confined to his house, does not make him incapable to give evidence within the meaning of this section. This view is supported by the wide wording of the section, and no change is recommended on this point.

(d) Expenses and delay in securing presence of witness

1. Pare lal (in re:), 4 CLR 504, cited in Woodroffe.

2. Asgur Hassann (in re:), 6 ILR 774.

12.11. Where the last alternative situatio.- expense and dela.- is relied upon, it ought to appear that the presence of the witness could not be obtained without an amount of delay or expense which the Court considers unreasonable. To consider a delay and expense as simply useless, is not enough, it must further be found that it is reasonable1. In a case in Madras2, it was held that the mere fact that a witness happens to live at Rangoon is not a sufficient ground.

1. (a) Queen v. Kukhan Santhal, 21 WR (Cr.) 56 (Cal). (b) Noshai Mistri v. E., ILR 5 Cal.

2. Kadappa v. Thirpathi, 86 IC (Mad).

12.12. Section 32-opening para-case of witness who is kept out of the way by the adverse party.-

In enumerating the persons whose statement becomes admissible under section 32, the opening paragraph of the section 32 mentions persons who are-

(i) dead; or

(ii) who cannot be found; or

(iii) incapable of giving evidence; or

(iv) whose attendance cannot be procured without an amount of delay or expense which appears to the court unreasonable.

12.13. Recommendation to include the case of a witness kept out of the way.-

The section, however, omits to include the case of a person who is kept out of the way by the adverse party. We may, in this connection, contrast section 33 (dealing with the relevancy of evidence given by a witness in a previous judicial proceeding); that section specifically includes such a case. There is no reason why such a statement should not be included under section 32 also. We, therefore, recommend that the opening paragraph of section 32 should be amended for the purpose, so as to include such cases.

12.14. Section 32 and the words "whose attendance cannot be secured"-Recommendation.-

There is one other difference in the wording of the two sections, which should also be noted. Section 32 speaks of a person "whose attendance cannot be procured without an amount of delay and expense, which, under the circumstances of the case, appears to the court unreasonable". Section 33 speaks of a person whose "presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable". There is no reason why the language of the two sections should differ on this point. We, therefore, recommend that section 32, opening para, should be brought into line with section 33, on this point also.