Report No. 69
III. Section 32(1)-opening Paragraph-other Points
12.15. Section 32-Opening paragraph-"verbal".-
So far, we have dealt with the situations in which the opening paragraph of section 32 applies, or should apply. We shall now deal with certain other points arising out of the opening paragraph. The first point relates to the kind of statements made admissible by the section. The opening paragraph classifies them by using the terms "written" and "verbal". Strictly speaking, the contrast with "written" is more accurately indicated by the word "oral" rather than by the word "verbal".
In fact, the Act itself uses the word "oral" at various places,1 e.g. in section 59 (which allows all facts except the contents of documents to be proved by oral evidence), section 63(5) (which says that secondary evidence means and includes oral accounts of the contents of the documents), and section 92 (which provides that if the terms of any contract etc., are proved under section 91, no evidence of any "oral agreement" or "statement" shall be admitted).
1. Sections 59, 63(5), 92 etc.
12.16. However, it should be noted that the word "verbal", as used in this context, has received judicial interpretation. The Privy Council has, in a case1 which arose under section 32 of the Ceylon Evidence Ordinance (14 of 1895), which section was identical with section 32 of the Indian Act-held that where a woman with her throat half cut, answers questions put to her by signs and nods, such signs are "verbal" statements. The Privy Council observed that the case resembled that of a person who is dumb and is able to converse by means of finger alphabet. The Privy Council pointed out that the section used the word "verbal", and not the word "oral", observing that it was unnecessary to decide whether the nods of assent would have constituted an "oral" statement. In this position, the wording of the section need not be altered on this point.
1. A.P. Chandrasekhara v. King, AIR 1937 PC 24 (26).
12.17. Section 32-Opening paragraph-"Relevant Facts".-
Yet another point arises out of the opening paragraph of section 32. The point is common to all clauses, but, since it has arisen in connection with clause (4), we shall first refer to that clause. Clause (4) provides that the statement of a person not available as a witness may be admitted in evidence, if the statement gives the opinion of the person concerned as to the existence of any public right or customs or matter of public or general interest of the existence of which, if it existed, he would have been likely to be aware and when such statement was made before any controversy as lo such right, custom or matter has arisen.
12.18. In relation to this clause, a controversy exists as to the meaning of the expression "all relevant facts", which is used in the opening paragraph of section 32. The precise question is, whether the expression "relevant facts" includes facts in issue.
12.19. To this question, a negative answer was given in a Bombay case1. The point at issue was whether, by custom, a widow could adopt a son without the express authority of her husband. A statement by the widow to the effect that she could do so under a custom, was held to be inadmissible, the reason of the court being that the very fact in issue was the alleged custom, and the section applied only to statements of relevant facts.
1. Patel Vandravan v. Patel Manilal, 1891 ILR 15 Born 565 (579).
12.20. Position not satisfactory.-
It appears to us, with due respect, that this is not a satisfactory position, for several reasons. In the first place, such a view will lead to an anomaly, as the very function of a court is to decide questions about facts in issue; relevant facts are used merely as supplying the material for the decision of facts in issue. Secondly, many of the illustrations to the section-for example, illustrations (a), (i) and (k)-deal with facts in issue, and those illustrations suggest wider rather than a narrower construction on the point under discussion. Thirdly, it may be noted that the Bombay case referred to above has been doubted in a later Bombay case,1 where Chagla J., (as he then was) raised a query on the point. He pointed out that the Privy Council, in Biro v. Atma Ram, AIR 1937 PC 101, admitted a statement of fact in issue under section 32.
1. ladav Kumar v. Pushpa Bai, AIR 1944 Born 29 (30) (Chagla, J.).
12.21. In view of the consistent usage of the Act in specifically mentioning "facts in issue" and "relevant" facts, it is desirable that the language of section 32 should also be made clearer on this point. The more specific language of sections 7 to 9, 11(1), 17, 35, 36 etc., may be compared.
All these sections speak of facts in issue and relevant facts. An amendment of section 32(1) for this purpose will also secure harmony with the scheme of the Act, as contained in section.-the basic section of the Act-which provides that evidence can be given of facts in issue and of such other facts as are declared to be relevant. Section 5 would seem to indicate a dichotomy between facts in issue and relevant facts; and, in order to prevent a controversy from arising, it is desirable to widen the wording of section 32(1), opening paragraph so as to cover facts in issue as well as relevant facts. We recommend that the paragraph should be amended accordingly.
12.22. Competence as witness.-
Section 32(1) does not provide that the person whose declaration becomes relevant under this section, should be a person who would have been competent as a witness. In English law, the declarant (in the case of a dying declaration) must have been competent as a witness; thus, tender age or imbecility will exclude a dying declaration in England1. In India, however, it is doubtful whether this rule is applicable2. We do not propose any amendment on this point.
1. R. v. Pike.
2. Cunningham Law of Evidence, pp. 161-162, cited in Monir Evidence, 4th Edn., para. 220.
12.23. Summary of recommendations as to opening paragraph.-
As a result of the above discussion, it will be necessary to amend the opening paragraph of section 32, so as to incorporate the following points:
(i) addition of the case where the witness is kept out of way1-compare section 33; and
(ii) verbal change regarding that portion of the opening paragraph which deals with the case of a witness whose "attendance" cannot be obtained-compare the wording of section 33.
(iii) facts in issue should be added2.
1. Para. 12.13, supra.
2. Para. 12.20, supra.
12.24. Redraft of section 32, Opening paragraph.-
The following revised draft of the opening paragraph of section 32 is therefore recommended.
IV. Revised Section 32-opening Paragraph
32. 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.