Report No. 69
V. Section 32(1)
12.25. Section 32(1).-
Having disposed of the opening paragraph of section 32, we are now in a position to consider the various clauses of the section.
12.26. Under section 32(1), statements made by a person as to the cause of his death, or as to the circumstances of the transaction which resulted in his death, are relevant, where the cause of the person's death comes into question. This is the first exception to the rule against hearsay created by the section. Where a legal system, in its law of evidence, recognises the rule against hearsay, any exception to that rule must be based on some rationale.
Juristically, the justification in a legal system for admitting such statements is the assumption that a dying man does not die with a falsehood on his lips. Shakespeare had occasion to allude to this aspect. In King john1, when the wounded Melun finds himself disbelieved while announcing the intended treachery of the Dauplin Lewis, he exclaims:-
"Have I not hideous death within my view, retaining but a quantity of life, which bleeds away, even as a form of wax, Resolveth from his figure, against the fire? What in the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false, since it is true, That I must die here, and live hence by truth?"
1. King John, Act 5, Scene 4.
12.28. We shall revert to this aspect later.1
It should be stated, however, that a person may lose his mental faculty when death is approaching. Thus, in King John2 Prince Henry is made to say:
"Death's siege is now against the mind, which he picks and wounds.
With many legions of strange fantasies:
Which, in their throng and press to the last hold.
1. See "Expectation of death", infra.
2. King John, Act 5, Scene 7.
12.29. It is, apparently, for this reason that the statements are made relevant only for certain purposes. We now proceed to consider the clause in detail.
12.30. to 12.33. Conditions in England.-
In England, the conditions on which dying declarations are admitted in evidence1 are-(i) the death of the declarant, (ii) that the trial should be for his murder or manslaughter, (iii) that his statement should relate to the cause of his death, (iv) that he should have been under a settled hopeless expectation of death, and (v) that he could have been a competent witness.
1. Cross on Evidence.
12.34. Cases in which statements under sub-section (1) are admissible.-
It has been pointed out with1 reference to the second condition required in England that the first clause of section 32 is widely different from the English law upon the subject of."dying declaration", according to which, this description of evidence is not admissible in a civil case; and even in criminal cases, it is admissible only in the single instance of homicide, that is, murder or manslaughter2, where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declaration.
1. See Shivabhai v. R., 1926 ILR 50 Boni 683.
2. There is no English authority as to causing death by reckless driving.
12.35. In India, however, the declaration is admissible even where the case is not one of homicide.1 Moreover, under the Indian Act, the statement is relevant whatever may be the nature of the proceeding in which the cause of the death of the person who made the statement comes into question. Illustration (a) to section 32(1) gives an example of a civil, as well as of a criminal case, and, as an example of the latter, it mentions a charge of rape. Even under the previous law, as contained in section 371 of Act 25 of 1861 (The Code of Criminal Procedure), and section 20, Act 2 of 1855, it was held that2 the rule of English law restricting the admission of this evidence to cases of homicide had no application in India; and that the dying declaration of a deceased person was admissible in evidence on 2 charge of rape. We do not suggest any change in this regard.
1. R. v. Bissorunjun, (1866) 6 WR Cr 75 (1866), followed in Lain v. R., (1927) 7 ILR 6 Pat 747.
2. R. v. Bissorunjun, (1866) 6 WR Cr 75 (1866).
12.36. Circumstances of the transaction.-
The statement under clause (2) may relate not only to the cause of death, but also to the circumstances of the transaction which resulted in death. The words "circumstances of the transaction" are wide, and have been considered by the courts on a number of occasions. This was decided in Pakala Narayana swami v. Emperor, (1939) 1 All ER 369 (PC)
12.37. Statements as to motive.-
That the words "circumstances of the transaction" are not very precise, is illustrated by several controversies that have arisen. Thus, there is some controversy as to how far a statement as to the motive of the person who caused the death can be given in evidence under section 32(1), which allows evidence of a statement as to the "cause of death" or "circumstances of the transaction which resulted in death". One view on the subject is that such statements are admissible; this view has been taken by the High Court of Patna1 and by the erstwhile courts of Judicial Commissioners of Nagpur and Himachal Pradesh.2 In the Patna case,3 it was observed.-
"What he has said regarding motive is at two places: firstly in his first information report and secondly in the dying declaration. In the first information report (Ex. 4/1) he says-
"Somra Bhuian is a wizard and cultivator. Nagwa and Sukna are his comrades. They did not want that I should act as a wizard there This was the cause of the dispute: and in the dying declaration (Ex. 3) he says, "They assaulted me on account of enmity caused by my acting as a wizard." I do not see how any reasoning can make these statements to be anything other than statements as to the circumstances of thE transaction which ended in Kudrat's death.".
1. Emperor v. Somra, AIR 1938 Pat 52.
2. (a) Chunilal v. R., AIR 1924 Nag 115(2); (b) Findal v. State, AIR 1954 HP 11.
3. AIR 1938 Pat 52 (Rowland and Varma, JJ.).
12.38. and 12.39. The High Court of Madras has taken a different view.1 The facts were thus stated:
"The appellant who is the Karnam of the village of Gangachollapentha was charged before the learned Sessions Judge of Visagapatam together with three other persons for murdering one Thalada Ramaswami on the night of 2nd August last. The murder must have taken place en the main road between Gajapatinagaram and Mentada very near to Mentada. There is ample evidence on the record to show that the appellant and the deceased were on terms of friendship. That has been proved by the village Munsif and there are circumstances in this case which strongly bear that out. But the learned Sessions Judge has relied on certain evidence in this case as proving motive on the part of the appellant to murder the deceased.
That motive is derived from statements made by the deceased to his wife and to his wife's sister to the effect that in relation to a law suit in which the deceased's wife's sister, one Pydithalli was concerned. the appellant had accepted a bribe from the plaintiff one Narayanamma in the suit against Pydithalli. The motive is thus entirely derived from statements made by the deceased. These statements are wholly inadmissible. There is nothing in section 32. Evidence Act, which makes them admissible. They are not statements made by the deceased as to the cause of his death or to circumstances of the transaction which resulted in his death.
The Judicial Committee in (1939) 1 M.L.J. 7562 has considered the provisions of section 32(1). Evidence Act, in relation to statements of deceased persons who have been murdered. Lord Atkin at p. 763, (1939) 1 M.L.J. points out that the circumstances must be circumstances of the transaction, general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of death will not be admissible. In this appeal, the deceased's statements provide nothing more than grounds for supposing that the deceased suspected the accused of having betrayed his wife's sister in a civil case. They in no way are to be associated with the actual murder. Evidence of these statements should have been excluded."
1. Beggam Appaianarassayya (in re:), AIR 1941 Mad 101 (Burn & Mockett, JJ.).
2. Pakala Narayanaswami v. Emperor, AIR 1939 PC 47.
12.40. In the second Madras case,1 the statement that was sought to be tendered in evidence was that the accused was on intimate terms with the deceased's sister and the deceased wanted to arrange the sister's marriage to some other person. This was held to be inadmissible.
1. Public Prosecutor v. Munigan, AIR 1941 Mad 359 (360).
12.41. Whether amendment needed.-
We do not propose an amendment on this point, leaving it to be dealt with by the case law.
12.42. to 12.44. Section 32(1) How for Statements can be used in respect of death of other persons.-Another controversy, traceable to the words "circumstances of the transaction", may be noted. The precise question is whether a dying declaration made by A can be used for the proof of facts relating to the death of B. The controversy has assumed practical importance, and an illustration may be drawn from the facts of a case which was decided by the Rangoon High Court.1 Simplying the facts, we may state the main circumstances in the case as follows.
1. Nga Hla Din v. Emperor, AIR 1936 Rang 187 (DB).
12.45. A, a husband, and B, his wife, were both murdered at the same time, and it was said that accused X murdered the husband and accused Y murdered the wife. A dying declaration made by the wife was put in evidence against the accused, who were charged with being concerned in the murder of both the persons. The objection taken on behalf of the accused was that the dying declaration which was to the effect that accused X murdered the husband A, and accused Y murdered the wife B, was admissible only against the accused Y, who actually attacked the wife, as it can only be admissible in a case where the cause of the wife's death is in question.
This argument was rejected by the court, holding that as both the accused were charged with being concerned in the murder of both the persons, the fact (if it be true) that accused X attacked the husband, A, was part of the transaction which resulted in the death of wife B. The court observed-"it could naturally be said, for example, that had the husband not been attacked, he would have gone to his wife's assistance". Apart from this, and even if the accused had not been charged under section 34, Penal Code (acts done in furtherance of a common intention), the Court thought that the evidence would have been admissible against both.
The Court distinguished a number of cases cited on behalf of the accused, the first being a case where in a faction fight two men were tried at the same trial for murdering two men of the opposite side, there being no other connection between the two. The second case cited was one in which a police informer was killed by the police in the course of a dacoity, and the informer made a statement incriminating certain persons as his companions. It was held that the cause of the death of the informer was only indirectly in question between the two and that his dying declaration was not admissible against the other dacoits so as to convict them.
12.46. Kernan and Brandt JJ., observed: "As to its not being admissible except as against the person who actually caused the deponent's death, we are of opinion that this is not so in the case before us. The wording of section 32 of the Indian Evidence Act is comprehensive Here one of the questions was whether the accused, other than P, could be convicted of having been concerned in committing a dacoity in the committing of which murder was caused, and we have no doubt that statement as to what was done by those concerned in the dacoity in which the murder was caused was relevant against those concerned in the dacoity".
12.47. This wide view of the section is shared by the Patna High Court also.1
12.48. 'The Lahore High Court2 has refused to admit a dying declaration of a person in evidence against members of his own party, in cross-cases for the death of persons of either party, even though the question was which party was the aggressor and who acted in self-defence. This case can, however, be distinguished on the ground that the two cases were tried separately and, therefore, the "cause of that person's death" did not come into question within the meaning of section 32(1). That is to say, a declaration made by A cannot be used in a case in which the issue is not regarding the declarant A's death, but regarding the death of B, a member of the opposite party. To the same effect is an earlier decision of the Allahabad High Court3.
1. State v. Ramprnsad, AIR 1953 Pat 354.
2. Saudagar Singh v. Emperor, AIR 1944 Lah 377, (Din Mohammad and Sale, II.).
3. Dhanu Singh v. Emperor, AIR 1925 All 227.
12.49. Punjab case.-
An earlier Punjab case,1 holding that a dying declaration is admissible only where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declaration, decided that the statement of the deceased person, to the effect that another person who had died was stabbed by the accused, is inadmissible under section 32(1). If the death of the declarant is not in issue, the declaration cannot be admitted.
1. Fakir v. Empress, 17 Punj Rep 1901 discussed, in Woodroffe Evidence, (1957) Vol. I, p. 461.
12.50. Allahabad case.-
The controversy, however, becomes acute in a later case of the Allahabad High Court1. In that case it was held that the statement of one dead person is not a relevant fact with respect to the question about the death of another. This view has been dissented from by the erstwhile Travancore-Cochin High Court,2 on the ground that this would limit the word of the section ("transaction") in an unjustified way. It may be noted that in the Allahabad case already cited3, Kaghbur Dayal J., rejected the dying declaration of one brother, Girwar Singh, with respect to the attack on Megh Singh, his brother, though the transaction in which both the persons were killed, was, one, as is evident from the following extracts of the dying declaration:
"I was sleeping in my field Megh Singh went and slept in the field (to keep watch over) Bajra creeps. K., R. and B, came and pressed down my younger brother, Megh Singh. When he cried out, I started the aforesaid four persons surrounded me and attacked me thereafter I got unconscious they murdered my younger brother, Megh Singh."
1 Kunwar Pal Singh v. Emperor, AIR 1948 All 122.
2. Lukka v. Travancore-Cochin State, AIR 1955 Tray-Co 104.
3. Kanwar Pal Singh's case, AIR 1948 All 170, supra.
12.51. The case related to the murder of both the brothers. The Court observed that section 32 makes a statement of a person relevant only when the statement is made as to the cause of his death or as to any of the circumstances of the transaction etc., and that "it follows that the statement of one dead person is not a relevant fact with respect to the question about the death of another person".
12.52. Questions to be considered.-
In view of the above state of the case-law, two questions arise-first, what is the true position and secondly, does the section require any clarification to embody the true position.
12.53. As to the first question, it is suggested that the language of the section is comprehensive enough to justify a wider interpretation. It is true that the proceeding must be one in which the death of the declarant is a matter in issue. But, once this condition is satisfied, the statement is admissible not only for one purpose. (cause of his death), but also for another and wider purpose, namely, proof of circumstances of the transaction which resulted in his death.
It is well-known that the word "transaction" has always been interpreted widely, not only in general legal phraseology, but also in the parallel language of section 235 of the Criminal Procedure Code, 1898 (section 220 of the Code of 1973). The word "circumstances" has the effect of widening, and not narrowing, the scope of the section. Therefore, undue emphasis should not be laid on the words "his death", in connection with the transaction. As was pointed out in a Lahore case1 the word "transaction" does not mean merely the fact of death, but all the circumstances connected with it.
1. Emperor v. Faiz, AIR 1916 Lah 106.
12.54. English cases.-
The English cases that are cited in this connection did not actually lay down a narrower view. In one of the cases1, a person was accused of penjury, and what was sought to be given in evidence was a dying declaration by a person who was shot by the accused after conviction. The declaration gave an account of the shooting, and then proceeded to state certain facts relevant to the charge of perjury. This was sought to be given in evidence, in opposition to the order for new trial obtained by the Attorney General.
The court held it to be inadmissible, because evidence of this declaration is admissible only where the death of the deceased is subject of the charge, and the circumstances of the death are the subject of the dying declaration. This case does not necessarily mean that the dying declaration can be used only in so far as it deals with the central fact of the death of the declarant. It only means that the dying declaration is admissible only in a trial for murder or manslaughter-where death is the subject of the charge.
1. King v. Mead, (1824) 2 BC 605.
12.55. In another English case,1 A was charged for procuring the miscarriage of a woman B. A dying declaration by the woman B as to the circumstances of the case was held to be inadmissible. In this case, also, the rule laid down in simple, namely, that where the charge does not involve the homicide of the declarant, the dying declaration is not admissible.
1. R. v. Hind, (1860) 8 Cox Cr Cas 300.
12.56. Logical approach.-
Apart from this aspect, namely, that the English case law is not conclusive, the matter could be approached from the point of view of logic also.
12.57. Now, logically speaking, there is no reason why the section should be confined in the manner suggested by the narrower view. Sense of impending death and the necessities of the case, which are the principal reasons for admitting dying declarations, apply as much to the death of the declarant as to the death of any other person.
Though it would appear that the language of the section is even now capable of a wider construction yet, in order to resolve the controversy, it is desirable to make the necessary clarification on the above point. This could be achieved by adding a suitable Explanation. We recommend that the section should be so amended.
12.59. Expectation of death.-
Under the Act, the statement is admissible whether or not the person who made it was under expectation of death1. This is expressly provided in the clause.
1. (a) R. v. Premananda, 1925 ILR 52 Cal 9871; (b) R. v. Degumber, (1873) 19 WR Cr (Cal).
12.60. Previous law as to expectation of death.-
It may be noted that under the law which- was in force prior to the Evidence Act1 it was held that before a lying declaration could be received in evidence, it must be distinctly found that he declarant knew, or believed, at the time he made the declaration, that he was lying, or was likely to die.2 This requirement is not found in the section.
1. Section 371, Act 25 of 1861, and section 29, Act 2 of 1855.
2. (a) Tenco (in re:), (1871) 15 WR Cr 11 (Cal).
(b) R. v. Bissorunjun, (1868) 6 WR Cr 75 (76) (Cal).
(c) R. v. Svumber, (1868) 9 WR Cr 2 (Cal).
12.61 to 12.63. Reasons given by Select Committee.-
While recording1 that the various restrictions imposed by the English law, inter alia. On dying declarations had not been adopted, the Select Committee on the Indian Evidence Bill gave the reason that these restrictions should rather go to the weight of the evidence in question than to its admissibility. As to English law, we may refer to the case of R. v. Woodcock, (1789) 1 Leach 500. A man was charged with the murder of his wife, and her statement concerning the cause of her injuries, given on oath to a magistrate, was received in evidence against the accused. The deceased said nothing of her impending death, but the court was satisfied that she must have known that she was on the point of dying. Eyre, C.B., said :
"The principle on which this species of evidence is admitted is,2 that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice".
1. Gazette of India, Extraordinary, 1st July, 1871, Part I, p. 253, Report, Under II, Relevancy of Facts.
2. Emphasis supplied.
12.64. Redraft.- As a result of the above discussion, it will be necessary to revise clause (1) as follows.