SHIRINATH DURGAPRASAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) (AFTER stating the prosecution case his Lordship proceeded:) Mr. Jethmalani, the learned Advocate who appears for the appellants, has contended before us that the learned Judge committed an illegality by admitting inadmissible evidence, namely, the statement Exht. H. alleged to have been made by Sushilabai, and that this would entitle us to go behind the verdict. Mr. Jethmalani has contended that as the Police Sub-Inspector Mr. Baikrishna Vithal Shinde did not keep a record of the questions put by him to Sushilabai and of the answers given by Sushilabai to those questions, there is no certainty that what purports to be her dying declaration Exht. H was truly and fully a statement of Sushilabai and that therefore the statement Exh. H is not admissible under section 32 of the Indian Evidence Act as a dying declaration of Sushilabai. According to Mr. Jethmalani there was a grave procedural defect in the trial as the learned Judge admitted inadmissible evidence on the record, namely the abovementioned statement of Sushilabai Exh. H as a dying declaration.

(2.) WE see considerable force in this contention of Mr. Jethmalani. Exht. H, the statement of Sushilabai alleged to have been made by her before the Police Sub-Inspector Mr. B. V. Shinde in the hospital, reads as follows :

(3.) IN his evidence the Sub-Inspector has explained as to how he recorded this statement of Sushilabai, Ho was questioning. Sushilabai in Hindi and Sushilabai was replying to, those questions in Hindi. She was in a position to understand the questions which were put to her and she was giving rational answers to those questions. The Sub-Inspector has deposed that he is "quite familiar" with the Hindi language and he translated Sushilabai's replies in English. After recording Sushilabai's statement in the manner stated above the Sub-Inspector interpreted in Hindi the English record of that statement to Sushilabai. She admitted the said Hindi interpretation to be a correct interpretation of her statement. Thereafter her thumb impression was taken at the foot of that statement. This was how the statement Exht. H which "purports to be a statement of Sushilabai was recorded, and the question is whether it is admissible under Section 32 of the Indian Evidence Act as a dying declaration of Sushilabai.