STATE Vs. PARSOTTAM BHIKHABHAI

JUDGEMENT

(1.) MR . Justice Chainani and Mr. Justice Palnitkar have referred the following question to this full bench: Whether the statement made by a deceased person as to the cause of his death, or as to any of the circumstances of the transaction, which resulted in his death, is inadmissible in evidence, if there is no record of the questions put to the deceased and the answers given by the deceased to each of those questions. The question came to be referred under the following circumstances. An appeal was preferred by an accused who was convicted under Section 302 of the Indian Penal Code on the charge of committing murder of one Gajri on July 23, 1956. That appeal came before Mr. Justice Chainani and Mr. Justice Palnitkar. The principal evidence in that case was the dying declaration made by Gajri and this declaration was recorded by the Taluka Magistrate, Navsari, on July 23, 1956. The declaration was a continuous statement and there was no record of the questions put by the learned Magistrate to the deceased. It was urged on behalf of the accused that the declaration was inadmissible and for that purpose reliance was placed on a decision of this Court reported in Shrinath Durgaprasad v. State (1956) 59 Bom. L.R. 221. Mr. Justice Chainani and Mr. Justice Palnitkar felt some difficulty in accepting that judgment, and hence they referred this question to a full bench.

(2.) NOW , the question that really arises is as to the proper interpretation of Section 32(1). Section 32 constitutes an exception to the general rule that hearsay evidence is not admissible and Section 32 refers to different statements which have been made relevant and therefore admissible although they are hearsay evidence. Section 32 is divided into eight sub -clauses and these sub -clauses deal with the nature of the statements referred to in this section. Sub -clause (1) makes a statement relevant which is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, and when we turn to the operative part of Section 32 it provides: Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: Therefore, it is clear that a statement, if it falls under any of the eight sub -clauses of Section 32, is relevant, whether the statement is written or verbal, and what is contended on behalf of the accused who is represented by Mr. Shastri, who has urged before us all the relevant considerations, is that the only statement made relevant is a statement which consists of the verba ipsissima of a person making a statement. It is urged that in order that the statement should be relevant the actual words used by the person making the statement should be proved. If the actual words are not proved, the statement is not relevant and, therefore, not admissible.

(3.) THEREFORE , in our opinion, apart from authority, it is not possible to put a construction upon Section 32 which in its very nature is a strained construction and which construction becomes even more difficult to put when one realises that Section 32(1) does not stand by itself but it is part of a section which contains other cases where statements may be made and proved in a Court of law.