Bombay High Court
State Of Maharashtra vs Kallappa Devu Girmal And Anr. on 7 September, 1987
Equivalent citations: 1988(1)BOMCR234
JUDGMENT S.M. Daud, J.
1. This is an appeal of the State taking exception to the acquittal of a man and wife who were charged for the alleged commission of an offence punishable under section 302 read with section 34 of the I.P.C.
2. The prosecution case is that deceased Parisha Babu Girmal and accused No. 1 Kallapa Devu Girmal are first cousins being agriculturists and residents of village Abdul-Lat, Taluka Shirol, District: Kolhapur. Relations between the cousins were seriously strained, there having taken place a number of incidents and differences which led to the institution of case and counter-cases in civil as also Criminal Courts. To make matter worse, the lands they owned or at least some of them are so situated as to occasion further disputes. Accused Nos. 1 and 2 have a son by the name of Kumar.
3. On 15th April, 1979 Parisha on the one hand and the accused along with their son Kumar on the other, were working in their respective lands. At about 11.00 a.m. Parisha's work being over, he started on the way back to his house in the Gauthan, upon a cycle to the back carrier of which was strung a bundle of grass. Just then came the accused together with their son Kumar. All of them were armed, accused No. 1 carrying an axe, accused No. 2 a sickle or scythe and Kumar a stick. The deceased was given a severe beating and he sustained many injuries. This incident was witnessed by P.W. 7 Appu and P.W. 8 Annappa and Bhupal Chougule-the last named person having expired very soon after 15-4-1979. The two witnesses Appu and Annappa implored the accused and Kumar to be merciful unto the deceased, but to no avail. Eventually, the beating came to an end when Parisha fell down. A taxi was fetched and Parisha was taken to the Zilla Parishad dispensary at Kurundwad. The Doctor there gave first aid and passed on Parisha to the Civil Hospital at Sangli. As soon as he arrived Parisha was examined by Dr. Kamble (Exhibit 27) and sent to the operation theatre. The operation was performed by the honorary Surgeon Dr. Chopade. In view of the pus collection in the chest wall and the congestion of the lung, the patient was given high doses of anti-biotics. The patient did not survive and on 22-4-1979 passed away. To go back a little, Parisha was examined by the police and his statement was recorded at Exhibit 35.
4. To resume the narration where it had been last left, Parisha's corpse was sent to the mortuary and on 23rd April, 1979 a post-mortem examination performed there over by Dr. V.S. Patil (Exhibit 32). Dr. Patil found a number of ante-mortem injuries on the corpse and these are set out at Column-17 of the postmortem notes which are at Exhibit 33. Dr. Patil's opinion in relation to the cause of death was, ''shock due to severe pyogenic poritonitis.'' To put it in plain language, the deceased had expired because of the injuries turning septic.
5. On 16th April, 1979, the accused and Kumar, a juvenile at that date, were arrested. The investigation went apace and after completion thereof, a charge-sheet was filed. The J.M.F.C., Kurundwad, after having committed the usual enquiry, committed the accused to stand trial in the Sessions Court at Kurundwad Kolhapur. The prosecution against the accused was separated from that against Kumar, and the last named person was sent to the Juvenile Court. To the charge of having committed murder in furtherance of a common intention punishable under section 302 read with 34 I.P.C. the accused pleaded not guilty. Their defence was that relations between them and the material prosecution witnesses were seriously strained. This animosity was the reason for falsely implicating them for the murder of Parisha.
6. To establish its case against the accused, the prosecution examined a large number of witnesses who includes Appu, Annappa, Doctors Chopade, Kamble and Patil and the Investigation Officer etc. The trial Court held that Appu and Annappa were both interested witnesses, that it was highly doubtful if either of them was present when the crime was committed and that Parisha's statement at Exhibit 35 was not a dying declaration admissible in evidence within the contemplation of section 32(1) of the Indian Evidence Act. The other evidence said to corroborate the witnesses and the statement of Parisha was not of such a character as to lead to the conclusion that accused had committed the offence attributed to them. Being of this view, the learned Judge directed the acquittal of the accused, and it is that verdict which is assailed in appeal before us.
7. Mr. Patil appearing for the State submits that the Sessions Court was in error...firstly, in not accepting the claim of Appu and Annappa to have witnessed the severe beating inflicted on the person of Parisha. Secondly, it erred in holding that Exhibit 35 was inadmissible. Thirdly, the cumulative effect of the testimony of doctors should have led to the conclusion that Parisha died as a result of beating inflicted upon him which beating caused injuries, some of which sufficient in the ordinary course of nature to culminate in death. These contentions are disputed by Counsel for the respondent-accused. He submits that Annappa's name not having been mentioned in Exhibit 35, was by itself sufficient to discredit the claim made to the contrary by that witness while under examination in Court. As to Appu, the tale he told was incredible. He had not given a proper explanation for his presence at the spot when the occurrence took place. The prosecution had failed to examine Shabir Harugade and Birnale who were allegedly present when the crime was committed. This was deliberate and done with a view to deprive the defence of establishing its case that the accused had been falsely raped in. In any case, it was an appraisal resting on the account given by witnesses and an omission to examine important witnesses. The conclusion reached from these circumstances by the trial Court, apart from being appropriate, could not be said to be perverse or unreasonable, atleast to such an extent, as to warrant a reversal of the verdict of acquittal in an appeal. In relation to the admissibility of Exhibit 35, the learned Counsel Mr. Mundargi maintained that it did not come within either part of section 32(1) of the Evidence Act. Death was not caused by the injuries inflicted on the person of Parisha. As Dr. Patil had opined, the deceased expired on account of complications that had set in after he had been brought to the Sangli Civil Dispensary. Therefore, Exhibit 35 was inadmissible and the remaining evidence was worthless to connect the accused with the killing of Parisha.
8. The first issue to be determined is whether there is evidence to indicate that Parisha's death was homicidal ? The learned trial Judge has given a negative answer to this question. Mr. Patil for the State submits that this finding flies in the face of the opinion given by Doctors Ghorpade and Kamble. Dr. Patil's testimony had not been properly read and both these infirmities had led to the incorrect conclusion about Parisha not having died a homicidal death. It is not possible to accept this contention. Of the three Doctors the one who had best opportunity to make an appraisal was Dr. Patil. Dr. Chopde says that injury No. 3 on the chest of the deceased was sufficient in the ordinary course of nature to cause death. But he had not taken the depth of this injury which omission he has in clear terms admitted in paragraph 5 of his cross-examination. He was so overawed by appearances, that he had the patient removed as speedily as possible to the Civil Hospital at Sangli. The sight of bubbles coming out of the injuries led him to the conclusion that the lungs had been damaged and that inclined him to desist from a further probe into the internal organs. Turn now to the testimony of Dr. Kamble. He claims that the stab injury was sufficient in the ordinary course of nature to cause death and this he deduced from the fact that in its infliction the diaphragm had been cut. Again Dr. Kamble basis his opinion on superficial examination of the deceased. We, therefore, go to Surgeon Dr. Chopade who performed the operation. According to him, the cause of death was septicaemia. Of course, this septicaemia was due to the injuries. To put it in lay language, Parisha died because of severe infection. There is no denying of the correctness of Dr. Chopade's version, borne out as it is by the testimony of the Doctor who performed the postmortem examination. This Doctor viz. Dr. Patil in clear terms states that Parisha did not die because of his injuries. Both the external and internal injuries, whether taken singly or collectively were not sufficient in the ordinary course of nature to cause death. The injuries became septic and it was the deepening and spreading of that condition which led to the death of the victim. Now the septicaemia might have been because of the injuries or because of the incisions made by the operating Surgeon when performing the operation. Dr. Patil is not in a position to say what could have caused the septicaemia that killed Parisha. Septic may have set in the main injury inflicted upon Parisha or the cuts made by the Surgeon while performing the operation. The benefit of any uncertainty must go the accused and it will have to be held that the prosecution has not established a vital feature in a prosecution for murder, viz. that the deceased died a homicidal death.
9. Turn now to the eye-witnesses. First we shall deal with the adverse inference arising against the prosecution for its deliberate or unexplained failure to examine Shabir and Birnale. Now one has only to read the depositions of Appu and Annappa to realise the extent of ill-feeling between the accused on the one hand and almost the entire clan including Parisha on the other. Having regard to this bitterness between the two sides, it would be legitimate to hold that no person unconnected with either faction would lend his services as a witness in the fight between the two sides. It is all very well for the Sessions Court to remark that fairness to the Court required the prosecution to examine Shabir and Birnale. But if it was evident that they were not going to support the prosecution and on the contrary take the convenient stand that they did not know anything, it would have been a waste of public time for the prosecution to put the reluctant two sons into the witness box. Appu and Annappa having in their statement during investigation admitted the presence of these persons, went back thereupon to maintain that neither of them was present when the accused and Kumar gave a thrashing to Parisha. This is an indirect affirmation of the suspicion that had the two persons been examined, they would not have supported the prosecution. That Parisha had been beaten, and by some enemy or enemies who wanted to give him the thrashing of his life, cannot be disputed. The number of injuries on the person of Parisha speak for themselves. The incident took place in broad day-light and who was present or absent at the time is not of much importance for deciding the point under consideration. This point is whether the non-examination of Birnale and Shabir is so fatal to the prosecution case as has been concluded by the trial Judge. We cannot agree with him and when we so say, we make it clear that this in no way lessens our respect for the pains taken by him to appraise the evidence.
10. The above conclusion having been reached, does that mean that Annappa has to be believed when the claims that he was present ? The learned trial Judge has disbelieved his testimony and cited the omission of his name from Exhibit 35 in support of the conclusion reached by him. We see no reason to take a different view. Exhibit 35 is fairly detailed and it speaks of only two persons, other than the criminals being present, when the maker of the statement was assaulted. The two persons named by him are Appu and Shabir. If Annappa had been present, there is no reason why Parisha would not have named him at the first available opportunity. But Appu's presence is spoken of by Parisha in Exhibit 35. Mr. Mundargi contends that Appu's conduct is such as to discredit the possibility of his being present. First of all, no reason has been given as to how he came to be at the spot. We do not agree with this submission. Appu states that it was the sight of accused running behind the cycling Parisha which made him feel that something was amiss. He was not unaware of the bad blood between the accused and Parisha. His relations with the accused were strained and he was well disposed towards Parisha. Having regard to the long history of cases and counter-cases between the two factions, it must be assumed that Appu would not hang back and would try to get a ring-side to the anticipated violence. The very sight of the culprits running with weapons in their hands behind a hated fee was sufficient to draw out Appu from the place where he was working. Let it not be forgotten that it was Appu who fetched a taxi in which the deceased was carried to Kurundwad and Sangli. Let it also not be forgotten that it was Appu who produced Parisha's cycle for being attached by the investigating agency. Appu owns a piece of land in the neighbourhood of the scene of the crime. His name is mentioned in Exhibit 35. There is nothing so improbable in the account given by Appu as to inspire the inference that he is a got-up witness who fell in with the evil design of falsely implicating the accused because of the animosity he harbours against them. That there is no love test between Appu and accused is clear. But merely because the witness is well disposed towards another, does not disqualify him altogether. Here, the circumstances mentioned above show that Appu was in a position and could and did see the crime being committed. It is said that Appu had participated in a number of violent activities in the past and would not have sat by with folded hands while the accused were belabouring Parisha. But the accused had the advantage of lethal weapons with them. As against this Appu was unarmed and the merciless beating inflicted on Parisha must have also curbed any chivalrous instinct that he may have had. Now, there are some discrepancies in the account given by Appu. In his disposition in Court, he speaks of accused No. 1 having an axe and accused No. 2 a sickle and Kumar a dagger. There is a slight difference in the account given by Parisha in Exhibit 35, in that accused No. 1 was shown handling a sickle, accused No. 2 a scythe and Kumar a stick. But not much capital can be made about a variation in the weapons used by two persons, when the user is in a fast-moving incident. By and large, there is no serious infirmity attaching to the testimony of Appu. By itself it may not have inspired confidence and that may have compelled us to accept the view that commended itself to the Court which recorded his deposition and while doing so had the advantage of observing his demeanour. But borne out as it is by Exhibit 35 Appu's testimony gains credence and therefore has to be accepted.
11. This brings us to Exhibit 35. The learned trial Judge holds that it is not admissible. We will divide the discussion into two parts-first dealing with its admissibility and the second with the credence to attach thereto. Section 32(1) of the Evidence Act to the extent relevant reads thus:
''S. 32. Cases in which statement of relevant facts made by a person who is dead..........are themselves relevant facts in the following cases :---
(1). When the statement 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.'' In the instant case, the cause of Parisha's death has come into question. The prosecution offers Exhibit 35 as a statement of Parisha pointing to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. The learned trial Judge, having regard to the testimony of Doctors held that Parisha not having died as a result of injuries, Exhibit 35 was not attracted and was, therefore, wholly inadmissible. Mr. Mundargi has laboured strenuously before us to support that conclusion. He relies upon certain authorities to which we now turn. The first is Moti Singh v. State of U.P., . Briefly, the facts in that case were that the declarant Gaya Charan received injuries in an alleged assault. These injuries included a gunshot wound which had penetrated the abdomen. The Doctor who examined Gaya Charan opined that the injuries were dangerous to life. Gaya Charan after some days left the hospital either on the injuries healing up or before such healing-up had taken place. Quite sometime after he left the hospital, he expired. After his death his body was cremated, and it was in this background, that Gaya Charan's statement described as a dying declaration was offered to connect the persons prosecuted for the murder. The Supreme Court held that there being no evidence as to what caused Gaya Charan's death, it was an error to presume that the gunshot wound which was described as dangerous to life must have led to the death of the deceased. The statement of law then made was :---
''Clause (1) of section 32 makes a statement of a person who has died relevant only when that statement 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. When the deceased is not proved to have died as a result of injuries received by him in the incident where the deceased is alleged to have been killed his statement relating to that incident cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.'' The important missing link in the aforesaid case, is that there was no evidence as to how Gaya Charan died. All that was known, was that he had sustained a gunshot wound described as dangerous to life, and, the fact of death. The essential connecting link was missing. Rightly, therefore, section 31(1) embracing both the alternatives was excluded.
12. The next authority pointed out by learned Council is in (re Mallappa), A.I.R. 1962 Mysore 82. The facts in that case were that the accused inflicted a cut on his wife's back on the night of 7-2-1959 with a sickle. A month later, to be exact on 5-3-1959, the wife expired. The wife had given a statement explaining the cut on her back. The statement was sought to be offered and recourse was had to section 32(1) to get it admitted in evidence. The learned Judge held that the injuries sustained on 7-2-1959 not having been proved as contributing to the death of the deceased, the wife's statement making a reference there to, could not be said to establish the remotest connection between the injury and her death. Therefore, the said statement was inadmissible in law. With respect, we agree, but the position in the present case is different.
13. The general parameters of the latter part of section 32(1) of the Evidence Act have been stated with clarity in Narayanaswamy v. Emperor, A.I.R. 1939 Privy Council 47. The Judicial Committee speaking through Lord Atkin observed:
''A variety of questions has been mooted in the Indian Courts as to the effect of this (section 32(1)). It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the 'circumstances' can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. 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 the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person or that he has been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. 'Circumstances of the transaction' is a phrase no doubt that conveys some limitation. It is not as broad as the analogous use in 'circumstantial evidence' which includes evidence of all relevant facts. It is on the other hand narrower than 'res gestac'. Circumstance must have some proximate relation to the actual occurrence : though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that 'the circumstances' are of the transaction which resulted in the death of the declarant. It is not necessary that there should be known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that, 'the cause of (the declarant's) death comes into question.''
14. Some difficulty has been felt in comprehending the above passage. In fact Woodroffe and Amir Ali's commentary on the Law of Evidence, 14th Edition, remarks that difficulties have arisen in relation to what their Lordships meant to say or did not mean to say, in the passage above quoted. Decided cases furnish some guidelines as to how this section has to be interpreted. A case very close on facts to the one before us viz. Kesava Pillai Kanjar Pillai v. State, reported in A.I.R. 1952 Travancore-Cochin 70, has been of great assistance to us. What had happened in that case was that on 15-4-1923 when the deceased was crossing a public road, he came across the appellant. A quarrel ensued and offensive words were used by them against each other. Very soon there was a hand-to hand fight. In the course of the fight the accused used a penknife for stabbing the deceased. The deceased was taken to the Police Station where he made a statement which was treated as the F.I.R. Later, when he was lying at the Government Hospital, a dying declaration was recorded by a competent Magistrate. But it was the F.I.R. which was in issue before the High Court. For the accused, Counsel representing him relied upon two reported decisions which were distinguished by the Judges in these words :---
''It will thus be seen that in both the above cases there was a distinct finding that the cause of the death was something entirely different from the attack made on the victim by the accused. In the present case however, it is not possible to assert that the death was not the result of the stab wound inflicted on the chest of the victim. No doubt the man survived for a period of 4 1/2 months after he was admitted as an inpatient in a hospital. But the death was the result of a complication that arose as the result of the stab......In the present case we are satisfied that the facts fully warrant the assumption that the dying declaration, which refers to what took place at the time of the incident between the accused and the deceased contains a statement which will come within the second part of Clause (1) of section 32. Although it may not come under the first part of Clause (1), which pointedly refers to the cause of death, it will come under the category of a statement made by a person who died subsequently as to any of the circumstances of the transaction which resulted in his death, within the meaning of section 32, Clause (1), Evidence Act.''
15. Nearer home, we have the judgment of our Court in Allijan Munshi v. State, reported in A.I.R. 1960 Bombay 290. In that case section 32(1)'s user was sustained in regard to a statement contained in a complaint of the victim expressing an apprehension against the accused nearly two months before the commission of the crime. It was held that the interval between the two events, viz. the making of the complaint and the causing or the death, could not destroy the proximate connection between the two events which alone permitted recourse to section 32(1) of the Evidence Act. It is not necessary to multiply authorities on and the position emerging, is that where a direct or organic relationship between the death and the circumstances of a transaction which resulted in death is established, the second part of a section 32(1) can be taken recourse to. The words 'which resulted in his death' are not to be understood as synonymous with cause of his death appearing in the first part of the section. The distinction between the two is for a purpose, and, the said purpose is that the latter alternative is wider in scope than the former. Viewed in the light of this exposition the facts here clearly render Exhibit 35 admissible under the second part of section 32(1). The injuries may not have caused the death of Parisha. But what eventually led to his death, was something that flowed from the injuries. Let us go backwards and try to comprehend the position. Parisha died as a result of the septicaemia. Septicaemia set in because of an operation or post-operative complications. These complications would not have arisen, had he not sustained injuries. Therefore, the starting point was the receiving of the injuries by Parisha, and the culmination, was his death. Exhibit 35 explains the circumstances of the transaction beginning with the infliction of injuries on the person of Parisha. The other end takes the scene to his being passed from Doctor to Doctor and after breathing his last, being subjected to a postmortem examination. All the events constitute circumstances of the transaction-the transaction being one, concluding with the death of the deceased.
16. In the light of this analysis, we have to hold that the trial Court was in error in excluding Exhibit 35 from the admissible evidence which should have been taken into consideration to ascertain the culpability of the accused.
17. The next question is whether Appu's testimony buttressed as it is by the dying declaration at Exhibit 35 can be the foundation for recording a finding of guilt against the accused ? It is well-settled that a dying declaration by itself, if not suffering from any serious infirmity, is enough for finding the accused guilty. Here, it was argued that the prosecution had enough opportunity to arrange for the recording of Parisha's subsequent statements and that they could have done so through a specially commissioned Magistrate. But the very fact that this was not done, lends authenticity and credit-worthiness of a high order to Exhibit 35. Perhaps, his death was not apprehended and every one concerned was carried away by the medical opinion that Parisha would pull through. There is no reason to discount the recitals appearing in Exhibit 35 having regard to the many injuries the deceased sustained. The fact that the incident took place in broad day-light denies the defence of the opportunity to argue that the accused were implicated on suspicion. It is not possible that deceased would sustain so serious a beating and would absolve the real offenders to pounce innocent focs. Mr. Mundargi argued that the prosecution had not shown what exactly took place prior to the severe beating inflicted on the deceased. Unfolding of the background to a crime is not always required, and more-so, in a case of this nature where the two parties were virtually at each other's throats. In any case that background could have been unfolded by Parisha who is dead and the accused whose defence is the usual story of denial. One significant circumstance lending some truth to the occurrence is the report made by accused No. 1 at the Ichalkaranji Police Station. Accused No. 1 had gone to the said Police Station on 15-4-1979 and the report given by him was reduced to writing at Exhibit 44. In that report he spoke of injuries inflicted upon him by Parisha and his going to a dispensary to be examined and treated. Significantly the defence did not requisition or get produced the case-papers drawn up at the dispensary to which accused No. 1 threatened to go after making the report. The sure conclusion emanating is that the report was a counter-blast to the expected prosecution. The making of a false report by itself cannot be sufficient. But considered along with the order circumstances, it indicates that the accused had done the deed attributed to them therefore thought it necessary to cook up a plausible counterblast.
18. Now comes the discussion as to the exact offence committed by the accused and the sentence they merit. Once it is held that Parisha died as a result of the operation or post-operative complications his death cannot be laid at the doors of the accused. However, the accused would be guilty of having committed grievous hurt by dangerous weapons. They had endangered the life of Parisha, and in so, doing they had used lethal weapons like an axe or a sickle or scythe. The post-mortem note shows eight injuries sustained by the deceased had been caused by sharp and cutting substances and were also the result of his having been committed in furtherance of a common intention, both the accused would be liable under section 326 read with 34 of the Penal Code.
19. At this stage, Counsel are called upon to address us on the subject of sentence. Mr. Patil leaves the matter to us, making it clear, however, that an unarmed person was beaten like a dumb animal by as many as three persons. As against this, Mr. Mundargi points to the sex of accused No. 2 and the unblemished past of accused No. 1. It is brought to our notice that accused No. 2 was in custody from 10th April, 1979 to 3rd May, 1979. Having regard to all the circumstances including the long time that has elapsed since the unfortunate death of Parisha, we think that justice will be done by imposing a sentence of three years and fine of Rs. 3000/- upon accused No. 1. In case the fine is not paid, accused No. 1 shall undergo additional R.I. for a year. As to accused No. 2, she is sentenced to the period of imprisonment already undergone and a fine of Rs. 5000/- will be added. In case the fine is not paid, accused No. 2 shall undergo R.I., for a year. Out of the fine if paid Rs. 7000/- shall go as compensation to the heirs of the deceased. Hence the order :
Appeal allowed. The acquittal of the accused under section 302 read with section 34 I.P.C. while being confirmed, is submitted a conviction under section 326 read with 34 of the I.P.C. against both the accused. Accused No. 1 shall undergo three years R.I. and pay a fine of Rs. 3000/-. In default of payment of fine, he shall undergo additional R.I. for a year. Accused No. 2 is sentenced to the period of imprisonment already undergone and a fine of Rs. 5000/-. In case the fine is not paid, she will undergo additional R.I. for a period of one year. Out of the fine, if recovered, Rs. 7000/- shall go to the heir of the deceased towards compensation. On a request made by Mr. Mundargi, accused Nos. 1 and 2 are given six weeks' time to surrender in the Sessions Court at Kolhapur and also to pay the fine imposed upon them.
Ashok Agarwal, J.
1. While concurring with my brother Justice Daud, I proceed to add a few lines on the issue regarding the admissibility of the dying declaration (Exhibit 35). The accused in the present case caused injuries to the deceased. The deceased was operated upon and he subsequently died. The cause of death was given as septicaemia. Before death, the deceased made a dying declaration that he was assaulted by the accused. The question, therefore, posed is whether the statement of the deceased that he was assaulted by the accused and the accused caused several injuries to him is admissible.
2. Section 32 requires: (i) the cause of death must be in question; (ii) statement of the deceased must relate to cause of death; (iii) statement must relate to any of the circumstances of the transaction which resulted in death.
3. In the instant case, condition No. (i) is satisfied as a cause of death is in question. Re: condition No. (ii) the statement of the deceased does not give cause of death but only of the injuries being caused. If the evidence shows and in the present case it does show that he died on account of injuries, the statement would be admissible. Hence, in my view, the dying declaration would be admissible on the first part of section 32(1) of the Evidence Act.
4. Remaining question is Re: condition No. (iii) i.e. whether the statement of the deceased relates to any of the circumstances and whether the circumstances relate to the transaction which resulted in death. The said requirement would show that the statement must relate to: (a) a circumstances: (b) circumstance must be of the transaction which resulted in death. In my view the term 'circumstance' and the term 'transaction' are very wide. In other words, the statement must relate: (a) any circumstance; (b) circumstances must relate to transaction which resulted in death.
5. In the instant case, the statement is (i) a circumstance: (ii) it is part of the transaction which resulted in death. Hence, in my view, the said statement is admissible even under the latter part of section 32(1) of the Evidence Act.
6. Whether the injuries are sufficient in the ordinary course of nature to cause death or likely to cause death are factors not relevant for determining the relevancy of the statement under section 32(1) of the Evidence Act. Section 32 applies even to injuries which are not sufficient to cause death is relevant only to decide whether on the proved facts the offence is one under section 302 or 304 of the Penal Code and has no bearing at all on the question of admissibility of the statement of the deceased under section 32(1) of the Evidence Act. Hence, the statement of the deceased (Exhibit 35) would be admissible under both the clauses of section 32(1) of the Evidence Act.