(1) An interesting question of law which does not appear to be covered by any decision of the supreme Court or this Court arises for decision in this case.
(2) The appellant was charged for the murder of his mistress Shiddawwa. It is said that due to some petty quarrel the appellant cut her on here back on the night of 7-2-1959 with a sickle and about a month thereafter she died. The injured was admitted to the hospital on 8-2-1959 but, we are told that she was discharged from hospital as desired by her relations on 5-3-1959 and that she died on 5-3-1959. Post-mortem examination of her dead body very soon after her death.
(3) The prosecution produced in support of its case (1) the evidence of the alleged eye-witness and (2) the dying declaration of the deceased marked as Ex. 5 (b). So far as the evidence of the occurrence witness is concerned all of them without exception have turned hostile to the prosecution and the learned Government Pleader conceded that without the assistance of the evidence afforded by the dying declaration, the remaining evidence is insufficient to convict the appellant. There fore, the primary question for our consideration is whether the dying declaration (Ex 5 (b) ) is admissible in evidence and whether the same can be relied on.
(4) We have earlier mentioned that on autopsy on the dead body of the deceased was done. It is true, the Doctor who treated the injured ( P.W. 4) deposed that the injury sustained by the deceased was a dangerous one. But admittedly he had discharged her on 5-3-1959. According to him, the injury in question appeared to have been healed at the time of her discharge though he still opines that she is likely to have died as a result of that very injury. The Doctor's evidence, taken at its face value, merely shows that the injury in question might have been the cause of her death. As observed by an eminent judge, there is a long way between 'may' and 'must' and all that way must be covered by the prosecution. In the instant case, it is not positively established that the injury was one of the factors that contributed to her death. Further, the evidence on record is not even sufficient to come to the conclusion that that injury was on exhibit of the factors that contributed to her death. Before the aid of S. 32(1) of the Evidence Act can be availed of , the prosecution has to establish that the statement in question 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 and that in cases in which the cause of that person's death comes into question.
As mentioned earlier, the evidence as it stands is insufficient to hold that the injury sustained by the deceased was the cause of her death. In this connection, Sri Mahajan, the learned counsel for the appellant has invited our attention to the decision in Kappinaiah v. Emperor, AIR 1931 Madras 233 (2) wherein the scope of S. 32(1) came up for examination. In that case, a woman who was alleged to have been ravished by the appellants therein committed suicide three days after she was ravished; but before committing suicide it was said that she had Made a dying declaration before her mother-in-law. The question for consideration by their Lordships was whether that statement was admissible under S. 32(1). Their Lordships observed that S. 32 refers to actual cause of death, or to the transaction resulting in death; if a woman is raped and she decides three days later to commit suicide, the rape is not the cause of her death nor is it a transaction resulting in her death, though it may be the contingent motive; hence the statement made by the woman to her mother-in -law immediately after the rape does not become admissible under S. 32.
Next, the decision in Wali Mohomed v. Emperor, AIR 1930 Oudh 249 was cited to us. There in the injured died some days after he was admitted to the hospital as a result of an attack of pneumonia. In that case also the statement made by the deceased as to the cause of the injuries sustained by him was held to he inadmissible. We are in respectful agreement with the view that before a statement could be held admissible under S. 32(1) is must either relate to the cause of the death of the maker of the statement or to some circumstance of the transaction which resulted in his death.
(5) In addition to the two decisions referred to above, the learned Government pleader (sri N. Santosh) with his usual fairness invited our attention to the decision in Abdul Gani v. Emperor : AIR1943Cal465 . In that case the injured dided died some days after being discharged from the hospital. The immediate cause of death was fever. The question whether the declaration made by the deceased prior to his death was admissible under S. 32(1) came up for consideration. The Court opined that :
'The provisions of S. 32 are in the nature of exceptions, and the onus of establishing circumstances that would bring a statement within any of the exception contemplated by section 32 lies clearly upon that party which wishes to avail it self of the statement . Where there is nothing to show that the injury to which a statement relates was the cause of the injured person's death, or that the circumstances under which it was received rested in his death, the statement is not admissible under S. 32(1)'. (As summarised in the head-note).
It appears to us to be obvious, as it appeared to their Lordships of the Calcutta High Court that the burden of establishing the requirements of Section 32 is on the prosecution. Due to whose ever fault it might be, the fact remains that prosecution has not been able to establish that the injury sustained by the deceased on 7-2-1959 was either the cause of the death of the deceased or it was a circumstances of the transaction which resulted in her death.
(6) The expressions 'any of the circumstances of the transaction which resulted in his death' is an expression which is so what ambiguous. The Judicial Committee in Narayanaswamy v. Emperor dealing with that expression observed :
' A variety of questions has been mooted in the Indian Court's as to the effect of this Section (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 had arisen, or before the deceased has nay 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 statement 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 was going to meet a particular person or that he had been invited by such a person that meeting would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accusted. Such a statement might indeed be exculpatory of the person accused. 'Circumstances of the transaction's a phrase no doubt that conveys some limitations. 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 'representations gestae'. Circumstances must have some proximate relation to the actual occurrence: though, as for instance, in a case of prolonged poising 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 a 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'.'
If the rule laid down in the above decision is applied to the facts of the present case, it will be seen that the stabbing on 7-2-1959 is not proved to be a 'circumstance of the transaction' which resulted in the death of the deceased. To put it differently, it is not proved that the injury sustained by the deceased on 7-2-1959 had in any manner contributed to the death of the deceased. No connection, however remotely it may be we have to held that Ex. 5 (b) (the dying declaration) is in admissible in law. Hence, it is not necessary to consider the value to be attached to that declaration .
(7) In the result, the appeal is allowed and the accused acquitted. His bail bonds do stand cancelled.
(8) AF/V.S. B.
(9) Appeal allowed.