In Re: Krishnama Naicken and Another

Horace Owen Compton Beasley, Kt., C.J.—The two appellants, the 1st and the 2nd accused in the Court below, were charged with the

murder of Krishnama Naicken early in the morning of the 2nd April, 1930, at a place called Peedampalli. They were both convicted of the offence

and the 1st appellant was sentenced to death and the 2nd appellant to transportation for life. [After narrating the facts of the case their Lordships

proceeded]

Reference has been made to the statement of the deceased recorded by the Sub-Assistant Surgeon, P.W. 1. That is Ex. B. It is very brief and is

as follows:

One Krishnama Naicken, son of Velappa Naicken of Peedampalli assisted by his brother-in-law, assaulted me with koduval, stick, etc., this early

morning at about 4-30 a.m. I was decoyed by accused Krishnama Naicken''s wife on plea of helping her from being brutally assaulted by her

husband. I, believing this to be true, went to a pallam near Nilama Naicken''s garden. The accused''s brother-in-law caught hold of my tuft and the

accused cut me with a koduval on my head. I fell down and both assaulted me with koduval and stick. I cried out and then the neighbours came

and took me to this dispensary. There was no one else present at the time I was assaulted, except the above three persons.

To P.Ws. 2, 3, 5, 8 and 13 the deceased stated that he was attacked by the 1st accused, that he beat the 1st accused with his stick and that the

2nd accused wrested the stick from him and beat him. In Ex. B he does not mention that he beat 1st accused with his stick. Ex. B was not read

over to the deceased nor does it bear his signature. In the Sessions Court objection was taken to the admissibility of Ex. B. P.W. 1 had stated that

he questioned the deceased in Tamil and recorded the statement in English whereupon objection was taken by the pleaders for the appellants. Ex.

B was, however, admitted and the learned Sessions Judge has made a note that the accused''s pleaders were offered the opportunity of testing the

witness in Tamil by reading him a short piece of Tamil but they declined the offer. Ex. B is attested by P.W.1''s compounder who was present

throughout the whole of the declaration. In his judgment the learned Sessions Judge in dealing with Ex. B states that ""it has been attacked but I see

no reason to doubt its genuineness."" That is the only reference he *makes to that document on the question of its admissibility. It appears therefore

that the only objection taken to the document by the appellants'' pleaders was that it was not a correct record of what the deceased stated. Here,

however, Mr. Joseph has contended that Ex. B is inadmissible. His argument is that as it was not actually written by the deceased but was written

by somebody else and was not read over to him after it had been so written and does not bear the signature of the deceased, it is not a written

statement within the provisions of Section 32 of the Indian Evidence Act and is, therefore, inadmissible as a written statement of the deceased. He

agrees that if such a statement is read over to the deceased and agreed to be correct or is signed by the deceased, then there can be no question

about its admissibility in evidence provided the person who wrote it is put in the witness box to state that he wrote it. He relies on what P.W. 1

stated in the Sessions Court, namely, ""As I found his condition to: be bad I took a dying declaration from the deceased at 10-30 p.m. and I

recorded correctly what he told me. It is Ex. B. I did not take his signature as his right arm was fractured."" His contention is that this is not being

the written statement of the deceased or recorded by some one else in compliance with the necessary formalities, the only evidence of"" what the

deceased said can be that of witnesses who state from memory what it was they heard the, deceased say. He agrees that those witnesses can be

allowed to refresh their memories by reference to any writing made by themselves at the time of the transaction--that is provided for by Section

159 of the Evidence Act--and he contends that that is not what P.W. 1 did in this case and that he did not state anything from memory but merely

put in Ex. B. Mr. Joseph agrees that he would not be able to take any exception to the evidence of P.W. 1 if that witness had said that he did not

remember the actual words of the deceased and had been allowed by the Court to refresh his memory. His objection of course is purely technical

and it is obvious that witnesses who depose to something they heard an injured man say with regard to those injuries shortly before death purely

from recollection, are not likely to be so accurate as a record made of the statement at the time. The evidence which is likely to be less accurate is

clearly admissible but when evidence which is more likely to be accurate is tendered, according to Mr. Joseph, it is inadmissible. He has referred

to some cases which according to him support his argument and render Ex. B inadmissible. One of these is The Empress v. Samiruddin ILR

(1881) C 211. There it was decided that the dying statement of a deceased person must be taken in the presence of the accused, that if not so

taken the writing cannot be admitted to prove the statement made and that the statement may be proved in the ordinary way by a person who

heard it and the writing may be used for the purpose of refreshing the witness''s memory. On page 213 the matter is thus dealt with in the judgment

of Pontifix and Field, JJ.:

The piece of evidence to which this observation relates is the dying statement of the deceased Baber Ali. This was recorded by the Deputy

Magistrate as a ''deposition''; but it does not appear that Baber Ali was examined in the presence of the accused Samiruddin, and unless he were

so examined by the Deputy Magistrate exercising judicial jurisdiction, the writing made ""by such Magistrate could not be admitted to prove the

statement made by the deceased. This statement must have been proved in the ordinary way by a person who heard it made. If the Deputy

Magistrate had been called to prove it, he might have refreshed his memory with the writing made by himself at the time when the statement was

made.

This is relied upon by Mr. Joseph as an authority in his favour because he argues that P.W. 1 did not use the writing to refresh his memory but

merely put it in without any attempt to refresh his memory or without having attempted to reproduce from his own recollection the words used by

the deceased. Another case referred to by him is Kunj Lal v. Emperor (1922) 67 I.C. 577 (Lah.). The headnote of that case is as follows:

Witnesses should not be allowed to prove a dying declaration as if it were a substantial piece of evidence in the case. The relevant fact to be

proved is the statement made by a deceased person admissible u/s 32 of the Evidence Act and that statement is not the document made by the

Magistrate but the verbal statement made by the deceased person. The only way of proving a dying declaration is by the evidence of some witness

who heard it made, the witness being at liberty to refresh his memory by referring to the note made by him or read over by him at or about the time

the statement was made.

But it would appear from the judgment on page 580, that the argument against the reception of the evidence of persons who heard the deceased

person make a statement which was recorded in writing was a valuable criticism only but the Court held that the two witnesses to whom the

statements were made by the deceased having been produced in Court and made available for cross-examination, the defect in the form in which

the dying statements were taken down did not destroy their value. In that case both the Sub-Inspector and the Magistrate went into the witness-

box. It is a very different thing when it is sought to put in a statement by itself without calling the person to whom it was made, to give evidence.

The Empress v. Samiruddin ILR (1881) C 211 was dissented from by Spencer and Phillips, JJ., in In re Karuppan Samban (1915) 31 I.C. 359

where it was held that it was not necessary in order to make a dying declaration admissible in evidence that the Magistrate who recorded it be

examined as a witness in the case). In the course of the judgment it is stated:

It is conceded that an oral statement of a deceased person as to the cause of his death, if made in the absence of the accused, may be proved by

any one who heard it made, as well as by the person who recorded it. That is sufficient for the purpose of the case, as Ex. D has been proved by

the Sub-Assistant Surgeon who heard the statement being made and signed it. With all due deference, we are unable to follow the learned Judges

who decided The Empress v. Samiruddiri ILR (1881) C 211 and King-Emperor v. Mathura Thakur (1901) 6 C.W.N. 72, when they say that the

only way of proving such a statement is by calling a person who heard it made and permitting him to refresh his memory from the writing u/s 159 of

the Evidence Act. Whether they are treated as written statements of deceased persons or as written records of verbal statements, Section 32 (1)

allows dying declarations which have been reduced to writing to be admitted as relevant facts. They thus become substantive evidence of the

circumstances leading to the deceased person''s death when the cause of the death is in question. A statement taken in the absence of the accused

from a witness for the prosecution is described as a ''deposition'' in Section 512, Criminal Procedure Code, but Sections 157 and 158 of the

Evidence Act show that, if it satisfies the conditions of Section 32, it is nevertheless a ''statement'' and as such is relevant whether the absence of

the witness is caused by his death or by some other cause which makes him incapable of giving evidence in person.

Mr. Ganapathi, the learned Acting Public Prosecutor, contends that whether the statement recorded is read over or not or whether it is signed

makes no difference and that the fact that it has been read over and signed by the deponent only makes its evidentiary value stronger and with this

contention we entirely agree. We are referred by Mr. Ganapathi to Emperor v. Balaram Das ILR (1921) C. 358 where it is stated:

An objection has been taken that as the Assistant Surgeon neither himself recorded the statement nor read it at the time when it was made, he

could not refresh his memory by reference to that statement u/s 159 of the Evidence Act. But we hold that the evidence that the deceased used the

words contained in the statement given By the witness who can speak to these words by refreshing his memory is not the only way in which the

statement of the deceased person can be proved. If the witness who heard that statement made swears that the written statement correctly

reproduces the words used by the deceased, this is sufficient to prove that the deceased did use the words contained in that statement. Here the

important part of the evidence is that the dying declaration was recorded* in the presence of a witness, that it was read over to the deceased in the

presence of the witness and was admitted by the deceased to be correct. This we think is sufficient. Our view is supported by the case of Gouridas

Namasudra v. Emperor ILR (1908) C. 659. There the written petition of complaint which contained the statement made by the deceased person

as to the cause of his death, was admitted in evidence on being proved by the mukhtear''s mohurrir, who had prepared it under personal

instructions, and who deposed that the deceased made the statement to him which, was correctly recorded in the petition.

The case of Gouridas Namasudra v. Emperor ILR (1908) C. 659 was not dissented from in this judgment because in the opinion of the Court

the evidence of the Assistant Surgeon fulfilled the test laid down in that case. This case decides that anybody who has heard the deceased make a

statement which has been recorded can give evidence of it either by refreshing his memory or from recollection without it. This, however, does not

quite meet the point of Mr. Joseph whose contention is that P.W. 1 neither refreshed his memory nor attempted from recollection to reproduce the

words used by the deceased. But upon this point Partap Singh v. The Crown ILR (1925) Lah. 91 is against him. In that case. a head constable

produced a document which purported to be the record of a statement made by a dying person and stated that he had recorded the statement

correctly as ""contained in the document and that the deceased was in his senses at the time but did not repeat in his own words what the deceased

had said; and it was held that inasmuch as the surrounding circumstances, and more especially the length of the period which intervened between

the recording of the statement and the trial of the case, rendered it impossible for the constable to recollect and repeat the words used, his

statement should be treated as if he had prefaced it by stating categorically that he could not remember"" what the deceased had said and that

Section 160 of the Evidence Act applies when the witness states in so many words that he does not recollect, and when the circumstances

establish beyond doubt that this is so and that having no specific recollection of the facts he can only testify regarding the contents of the document

before him and explain that he recorded correctly what the deponent said at the time. It is not clear whether in this case the statement made by the

deceased was read over to the deceased or not but in our view that does not affect the question of the admissibility of the document. On page 96

in the judgment it is stated as follows:

In Sections 159 and 160 of the Evidence Act a distinction is drawn between the manner in which a witness may refresh his memory by referring to

the writing and the testimony which he can give of facts stated in the document. If it is merely a question of a man refreshing his memory the

document itself is not tendered in evidence, and the witness merely gives evidence in the ordinary way after reading what has been written. Section

i60 deals with the case where in spite of having written or read a document under the circumstances described in Section 159 the witness has got

no specific recollection of the facts therein recorded, but is sure that they were correctly recorded. Where this is the case the witness is still entitled

to testify to the facts and the document itself is then tendered in evidence.

Further on it is stated:

Section 160 of the Evidence Act applies equally"" when the witness states in so many words that he does not recollect and when the circumstances

establish beyond doubt that this is so. Having no specific recollection of the facts he can only testify to the effect that he recorded correctly what

the deponent said at the time.

We think that as the statement was recorded in April and the evidence was not given by P.W. 1 at the Sessions trial until July, P.W. 1 cannot be

expected accurately to reproduce the words of the deceased and that he was entitled therefore to put in Ex. B as a correct record of what the

deponent said at the time. We guard ourselves from saying that when a dying declaration has been recorded and has been read over to the

deponent and agreed to be correct it can be put in by itself and treated as substantive evidence without calling the person who recorded it, as we

are of the opinion that the evidence of the person who recorded it or in his unavoidable absence some other person who was present and heard it

correctly recorded should always be taken to make the written record admissible. Ex. B was therefore correctly admitted in evidence in the Lower

Court as a record of the. statement made by the deceased by P.W. 1 from which P.W. 1 refreshed his memory. The evidence of P.Ws. 2 and 3

corroborates the statement made by the deceased to P.W. 1.

[Their Lordships then discussed the evidence and said]

We agree with the learned Sessions Judge that the evidence proves that both the appellants are guilty of the murder of Krishnama Naicken;

and their convictions in the Lower Court of that offence must be confirmed. We also confirm the sentence of death passed upon the 1st appellant

and the sentence of transportation for life passed upon the 2nd appellant. The appeal is dismissed.