1953 Supreme(Cal) 43

HIGH COURT OF CALCUTTA
MITTER, SEN GUPTA
SATISH CHANDRA SAHA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Criminal Appeal 63  Of  1952
Decided On : FEBRUARY 25, 1953

A statement 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 is admissible in evidence under Section 32 (1), Evidence Act.

Headnote:

CRIMINAL LAW - Evidence - Dying declaration - Admissibility - Statement of deceased as to cause of death or circumstances of transaction resulting in death - Statement made by deceased to witness on way to house of accused to recover cow detained by accused - Held, admissible under Section 32 (1), Evidence Act.

Fact of the Case:

The appellant was convicted of causing the death of one Chaitanya Saha. The prosecution case was that the appellant and the deceased were co-villagers and neighbours. On the day of the incident, the deceased went to the appellant's house to recover his cow which the appellant had kept confined. While proceeding from his own house to that of the appellant, along the village road, he was accosted by one Keshab Saha who was then sitting with another person on a 'machan' in front of a shop. Chaitanya stated that he was proceeding to the appellant's house to recover and fetch his cow which the appellant had kept confined there. Shortly after Chaitanya had passed that way, Keshab and his two companions heard Chaitanya cry out that he was being killed by the appellant. On hearing this, Keshab flashed a torch light in the direction of the cry and saw the appellant strike Chaitanya on the shoulder and then walk back to his house. Chaitanya was taken to the hospital where he made a dying declaration. The appellant was arrested and charged with causing the death of Chaitanya.

Finding of the Court:

The court held that the statement made by the deceased to Keshab Saha on his way to the appellant's house was admissible in evidence under Section 32 (1), Evidence Act. The court held that the statement was a statement as to a circumstance of the transaction which resulted in the deceased's death. The court also held that the learned Judge erred in directing the jury that P. W. 3 Keshab had stated in the first information report that he had in fact seen the accused strike the deceased with an axe. The court further held that the learned Judge erred in directing the jury that no contradiction had been brought out by the defence between the statement which Hazari had made to the police and his evidence in Court.

Issues: 1. Whether the statement made by the deceased to Keshab Saha on his way to the appellant's house was admissible in evidence under Section 32 (1), Evidence Act? 2. Whether the learned Judge erred in directing the jury that P. W. 3 Keshab had stated in the first information report that he had in fact seen the accused strike the deceased with an axe? 3. Whether the learned Judge erred in directing the jury that no contradiction had been brought out by the defence between the statement which Hazari had made to the police and his evidence in Court?

Ratio Decidendi: 1. The court held that the statement made by the deceased to Keshab Saha on his way to the appellant's house was admissible in evidence under Section 32 (1), Evidence Act. The court held that the statement was a statement as to a circumstance of the transaction which resulted in the deceased's death. The court relied on the decision of the Privy Council in the case of 'Pakala Narayan Swami v. Emperor', AIR 1939 PC 47, in which it was held that a statement made by the deceased to his wife that he was proceeding to Berhampore, where ultimately he was murdered, was admissible in evidence under Section 32 (1), Evidence Act. 2. The court held that the learned Judge erred in directing the jury that P. W. 3 Keshab had stated in the first information report that he had in fact seen the accused strike the deceased with an axe. The court held that this was an incorrect statement of fact, as P. W. 3 did not only not say that he saw the accused strike the deceased but from the narrative as given by him in the first information report it would be quite clear that neither he nor any of his companions saw the accused actually hit the deceased. 3. The court held that the learned Judge erred in directing the jury that no contradiction had been brought out by the defence between the statement which Hazari had made to the police and his evidence in Court. The court held that this direction was in contravention of Section 162, Criminal P. C., which controls the general provisions of Section 157, Evidence Act.

Final Decision: The court set aside the conviction and sentence imposed upon the appellant and ordered that he be retried by a learned Sessions Judge sitting with a jury upon the same charge.