Maker of statement must be aware about the commission of offence.

Petitioner is the accused in Sessions Case No. 30 of 1981 on the, file of the Additional Sessions Judge, Mavelikkara. He is being tried for the offence of murder of his wife during the night between 19th and 20th January, 1981, by applying force and thereby strangulating her neck. His mother had been cited as a witness and before, she could be examined, she died. During investigation, her statement had been recorded by a competent Magistrate under section 164 of the Code of Criminal Procedure (for short the, Code’). When the investigating officer was examined in the course of the trial, the Public Prosecutor made an attempt to prove and mark the statement of the mother recorded under section 164 of the Code. The admissibility of the document was objected to by the defence. However, the learned Sessions Judge overruled the objections and allowed the document to be proved and marked, as admissible under section 32 (3) of the Indian Evidence Act (for short ‘the Act’). It is the legality of this order which is challenged by the accused in this revision petition.

2. Ordinarily, I would not have been inclined to go into the legality of the order in revision even while the trial is pending in the Sessions Court; however, I think it is necessary to do so in view of the importance of the question involved in the case.

3. The prosecution case is that sometime between 10-30 p.m. on 19th January, 1981 and 6-30 a.m. on 20th January, 1981, the revision petitioner committed the murder of his wife by strangulating her. The mother, whose statement was recorded under section 164 of the Code, was not an eye-witness. In her statement, she stated that about three months previously at about 9 p.m., her husband went to the Pandalam market taking two plantain bunches with him. Her son John (revision-petitioner) was not in the house. She and her daughter-in-law, Kunjumol took food. At about 10 p.m., revision-petitioner came and went to his bedroom where he and his wife used to sleep. Kunjumol got up and was seated on a cot. Revision-petitioner went out, washed his feet and took food served by her. Thereafter, he went to his bed-room and bolted it from inside. She also went to bed. Next morning at about 6 a.m., she got up and busied herself in milking her goat. When she was coming back to the house, the revision-petitioner opened the door of the bed-room, came out and ran away to the purayidam. Seeing that the daughter-in-law was not coming out of the bed-room she went there and called her. She found Kunjumol lying dead. She asked the revision-petitioner what happened and he said he did not know. He went to call his paternal uncle who rushed there along with his wife and children. Her husband's brother went away to give information to her husband. The neighbouring ladies also came and washed the dead body after taking the dead body to the courtyard. Later Kunjumol's relations came there and said they had suspicion and gave information to police. Police arrested her and her husband. She did not know anything else. The case was registered as a case of suspicious death.

4. Evidently, the prosecution wants to rely on certain portions of this statement against, the revision-petitioner. Prosecution would like to rely on the statement to the effect that the revision-petitioner went inside his bedroom and bolted the door from inside and in the morning came out and ran away to the purayidam. The learned Sessions Judge was of the view that the, statement is admissible under section 32(3) of the Act. This conclusion is seriously challenged by the teamed Counsel for the revision-petitioner.

5. Section 32 (3)reads thus:

“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. — 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 unde