Introduction 

This is a landmark judgment relating to dying declaration under Section 32 (1) of the Indian Evidence Act, 1872. 

• This judgment was delivered by Justice Atkin.     

Facts  

• The body of the deceased man was found in a steel trunk in a third class compartment at Puri. 
• It was later found that the deceased was a peon in service of the Dewan of Pithapur one of whose daughters was the wife of the accused. 
• In 1919 the accused and his wife were married and they went to live at Berhampur which is about 250 miles from Pithapur. 
• In 1933 they returned to Pithapur where they appear to be in need of money and hence, the wife of the accused borrowed money from the deceased. 
• On 20^th March 1937 the deceased man received a letter from the contents of which it was clear that he was invited to Berhampur to get back the amount. The letter however, was not adequately proved and it was unsigned. 
• The widow of the deceased stated that he had shown the letter to him and said that he was going to Berhampur to get back the money that was due. 
• The following persons were made accused in this case: the accused, his wife, his wife’s brother and his clerk living in the house with them.  
• The evidences presented before the Court were as follows: 
  • A search was conducted of the premises of accused from where a bundle of rags were found buried at a depth of about eighteen inches in the compound. 
  •  Evidence of two employees was given who worked in a shop at Behrampur where trunks were made and sold. He gave evidence that washerman of the accused had ordered a trunk. The sale of the trunk was thus proved. 
  • Evidence was also given by a jetka driver who testified that accused had come to his house and said that he wanted a jetka and that a trunk was loaded on his jetka and same was taken into the station. 
  • The above evidence was corroborated by a man who ran alongside the jetka. 
• The Sub-divisional Magistrate, after hearing the evidence, discharged the accused.  
• At the trial before the Sessions Judge acquitted the appellant’s wife of all charges but convicted the appellant of murder and sentenced him death. 
• The decision of the Sessions Judge was affirmed by the High Court of Patna. 
• Consequently, a Special Leave Petition was filed before the Court. 

Issue Involved

• Whether the statement of the widow whereby she was told that the deceased was going to the house of the accused to take his dues is admissible under Section 32 (1) of the Indian Evidence Act, 1872 (IEA)? 

Observations 

• With Respect to the issue of Dying Declaration under Section 32 (1) the Court held: 
  • The Court discussed what would fall under the expression “circumstances of transaction”: 
    • This phrase is not as broad as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. 
    • On the other hand it is narrower than res gestae. 
    • Circumstances must have some proximate relation to the actual occurrence 
  • The Court held in this case that the statement made by the deceased that he was setting out to the place where the accused lived, and to meet a person, the wife of the accused, who lived in the accused's house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death. 
  • Thus, the Court held that the statement was rightly admitted in the present facts. 
• The Court also discussed in this case as to what would constitute ‘confession’.  
  • A confession must either admit in terms the offence or at any rate substantially all the facts which would constitute the offence. 
  • An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. 
• Thus, the Court held that in the present facts there is ample evidence of the presence of the deceased at the house of the accused. 
• Hence, in the present facts it was held that the Court was correct in holding the accused guilty.   

Conclusion 

• This is a very important judgment where the Court discussed dying declaration under Section 32 (1) of IEA 
• This case also holds importance as it lays down as to what would confession which is not defined in the IEA.