ORDER
U.L. Bhat, J.
1. Petitioner is the accused in Sessions Case No. 30 of 1981 on the file of the Additional Sessions Judge, Mavelikara. He is being tried for the offence of murder of his wife during the night between 19th and 20th January, 1931 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 161 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 some time between 10.30 p.m. on 19-1-1981 and 6.30 a.m. on 20-1-1981 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 plantation 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 bed-room where he and his wife used to sleep. Kunjumol got up and was seated on a col. 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 goal. 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 bed room 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 learned 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 under the circumstances of the case appears to the Court unreasonable, are themselves, relevant facts in the following cases:–
When it relates to cause of death. (1)……………………..
or is made in course of business:– (2)……………………
or against interest of maker:— (3) When the statement is against the pecuniary or proprietary interest of the person, making it, or when, if true, it would expose him, or would have exposed him to a criminal prosecution or to a suit for damages.”
6. The provisions in Section 32 of the Act constitute some of the exceptions to the rule relating to hearsay evidence. Certain statements of persons who are dead or who are not available to give any evidence or who are incapable of giving evidence or who are not available to give evidence are rendered admissible under Section 32 under certain specified circumstances. According to Sub-section (3) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him to a criminal prosecution or to a suit for damages, the statement constitutes a relevant fact and therefore evidence of the relevant fact could be given under Section 5 of the Act. In order that the statement is to be treated as a relevant fact, it must be, at the time of its making, against the pecuniary or proprietary interest of the maker. A statement which, if true, would expose the maker or would have exposed him to a criminal prosecution or a suit for damages is also a relevant fact.
7. This rule has a rationale behind it. The exclusion of hearsay evidence is based on serious reservations about the authenticity, genuineness and accuracy of hearsay evidence. When a person makes a statement against his interest or when a person makes a statement which exposes him to a criminal prosecution or to a suit for damages, the law presumes that what is stated is probably true and also accurate. Self-interest is sufficient security against wilful misstatement or want of knowledge on the part of the declarant. Normally, evidence is tested by oath and cross-examination. Such tests could not have been applied to a statement of the kind mentioned in Section 32. The place of tests of oath and cross-examination is in some measure supplied by the circumstances of the maker of the statement and the character of the statement. There is a measure of guarantee of truthfulness and accuracy in such statements since they were made against the interest of the maker. It is improbable that people will make such statements unless they are true. When a person makes such an incriminating statement knowing that it will expose him to criminal prosecution, there is a reason to presume that the statement must have been true and accurate. No doubt, there is a certain degree of inconvenience and prejudice caused to the person against whom the statement, is sought, to be used. At the same time, there is also prejudice and inconvenience in the matter of establishing truth in a Court of law. The provision proceeds on an appreciation of the conflicting circumstances and chooses what is apparently a lesser evil i.e., rendering of the statement admissible. Of course, the maker must be aware that the statement will expose him to such hazards as are contemplated by the provisions. This is evidently an exception to hearsay rule; it is also an exception to the rule that confession can be used only against, its maker.
8. A statement against the interest or a statement exposing the maker to criminal prosecution etc. would be relevant only if the maker was aware at the time of making the statement that the statement would be against his interest or would expose him to criminal prosecution etc. It must have been made consciously, with the knowledge that it was against his interest. Whether it was so, made is, of course, a question of fact to be decided by the Court on the facts and circumstances of each case. See Smt. Savithri Devi v. Ram Ran Bijoy Prosad, (AIR 1950 PC 1) and Ramrati Kuer v. Dwarika Prasad Singh (AIR 1967 SC 1134).
9. The order passed by the learned Sessions Judge does not show that he approached the question in the light of the position of law as explained above. He held:
“I am of opinion that the circumstances spoken to by her if true, are such that an ordinary and prudent man would have reason to believe that the accused is involved in the death of Kunjumol and that therefore, as provided, under Section 39 Cr. P. C., she was bound to inform the matter to police. But she has not given such information to police, but she was proceeding with acts for the disposal of the dead body thereby, prima facie, committing an offence punishable under Section 202 IPC. This means that the statement recorded is, if true, self incriminating so far as the maker is concerned and as such it is admissible in evidence under Section 32 (3) of the Indian Evidence Act.”
10. Section 39 of the. Code states, inter alia, that every person aware of the commission of, or of the intention of any other person to commit any offence punishable under certain sections of the Indian Penal Code (enumerated therein), shall, in the absence of any reasonable excuse, forthwith give information to the nearest Magistrate or Police Officer of such, commission or intention. The sections enumerated include Sections 302, 303 and 304 IPC. In order that Section 39 of the Code should be attracted, the person must he aware of the commission of any offence under the enumerated sections, (intention to commit an offence does not arise in this case) then only the person has a duty to inform authorities. Later investigation may reveal or establish the commission of an offence under Section 102 IPC. The court may ultimately convict the culprit for the offence of culpable homicide. None of these future contingencies by itself is sufficient to attract the applicability of Section 39 of the Code. The maker of the statement must be aware, at the time of making the statement, that an offence (of the kind mentioned) had been committed. The state of mind, the belief of the maker is crucial. A. prudent person on making due enquiry or by a reasonable deductive process may arrive at the awareness that such an offence had been committed; but that does not mean that the maker of the statement had the awareness. His duty to inform arises only on his awareness of commission of offence. When he is not so aware, naturally he could not give any information and it cannot be said that he had a duty to inform. Awareness is not something which could be proved independently. That must be reflected in the statement sought to be declared as admissible. Unless the statement itself spelled out the commission of an offence and the maker’s awareness of the same, duty to inform could not have arisen; consequently the maker could not have been conscious that the statement would expose or would have exposed the maker to criminal prosecution for an offence under Section 176 IPC or otherwise. Awareness is different from and something more than suspicion. The statement in controversy in this care does not exhibit any awareness or even suspicion on the part of the maker that an offence under Section 302 or 304 IPC had been committed. Hence she did not have the duty to inform. The statement also did not state that she was not informing or had not informed the authorities. The maker of the statement could not have been conscious, at the time of making the statement, that the statement would expose her or would have exposed her to criminal prosecution for an offence under Section 176 IPC or for any other offence involved in contravening Section 30 of the Code.
11. Learned Sessions Judge also indicated that the maker was proceeding with acts for disposal of the dead body. The statement does not indicate any such act either expressly or by implication. In the statement, she only stated that the neighbouring ladies came and took the dead body out and washed the dead body. The statement does not indicate that that was done at her instance. Even if she had directed the dead body to be washed, that would be culpable only if she was aware or had knowledge that an offence had been committed with reference to the death of Kunjumol. A plain reading of the statement does not indicate that she was aware or had knowledge of the commission of any such offence. Nor does it spell out any circumstance which would give rise to a duty in her as contemplated under Section 39 of the Code. Learned Sessions Judge was in serious error in taking a contrary view. Therefore, the statement given by her under Section 164 of the Code could not be said to be a statement, which, if true, would expose her or would have exposed her to criminal prosecution. The order passed by the learned Sessions Judge treating the statement as a relevant fact under Section 32 (3) of the Act, is unsustainable and the same is set aside. The Crl. R. P. is allowed in this manner.