{"id":35295,"date":"1961-03-27T00:00:00","date_gmt":"1961-03-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/in-re-mallappa-shivingappa-vs-unknown-on-27-march-1961"},"modified":"2018-04-17T18:01:02","modified_gmt":"2018-04-17T12:31:02","slug":"in-re-mallappa-shivingappa-vs-unknown-on-27-march-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/in-re-mallappa-shivingappa-vs-unknown-on-27-march-1961","title":{"rendered":"In Re: Mallappa Shivingappa … vs Unknown on 27 March, 1961"},"content":{"rendered":"
Karnataka High Court<\/div>\n
In Re: Mallappa Shivingappa … vs Unknown on 27 March, 1961<\/div>\n
Equivalent citations: AIR 1962 Kant 82, AIR 1962 Mys 82<\/div>\n
Author: Hedge<\/div>\n
Bench: K Hegde, M A Khan<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Hedge, J.   <\/p>\n
 (1) An  interesting question  of law which does not appear to be covered by any decision of the supreme  Court or this Court  arises for decision in this case.\n<\/p>\n
 (2)  The appellant was charged for the murder of his mistress Shiddawwa.  It is said that due to  some petty quarrel the appellant cut her on here back on the night of 7-2-1959 with a sickle and about a month thereafter she died.   The injured was admitted to the hospital on 8-2-1959 but, we are told that she was  discharged from hospital as desired by her relations on 5-3-1959 and that  she died on  5-3-1959.  Post-mortem examination of her dead body very soon after her death.\n<\/p>\n
 (3)  The prosecution produced in support of its case (1) the evidence of the alleged eye-witness and (2)  the dying declaration of the deceased marked as Ex. 5 (b).  So far as the evidence of the occurrence witness is concerned all of them without exception have turned hostile to the  prosecution   and the learned Government Pleader conceded that without the assistance of the evidence afforded by the dying declaration, the remaining evidence is insufficient to convict the appellant.  There fore,  the primary  question  for our  consideration  is whether  the dying declaration (Ex 5 (b) )   is admissible in evidence and whether the same can be relied on.\n<\/p>\n
 (4)  We have earlier mentioned that on autopsy on the dead body of the deceased  was done.  It is true, the Doctor who treated the injured  ( P.W. 4) deposed that the injury sustained by the deceased was a dangerous one. But  admittedly he had discharged her on 5-3-1959.  According to him,  the injury in question appeared to have been healed at the time of her discharge though he still opines that she is likely to have died as a result of that very injury.  The Doctor’s evidence, taken at its face value, merely shows  that the injury in question  might have been   the cause of her death.   As observed by an eminent judge,  there is  a long way between ‘may’  and ‘must’ and all that  way must be covered  by the prosecution.  In the instant case,  it is not positively established that the injury was one of the factors that contributed  to her death.   Further, the evidence on record is not even sufficient to come to the conclusion  that that injury was on exhibit of the factors  that contributed  to her death. Before the aid of  S. 32(1) of the Evidence Act can be availed of , the prosecution has to establish that the statement in question  is 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 and that  in cases in which the cause of that person’s death comes into question.\n<\/p>\n
 As mentioned earlier,  the evidence as it stands is insufficient to hold that the injury sustained by the deceased was the cause of her death.   In this connection, Sri Mahajan,  the learned  counsel for the appellant has invited our attention to the decision in Kappinaiah v.  Emperor, AIR 1931 Madras 233 (2) wherein the scope of S.  32(1) came up for  examination.   In that case,  a woman who was  alleged to have been   ravished by the appellants therein  committed suicide three days after she was  ravished; but before committing suicide it was said that she had Made a dying declaration before her mother-in-law.  The question  for consideration  by their Lordships was whether that statement was admissible under S.  32(1).  Their Lordships  observed that  S. 32  refers to  actual  cause of death,  or to  the transaction resulting in death;   if a woman is raped and she decides three days later to commit suicide, the rape is not the cause of her death nor is it  a transaction  resulting in her death, though it may be  the contingent motive; hence the statement  made by the woman to her mother-in -law immediately after the rape does not become admissible under S.  32.\n<\/p>\n
 Next,  the decision in  Wali Mohomed v.  Emperor, AIR 1930 Oudh  249 was cited to us.   There in the injured died some days after he was  admitted to the hospital as a result of an attack of  pneumonia.  In that case also the statement  made by the  deceased as to the cause of the injuries sustained by him was held  to he inadmissible.  We are in respectful agreement with the view  that before a statement  could be held  admissible under  S. 32(1) is must  either  relate to the cause of the death  of the maker of the  statement  or to some circumstance  of the transaction which resulted in his death.\n<\/p>\n
 (5)  In addition to the  two decisions referred to above,  the learned Government  pleader (sri N. Santosh) with his  usual fairness invited our attention to the decision in Abdul Gani v.  Emperor, AIR 1943 Cal 465.  In that case the injured  dided died  some days  after being discharged  from the hospital. The immediate cause of death was fever.   The question  whether  the declaration made by the deceased prior to his death was admissible under S.  32(1)  came up for consideration.  The Court  opined that :\n<\/p>\n
   “The provisions of S. 32 are in the nature of exceptions, and the onus of establishing circumstances  that would bring a statement  within any of the exception contemplated by section 32 lies clearly upon that  party which wishes to avail it self of the statement . Where there is nothing  to show that  the injury to which  a statement  relates  was the cause of the injured person’s death, or that  the circumstances  under which it was  received rested in his death, the  statement  is not admissible under S. 32(1)”.   (As summarised in the  head-note).\n<\/p>\n
It appears to us to be  obvious, as it appeared to their Lordships of the Calcutta High Court  that  the burden of establishing the requirements of Section 32 is on  the prosecution. Due to  whose ever fault it might be,  the fact remains that prosecution has not been able to establish that the injury  sustained by the deceased on 7-2-1959 was either the cause of the death of the deceased or it was  a circumstances  of the transaction which resulted in her death.\n<\/p>\n
 (6)  The expressions “any of the circumstances  of the transaction which resulted in his death” is  an expression which is so what ambiguous.   The Judicial Committee in Narayanaswamy v. Emperor,  AIR 1939 PC 47 dealing with  that  expression observed :\n<\/p>\n
   ” A  variety of questions has been mooted in the Indian Court’s  as to  the effect of this Section  (section 32(1).  It has been suggested that the statement  must be made after the transaction  has taken place,  that the person making it must be  at any  rate near death,  that the ‘circumstances’   can only  include the acts done when and where the death was caused.   Their Lordships are of opinion that the natural meaning of the words used does not convey any of these  limitations.  The statement  may be made before the cause of death had arisen, or before the deceased has nay reason to anticipate being killed.  The circumstances,  must be   circumstances of the transaction:   general expressions  indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the  occasion of  the death will not be admissible.  But statement  made by the deceased  that he was proceeding  to the spot where  he was  in fact killed,  or as to  his reasons for so  proceeding,  or that  he was  going  to meet a particular person or that  he was going to  meet a particular person or that  he had been invited by such a person that meeting   would each of them  be circumstances  of the transaction, and would  be so whether the person was unknown, or was  not the person  accusted.  Such  a statement  might indeed be exculpatory of the person accused.   ‘Circumstances of the  transaction’s a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in  ‘circumstantial evidence’   which includes evidence of all relevant  facts.   It is on the other   hand narrower than ‘representations gestae’.  Circumstances  must have  some proximate relation  to the actual occurrence:   though,  as for  instance, in a case  of  prolonged poising they  may be related to  dates at a considerable distance from the date of the actual fatal dose.   It will  be observed that ‘the  circumstances’ are of the transaction which resulted  in the death of the declarant.   It is not necessary that there should be  a known  transaction other  than that  the death of the declarant has ultimately been caused, for  the condition  of the  admissibility of the evidence is that  ‘the cause of ( the declarant’s) death comes into  question’.”\n<\/p>\n
If the  rule laid down in the above decision is applied to the facts of the present case,  it will be  seen that  the  stabbing on 7-2-1959 is not proved to be  a “circumstance of the transaction” which  resulted in the death of the deceased.   To put it differently, it is  not proved that the injury sustained by the deceased on 7-2-1959 had in any manner contributed to the death of the deceased.   No connection, however  remotely it may be  we have to held that  Ex. 5 (b)  (the dying declaration)  is in admissible in law.   Hence,  it is not necessary to consider the value to be attached to that  declaration .\n<\/p>\n
 (7)  In the result, the  appeal is allowed and the accused acquitted.  His  bail bonds do stand cancelled.\n<\/p>\n
(8) AF\/V.S. B.\n<\/p>\n
(9) Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Karnataka High Court In Re: Mallappa Shivingappa … vs Unknown on 27 March, 1961 Equivalent citations: AIR 1962 Kant 82, AIR 1962 Mys 82 Author: Hedge Bench: K Hegde, M A Khan JUDGMENT Hedge, J. (1) An interesting question of law which does not appear to be covered by any decision of the supreme Court […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-35295","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"\nIn Re: Mallappa Shivingappa ... vs Unknown on 27 March, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/in-re-mallappa-shivingappa-vs-unknown-on-27-march-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"In Re: Mallappa Shivingappa ... vs Unknown on 27 March, 1961 - 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