CASE COMMENT: AJODHI v. EMPEROR, 56 IC 582.

TABLE OF CONTENTS: TABLE OF CASES: Dal Bahadur Singh v, Bijal Bahadur Singh.........................................................................2 Dal Bahadur v. Bijai Bahadur...........................................................................................12 Higham v. Ridgway.............................................................................................................2 Janu v. R..............................................................................................................................4 K. Rukmini Bai and Ors. v. Venkateswara Silk House.....................................................10 King Emperor v.Bhut Nath Ghose......................................................................................7 Markhu Mahto v. Saharai Mahto.........................................................................................3 Mst. Ramrati Kuer v. Dwarika Prasad Singh and Ors.......................................................11 Ramnathan Chetty v. Murugappa Chetty............................................................................3 Savitri Devi v. Ram Ran Bijoy Prosad Singh......................................................................2 Shantidevi v. State.............................................................................................................10 Sita Ram Singh v.Khub Lal Singh......................................................................................2 State of Gujarat v. Mohammed Atik and others................................................................12 Taylor v. Witham.................................................................................................................3 Vandavasi Karthikeya alias Krishna Murthy v. S. Kamalamma.......................................11

1. INTRODUCTION: The present case of Ajodhi v. King Emperor is an important case as it lays down the law as to the admissibility of a statement made by a person who is not available to give evidence before a court of law. The case becomes important as it discusses section 32 (2) and 32(3) of the Indian Evidence Act. In the present case, the bone of contention was the admissibility of a statement made by a midwife to her paramour about a murder she has witnessed during her course of occupation. While the lower court admitted this statement under section 32(2) of the Indian Evidence Act as a statement made during the course of business. In the present case the court held that the statement was not admissible under section 32(2) since it was made in the ordinary course of gossip, but not in the ordinary course of business. Also the court made this statement admissible under Section 32(3) as the statement is one that exposes her to criminal prosecution. RESEARCH SCHEME AND METHODOLOGY: The scheme of this project would be a brief introduction or discussion of the relevant section of the evidence act i.e Section 32(3) of the Act. This would be followed by a case comment of the case. Subsequently there would be a conclusion which would include an analysis of the case. Also the researcher would look into the feasibility of an appeal and the possible outcome of one. The research done was doctrinaire in its approach. The research material used was secondary in nature. The material used is available in the NALSAR library and these mostly include the various commentaries on the Evidence Act. Also used was the online database of manupatra. The researcher has followed a uniform method of citation through out the project.

2. RELEVANT SECTION OF THE EVIDENCE ACT Where a statement is against the interest of the declarant, it becomes admissible in its entirety1 and also to every fact contained in it, i.e of all collateral facts contained in the statement. The statement is not only evidence against the person making the statement but against other persons mentioned to therein, provided such reference is not foreign to the statement made. In the case of Higham v. Ridgway, an entrance made by a deceased man to a mid-wife in his own books of payment of his charges for attending a confinement was treated as evidence of the date of childs birth, a fact that was merely collateral to the actual fact against interests, viz, the admission of the payment of charges. According to English law, the interest involved must be pecuniary or proprietary; no other, even though a penal kind, will suffice.2 Indian law is a departure from this rule. It admits the statement even if it would expose to the author to any criminal prosecution, or to a suit for damages. The Indian rule is more consistent with the principle on which hearsay is admitted.3 Where a witness is untraceable, or has disappeared, so that it is impossible to serve him, his former disposition may be properly admitted under this section. The principle on which such statement is regarded as admissible in evidence that, in the ordinary course of affairs, a person in not likely to make a statement to his own detriment, unless it is true.4 Self interest is a sufficient security against willful misstatement, mistake of fact, or want of information on the part of the declarant. The place of the test of oath and cross-examination is in some measure supplied by the circumstances of the declarant and character of the statement.5 Under this clause, statements by a deceased person are admissible provided 1. he had personal knowledge of the facts stated, 2. the facts were to his immediate prejudice, 3. he knew the facts to be prejudicial and
1 2

Sita Ram Singh v.Khub Lal Singh, 5 P 168: 94 IC 13. Phipson, EVIDENCE, 14th ed. , para30-60; Sussez Peerage Case, 11 C & F 108. 3 M.Monir, LAW OF EVIDENCE, Vol I, 14th ed. 2006, p. 755. Universal Law Publishing Co., Delhi. 4 Dal Bahadur Singh v, Bijal Bahadur Singh, 122 IC 8; Savitri Devi v. Ram Ran Bijoy Prosad Singh, 1950 PC 1. 5 Woodroffe, EVIDENCE, 9th ed. P. 324.

4. The interest affected by the statements was pecuniary or proprietary. The question whether the statement was made consciously with the knowledge that it was against the interest of the person making it would be a question of face in each case and would depend in most cases on the circumstances in which the statement was made. The statement must be to the immediate prejudice of the declarant.6 It must be prima facie against the declarants interest, that is to say, the natural meaning of the statement standing alone must be against the interest of the person who made it.7 If Prima facie against interest, it will not affect its admissibility, though it may its value, to prove by other evidence that it was really in favour of the declarant.8 Section 32, relating to the exposing to criminal prosecution, appears to depart from the law laid known in the Sussez Peerage case9, where in order to prove the marriage of the Duke of Sussex and Lady Augusta Murray, statements made by the clergyman, since deceased, who had married them at Rome, were tendered in evidence, on the ground that they were clearly against his interest, inasmuch as they related to an act which rendered him liable to prosecution while living or which, at least he believed to be illegal. But it may well be thought that a declaration by which a man makes himself liable to a criminal prosecution, or payment of damages, offers as good a guarantee for its truthfulness, as one simply against his proprietary or pecuniary interest. Illustration f is particularly pointed to this case; it illustrates the difference between the Sussex Peerage case and the present law. The words would have exposed him will no doubt be construed to mean would have exposed him at the time that statement was made. It could never have been intended that a statement made after the risks had passed away should be admitted merely because if it were made earlier it would have exposed him to criminal prosecution or suit for damages.

6 7

Ramnathan Chetty v. Murugappa Chetty, 33 IC 969. Taylor v. Witham, (1876) 3 Ch D 605; Ramnathan Chetty v. Murugappa Chetty, 33 IC 969; Markhu Mahto v. Saharai Mahto, 1940 P 16; where it has been remarked that where the fact that the declaration is against the declarants interest does not clearly appear from the statement itself, it is permissible to give independent evidence to supply this want. 8 Adams (in re.), (1922) P 240; Taylor v. Witham, (1876) 3 CH D 605. 9 11 Cl & F 113.

This view has been taken by the Calcutta High court and is generally adopted by modern authorities.10 Further, the person at that time must have had knowledge that he was exposing himself to a suit for damages.11 A confession to be admissible under Section 32(3) must have been made before criminal proceedings were started.12

10 11

Field, 6th ed. P. 136. Savithri v. Ramran, A 1950 PC 1. 12 Janu v. R.

3. CASE LAW 3.1 FACTS: Mt. Ajodhi aged 25 and her deceased younger brother, Pyare, aged 25, have been convicted of murder of their newly born illegitimate daughter on 16 th October 1918 at Rangir and were sentenced to transportation for life by the sessions judge. They were also found guilty under section 318 IPC of concealing the fact of the birth by secretly disposing of the body, but for this no punishment was given as this was merged with the greater offense. The prosecution case was that the baby was born alive but it was immediately killed and the body buried by Pyare and Ajodhi. The defense on the other hand is that the child was born dead and was buried at once by a midwife called Janki who attended at the time of confinement at which Pyare was not present. The body was found by the Sub Inspector on 26th October buried in a shed attached to the house where the appellants lived. The doctor could not say whether the child was born alive or dead. The medical opinion was however, to the effect that the child was practically a full term child. The only witness examined at the trial of the case to prove that the child was born alive is Mt. Saraswati, P W 2, the wife of the village kotwar. She states that she saw Janki, a mid wife go to the house of Ajodhi and that after she had been there an hour, she heard the cry of a new born infant. The witness followed Janki to her own house and questioned her, who denied that a child was born. Saraswati however never contradicted Janki by stating what she had heard and also never told anyone as to what she heard. It was only after the arrival of the police upon the scene that she came out with her story. Janki died before the inqury before the Magistrate, but a statement made and signed by her in the course of the police investigation was taken down by witness Jamna Prasad P W4 in the presence of the police inspector. This statement was considered as the first information by the police. Janki had also made a statement to her paramour Daolat, who was examined as PW 5 before the committing magistrate to depose to that statement. The defence admitted that Daolat has since disappeared and has become untraceable. 3.2 ISSUE: Whether the three statements of witnesses not examined in the sessions court are

admissible and have been properly proved. The three statements being, the statement made by Mrs. Saraswati, the statement made by Janki which was taken down by witness Jamna Prasad and finally the statement made by Janki to her paramour Daolat after the act has been committed. 3.3 JUDGMENT: The court dismissed the suggestion of the Standing Counsel that Daolats statement before the committing Magistrate could be treated as evidence under section 288 of Criminal Procedure Code. It held that the section has no application to the evidence of a witness not produced and examined in the court of Session. Under Section 33 Evidence Act, the evidence of Daolat before the committing Magistrate is relevant for proving the truth of the facts which it states, the witness being untraceable. The accused had the right to cross examine him, though in point of fact he was not cross examined. As the portion of the record containing the deposition of Daolat purporting to be signed by the committing magistrate was produced before the Court of Session, the statement has been sufficiently proved under Section 80, Evidence Act. The court discussed the section 33 of the evidence act. Section 33 however contemplates that the evidence given before the committing magistrate itself relevant evidence. So the question examined by the court was whether the statement made by Janki was relevant under section 33 of the Act. The statement made by janki was to the effect that "a female child was born, but accused Pyare pressed the childs throat and killed her; a sum of money of Rs 4 in cash and some grain had been given to Janki, who was enjoined by accused Pyare to keep the matter secret. The lower court thought that these statements were admissible under Section 32(2) as statements made in the ordinary course of business by a midwife. The court held that there is no resemblance between the case and illustration b to section 32 and leading case of Higham v. Ridgway 13. The court held that the statement made by a midwife to a paramour is in the ordinary course of gossip, not in the ordinary course of business as a midwife. It was not shown that it is the usual routine practice of a midwife to report births to the police. In fact, no report was made and none
13

[1808] 10 East 109=10 R.R. 235=103 E R 717.

of the statements was elicited till after the body was found. Hence the court concluded that Section 32(2) has no application in the present case. But the court opined that this statement is relevant under section 32(3) as the statement, if true, would have exposed Janki to criminal prosecution. According to the statement she witnessed a murder. Under section 44, Criminal Procedure Code, it was her duty to give information to the police or Magistrate. She did not report to the police for ten days, and hence is punishable under Section 202, of IPC for intentionally omitting to give information which she was legally bound to give and therefore Daolats deposition relating to the declaration made by Janki is therefore relevant. Section 162, Cr P C lays down that no statement made by any person to a police officer in the course of an investigation shall if taken down in writing signed by the person making it, nor shall such writing used as evidence, the only exception is in favour of dying declarations under section 32(1). Therefore, the witness record made by the police cannot be used as evidence. But that section does not preclude evidence being given of a statement, recorded in writing, provided it is otherwise relevant. The operation of the section however cannot be evaded by the police choosing to record as the first information a statement obtained after the investigation had commenced.14 Therefore this statement taken by Jamna Prashad was made in the course of police investigation and hence cannot be used due to Section 162 of Cr PC. But the court opined that though the writing cannot be used as evidence, there is nothing to prevent the witnesses who have heard the statement deposing to the facts contained in the writing, after refreshing their memory under Section 159, Evidence Act. So the court opined that both Jamna Prashad and the police officer in whose presence the deposition of Janki was taken should have given oral evidence after refreshing his memory by looking at Ex p 1 and the case diary in which it was recorded. Therefore the court held all the statements to be relevant. Then the court went into the discussion as to the weight to be attached to the evidence. First they had the statement of Janki, who accepted taking a small bribe to hush up a murder, and who was not cross examined. Her paramour also agrees taking an additional bribe of Rs 10. Also he was not cross examined since the accused did not have an advocate in the Magistrate Court.
14

King Emperor v.Bhut Nath Ghose [1903] 7 CWN 345.

The court went into the propriety of the Sessions Court judgment. Accepting that the sessions judge has accepted Jankis declaration only to the extent that the child was born alive. But the court did not accept the Session Courts logic that it was for the accused to explain how the live child came to die and thereby concluding that since there was no adequate explanation, they must be held to cause its death. The Court disagreed with this explanation and held that it is the duty of the prosecution to both prove that the baby was born alive and that the baby was murdered by the accused. Further the evidence looked into by the Lower court, was not considered as the sufficient proof for murder. The conduct of the accused is not inconsistent with their innocence on the charge of murder, if there has been a disposal of the body to avoid giving greater publicity to a scandal. Also the fact that a mid wife was called might show that murder was not intended when the mid wife was invited. Also the court felt that the argument of the prosecution that there would have been no murder of an illegitimate male child was far fetched. The burial inside the shed is a secret disposal of the body with intent to conceal the birth. Therefore an offence under Section 318 had been committed. So the court looked into the matter as to whether appellant was guilty under that section. Jankis statement was not merely relevant as to the murder but also to the disposal of the body. The court held that both the facts were connected together as part of the same of the same transaction and upon the principle laid down in Higham v. Ridgway15, the whole of the statement will be relevant. The court thought it could not rely on jankis statement that there was any abetment or conspiracy between the male and the female appellant. And therefore it acquitted Mt. Ajodhi of the charge under Section 318. Since the male appellant could not prove his alibi, and with reference to the evidence given by Janki, it could be proved that it was the male appellant, Pyare, who buried the body. Hence the court upheld the judgment of the lower court and convicted Pyare under Section 318. Therefore Ajodhi was acquitted on both the counts, murder and under Section 318, IPC. But Pyare is acquitted of the charge of murder, but was convicted under S. 318 and was sentenced to two years rigorous imprisonment.

15

[1808] 10 East 109=10 R.R. 235=103 E R 717.

4. CONCLUSION: Section 32: Under this Section a statement of a dead person can be admitted in evidence when it is against the pecuniary or proprietary interest of the person making. It is based on the principle that in the ordinary course of affairs a person is not likely to male a statement to host own detriment unless it is true. There have been many cases in which section 32(2) and section 32(3), both of which were discussed in the present case were in question. There have been many cases under the section 32(3). They have not expressly followed the case of Ajodhi v. Emperor, but are the recent case law on both 32(2) and 32(3) of the Indian Evidence Act. 1. K. Rukmini Bai and Ors. v. Venkateswara Silk House: AIR1972Kant143 In the case certain documents were relied upon to show that the building was ready for occupation and these were challenged as inadmissible as evidence. It was submitted by the respondents that the counterfoils are not admissible in evidence under section 32 of the act. The court held that the section 32(2) of the Indian evidence act the memorandum made in the ordinary course of business is admissible in evidence. Therefore it was held admissible. 2 Shantidevi v. State, ILR1979Delhi183. The case came up as an appeal filed by the appellant against her conviction under Section 302 of the India Penal Code and sentence of life imprisonment for having murdered her daughter-in-law by sprinkling kerosene on her and setting fire with a match-stick. The Additional Sessions Jude held the appellant guilty on the basis of the dying declaration (Ex. PW 1/A) recorded by Inspector Chander Singh on the day following the incident of burning. The conviction was assailed on grounds, inter alia, that the dying declaration was unworthy of being relied upon. Therefore this case goes into a discussion of Section 32(1) and section 32(2) of the Indian Evidence Act. The history recorded in the medico-legal certificate by the doctor is statement of a dead person as to the cause of death and, therefore, Clause (1) of Section 32 of the Indian Evidence Act, 1872 is attracted. furthermore, this history is a statement is writing made

by the doctor in the ordinary course of business and in the discharge of professional duty and inasmuch as there is undisputed evidence on the record that the doctor could not be found or his attendance could not be procured without such delay or expense as under the circumstances of the case was unreasonable, Clause (2) of Section 32 of the Indian Evidence Act is also attracted and makes the entry a relevant piece of evidence. The history of the patient mentioned in Mentioned in Medico-legal Certificate which is recorded by the doctor normally after enquiry from the patient, can be treated as a dying declaration. This declaration is of immense value for evaluating the dying declaration recorded by the Sub-Inspector on the following day and still another declaration which was recorded by the Sub-Divisional magistrate as it was made at the earliest opportunity and chances for tampering at the hands of interested persons stand completely eliminated. 3. Mst. Ramrati Kuer v. Dwarika Prasad Singh and Ors. AIR1967SC1134: The case debated on whether the deponent's statement could be admitted in the mortgage suit of the property and whether the statement made by the donor in the deed of gift could be admitted to contradict her statement given in the mortgage deed It was held that the statement made against the proprietary interest of the mother in the mortgage suit could be admitted in evidence under Section 32(3) of the Evidence Act (1 of 1872) Further, the statement made in the mortgage suit was more important than the statement given in the gift deed, as the first statement was made when there was no dispute in the family. One of the questions raised is that the statement cannot be made admissible since they were not made with the knowledge that they are against her interest. But it was allowed since the court believed that there was no possibility that she would not have known the implications of her statement. 4. Vandavasi Karthikeya alias Krishna Murthy v. S. Kamalamma AIR1994AP102. This was a case under section 11 of the Hindu Adoption and Maintenance Act, 1956 where the validity of adoption was challenged. Though the witness of the natural mother could not be taken since she refused to come to the court of law, the witness of other respectable members belonging to different castes was taken and it was proved that the adoption is a valid one. The court discussed the case of Dal Bahadur v. Bijai Bahadur16, which was also a case of adoption by a widow. The court discussed the case
16

AIR 1930 PC 79

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in the light of section 32 (3) since the Privy Council refused to give any evidentiary value to the disposition of the widow that she adopted the person since it was very much in her interest to accept it. (is manifestly wanting in the case of a Hindu widow.) 5. State of Gujarat v. Mohammed Atik and others, AIR1998SC1686 The main question in the present case was whether confessional statement recorded from accused during investigation of another crime can be admissible as evidence for offences under trial. The court held that when confession is usable under section 15 of the Evidence Act, it cannot be made unusable merely because the crime is different. When confession covers different crime it would be relevant item of evidence in case in which crime is under trial and it would be admissible. The confessionary statement was alleged by the respondent is admissible since it is against the proprietary interests of the maker and exposes him to criminal prosecution (Section 32(3)). But the court could not accept this principle since what was said would not have amounted to prosecution under section 15(1) of the TADA Act. Also it is not relevant under section 10 of the evidence act since it was not in relation to a criminal conspiracy. ANALYSIS AND CONCLUSION: The confession of an accused person implicating himself and an accomplice in a crime and who is since dead, is admissible under this clause and is not excluded by illustration b to section 30. The three statements whose admissibility is questioned in the present case were all held to be admissible. According to the researcher the court was right in holding them to be admissible while at the same time refusing to look into the statement written down by Jamna Prasad since it was a statement made to the police after the commencement of investigation. Also the researcher agrees with the logic of the court in admitting the statement of Janki to her paramour under section 32(3) and not under section 32(2). The researcher accepts with the judgment of the court in the present case. Also the court was right in stating that though the records cannot be brought to the court, the they could have been admissible as statements made to them and would have been relevant, since the statements are in themselves relevant. Though an appeal is feasible it would not yield any different result. Also the court

11

was right in holding that it was the duty of the prosecution to establish that the murder was committed by the accused, and that it is not sufficient to merely prove that the baby was born alive. Therefore unless additional evidence is brought in which proves beyond reasonable doubt that act was committed by the accused, a different ruling is not possible or correct. Therefore the researcher agrees with the judgment of the court and an appeal would not yield a different ruling.

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BIBLIOGRAPHY: Vepa P Sarathi, LAW OF EVIDENCE, 6th ed. 2006, Eastern Book Company, Lucknow. Sarkar, EVIDENCE, Vol I, 15th ed. (Rep.) 2004, Wadhwa Publishers, Nagpur. Monir, LAW OF EVIDENCE, Vol. I, 14th ed. 2006, Universal Publishers, New Delhi. Batuk Lal, LAW OF EVIDENCE, 5th ed. 2004, orient Publishers, Allahabad.

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