P L D 1973 Supreme Court 609 (PLP)

Another statement of the deceased under section 161, Cr. P. C. was recorded by the Police Officer at abut 4 p.m. on the 6th December 1969 after obtaining permission from the doctor, who, it is said, informed him that there was apprehension of death of the injured. The petitioner was charged as the assailant in this also. The deceased actually succumbed to his injuries on the 11th of December 1969 and then the case was converted to one under section 302, P. P. C. Both the F. I. R. and the statement recorded at the Hospital were treated as dying declarations and since they and the ocular testimony of as many as three eye‑witnesses examined by the prosecution implicated the petitioner alone as the assailant of the deceased, he was convicted and sentenced as aforesaid. The petitioner now seeks special leave to appeal. The learned counsel appearing on his behalf has frankly conceded that it is difficult for him to contend that the evidence in the case has not been properly and fairly appreciated or that any principle regarding the appreciation of evidence had been dis regarded. The incident, as already stated, took place in broad day light, in a public place, outside a Cafe and the petitioner atone was charged with having caused the injuries to the deceased which ultimately proved fatal. He was identified by a number of independent eye‑witnesses at the assailant. Unfortunately, the High Court treated the dying declarations as the main piece of evidence and the oral testimony as merely evidence corroborating the dying declarations. The learned counsel, therefore, bas sought to challenge the admissibility of the dying declarations on the novel ground that a dying declaration cannot legally be admitted in evidence to prove a fact in issue. The learned counsel contends that since the Evidence Act itself has distinguished a 'fact in Issue' from a 'relevant fact' by defining them separately and treating them in contradistinction with each other they form distinct and different categories of evidence. Furthermore since section 32 of the Evidence Act makes secondary evidence admissible only in respect of 'relevant facts' made by a person who is dead a 'fact 1n issue' cannot be proved by such secondary evidence. In support of this contention, strong reliance has been placed on an observation in an old decision of a Division Bench of the Bombay High Court in the case of Pa'tel Vandra'ven Jekisan and another v. Patel Manilal Chunilal I L R 15 Bom,

565. This was an appeal arising out of a suit for setting aside an adoption of a minor by a Hindu widow. The fact in issue in that case was as to whether there had been a valid adoption. On this question, the Subordinate Judge had admitted into evidence a statement signed by several hundred witnesses, to the effect that a widow of the Kadwa Kunbi caste could not adopt without the express authority of her husband, under the provisions of clause (4) of section 32 of the Evidence Act, because, it would have been very inconvenient to call so many witnesses. Sargent, C. J. without assigning any reason held that the said "section is not applicable to a case like the present where the evidence was required to prove a fact in issue and not merely a relevant fact." It is unfortunate that such a general observation was incorporated in the judgment without clarifying whether it applied to the statement admitted in the case or to a statement of a dead person. There is nothing in the judgment to show whether the attendance of the signatories of the statement could not be procured without an amount of delay or expense, which, under the circumstances of the said case, would have been unreasonable. The statement could have been disallowed on this ground alone for mere inconvenience due to the largeness of the number of witnesses is not a sufficient ground under this clause. The inconvenience and expense to be taken into account must be with respect to each individual witness and not one arising merely from the number of witnesses to be called. The weight of this ruling, however, has now been to a great extent impaired by a decision of the Privy Council in the case of Mst. Biro v. Atma Ram and others I L R 64 I A

92. This again was a suit brought by certain reversioners of a Hindu deceased to challenge the validity of certain gifts made by his widow. The question arose as to whether a statement made by a deceased person in regard to a pedigree table sowing the relationship of the parties was admissible to prove that the plaintiffs who had brought the suit were in fact the collaterals of the deceased. The Privy Council observed that the language of clause (5) of section 32 "embraces every statement as to relationship made ante litem motam by a person who had special means of knowledge of it, and it is immaterial whether it was made in a judicial proceeding or otherwise. It is clear that for an extra‑judicial statement there can be no issue with reference to which the question of relevancy may be determined. Neither the language of the statute, nor any principle of law, can be invoked to sustain the contention raised by the appellant". The fallacy in the argument of the learned counsel lies in this that he considers the separate definition of a "fact in issue" as if operating in exclusion from the definition of a "relevant fact". This however, is not correct. The two definitions are nod mutually exclusive. A 'fact in Issue' is a relevant fact to be asserted or denied in answer, A 'fact in issue' is not a separate category of evidence. The first illustration under this definition shows that in a case in which A is accused of the murder of B, A the question as to whether A caused B's death is a fact In Issue, but to say that it is riot a relevant fact would amount to saying that a fact In. issue is not a relevant fact. This can hardly be correct. It seems to us that the scheme of the Evidence Act is to permit, under the provisions of Chapter II of the said Act, evidence to be given in a suit or proceeding of the existence or non‑existence of every fact in issue and such other facts as are held to be relevant. The relevant facts, therefore, constitute a wider category of facts from which are derived facts in issue which are of a special category. Indeed, a reference to the illustrations given under section 32 itself would show that they are not confined only to relevant facts. This itself indicates that the Legislature did not intend to exclude the admissibility of secondary evidence in respect of facts in issue. The facts are either relevant or irrelevant. Facts in Issue are facts about which there is a question in issue and although all relevant facts are not necessarily facts in issue, the facts that are in issue cannot be other than relevant. To read the provi sions of section 32 in any other manner would lead to disasterous results. We can, therefore, see no reason for excluding from the operation of section 32 statements relating to facts in issue. The Bombay decision was dissented from, and in our view rightly by another Division Bench of the Madras High Court in the case of Raghubushana Tirthaswami v. Vidiavaridhi Tirtha-swami (1916) 34 I C

875. In this case too the learned Judges rightly pointed out that "although all relevant facts are not necessarily facts in issue, the facts that are in issue cannot be other than relevant". If they have to be excluded much valuable evidence would become unavailable as will be apparent from the illustrations given under section 32 itself. A learned Single Judge of the Bombay High Court itself in a more recent case of Jadayakumar Liladhar Mainthia v. Pushpabai Mainthlanee A I R 1944 Bom. 29 also took the view that the value of the earlier Bombay decision had been impaired to a very great extent by the decision of the Privy Council In the case of Mst. Biro, earlier referred to, even though not expressly overruled. In the latter case, though the learned Single Judge could not over-rule the earlier Division Bench decision yet he cast a serious doubt on the correctness of the observations of Sargent, C. J. and managed to by‑pass them. It seems to us that the learned Chief Justice went too far in making the general observations quoted earlier without consider ing the provisions of the other sections of the Evidence Act. We find it difficult to exclude facts in issue from the category of relevant facts, particularly, having regard to the provisions of sections 6 to 15 of the Evidence Act. We cannot, therefore, accept the contention of the learned counsel. Since this is the only point urged in support of this petition and we have found no substance in it, this petition is dis missed. K. B. A. Petition dismissed.