322(2RATIAEN J.—Ti>.- King r, A^rv.olan 'a-lnr
(Court of Criminal Appeal]
1950 Present; Gratiaen J. (President), Gunasekara J. and Swan J.THE KING t. ASIRVAPAN NABAll
Apjjuai/ioi) <•</ 1U50
S, C. 22—M. C. Kanadnlla, 2,M2
Court of Criminal Appeal—Evidence Ordinance. Section 32 (/)—Dying deposition ”
—Duty of Court to caution •/"/•</—Requirement of corroborative evidence—
Manner of recording dying deposition—Criminal Procedure. Code, Section 298
Where, in a trial fur murder, the “ 'lying deposition ” of the deceased whsled in evidence against the accused under section 32 (1) of the EvidenceOrdinance—
Held* that it wab imperative that the* Jury should have been adequatelycautioned that, when considering tho weight to bo attached to the statementscontained in tho dying deposition, they should appreciate that tho statementsof the deponent had not been tested by cross-examination.
Held further, (i) that tho attention of the Jury should have been spociflcallydrawn to the question how far tho othor fact3 and surrounding circumstancesproved in ovidonc© might be said to support the truth or otherwise of thedeposition-
(ii) that whonever Magistrates uro called upon to record “ dying depositions ”in accordance with the procedure laid down in Chapter 23 of the CriminalProcedure Code they should record the doponont’s statements in the word*which he actually employs (or. when this is net practicable, in an accuratetranslation of those actual words). Whonever questions are put to thedeponent for purposes of elucidation, the form of the question os well as ofthe answer should bo precisely recorded.
^^^PPLICATION for leave to appeal ugainst a conviction in a trialbefore u Judge nnd Jury.
J/. M. Knmartt.knlasxn'jhoni. for accused appellant.
.J. ('. AUr.e, Crown Counsel, for the Attorney.General.
Cur, fidv. lull.
May!), i960. Gkatiakn J.–
This is an appeal against a conviction Cor the murder of a man namedThangaaami Nadar, alleged to have been committed at Uduwela inthe early hours of the morning of October 2, 1949.
GRATIAEN J.—The King v. A*inxuUt>t MoJor323
TV oase for the Crown was that Thangasami Nadar had occasion onthe previous day to find fault with the accused, who was his employee ;and that at approximately 5 a.m. on October 2 the accused stabbedThangasami Nadar while the latter was asloep in the wadia " in whichthey, and certain other employees of Thangasami Nadar, resided. Ablood-stained knife, alleged to belong to the accused, was shortly after-wards discovered under the deceased’s bed. The m.m was taken to theGovernment Hospital at Kuliyapitiya for moJicul attention. As hiscondition was serious, the Magistrate was sent for and a “ dying depo-sition ” was recorded by him at 8.f>5 a m. Thniigasami Nadar died at4.20 pan. on tho same day.
The prosecution called as witnesses at the trial the other inmates ofthe wadia None of them gave direct evidence of the stabbing, butthere can be no question that their evidence, if true, did tend to implicatethe accused. The learned Judge did not, however, invite the Jury toconsider whether the cumulative effect of this circumstantial evidencewas by itself sufficient to establish the guilt of tho accused on the chargeof murder. We cannot therefore with propriety accede to learnedCrown Counsel’s submission that the conviction should in any event beupheld on the weight of this evidence alone. .Vs to the extent, if any,to which the Jury believed tho witnesses concerned, it is impossible tospeculate.
Apart from the evidence of these witnesses, the prosecution stronglyrelied on Thangasami Nadar’s “ dying deposition ” which was recordedby the Magistrate at 3.55 a.m. on October 2, 1949. The entirety ofthis document—marked P9—was read in evidence at the trial withoutobjection by the defence.
Such portions of the deposition P9 as are “ statements made by(Thangas.xmy Nadar) as to the cause of his death or as to any of the• circumstances which resulted in his death ” constitute admissible evidenceon which the pros cution was entitled to roly under the provisions ofsection 32 (l) of the Evidence Ordinance. Learned Crown Counselconcedes that at h ast some statements which appear in the depositionare not admissible under this section. Wo do not think it desirablethat wo should at this stage give a final ruling as to which portions of thedeposition are, upon a proper application of this section, admissible andwhich portions should have been ruled out. That question must bedecided, after due consideration, by the presiding Judge at the freshtrial which we propose to order in this case. For the purposes of thepresent appeal wo shall assume—although we do not hold—that thoentire document had been properly admitted in evidence.
The .main ground on which the accused’s conviction has been attackedis that, in leaving it to the Jury to consider whether they could accept astrue tho stat- ments in the dying deposition P9 which incriminated theacoused, the learned Judge omitted to give them adequate directions fortheir guidance in deciding what degree of reliance they could place uponthose statements. It was submitted that in the circumstances of thepresent case this non-direction amounted to a misdirection whioh vitiateshe conviotion. In our opinion the objection is a substantial one.
32-1ORATIAEN J,—Th*. King «•. Anirradan Nadar
Ar the evidence* was presented to the Jury at the trial, the statementscontained in the dying deposition P9 formed to a very large extent thefoundation of the case against the accused, and it was in our opinionimperative that they should have been adequately cautioned that, whenconsidering the weight to bo attached to this evidence, thoy shouldappreciate that the statements of the deponeut had not been tested bycross-examination. It has been pointed out in this connection inTaylor on Evidence. (12th Ed. para 722) that it should always be recollectedthat tho power of cross-examination is “ a power quite as essential to theeliciting of tho truth as the obligation of an oath can be In Waughv. the King 1 the Privy Council quashed a conviction in a case where thepresiding Judge had fallen into ‘‘ the serious error of not pointing outto the Jury that a statement made in a dying deposition had not beenliable to cross-examination
Admittedly there is no rule, of law under which evidence which isadmissible under section 32 (1) may not be acted upon unless it iscorroborated by independent testimony, but the Jury should always becautioned as to the inherent weakness of this form of hearsay evidence.In Arumvga Tevan v. Emperor2 Jackson J. held that when a man whois dead has left a statement throwing light upon the cause of his death,that statement is relevant evidence under section 32 (of the IndianAct) but it is not entitled to any peculiar credit …. It is in-cumbent upon the Court before it accepts the statement as true to seehow far it is corroborated A similar view was taken in Bullu Singhv. Emperor3. Moreover, the attention of the Jury ought specificallyto bo drawn to the question of how far the other facts and surroundingcircumstances proved in evidence might be said to support tho truth orotherwise of the deposition ”. Saski Ranta De v. King Emperor *.It is important to remember that in this country, unlike in England,statements, untested by7 cross-examination, which are made by a deceasedperson as to the cause of his dcAth or as to the circumstances whichresulted in it are admissible in evidence whether or not they were made inexpectation of death—i.e., at a time “ when every motive to falsehood issilenced, and the mind is induced by the most powerful considerations tospeak the truth ”—R. v. Woodcock 5. Under our Evidence Ordinancethe sense of impending death which is believed to provide’’ a situationso solemn as to create a special guarantee of veracity ” is not insistedupon ; and yet another safeguard which generally assists jurors to assessin the light of cross-examination, tho testimony of witnesses whom theyhave had the advantage of seeing and hearing for themselves, is alsoabsent. It is therefore prudent, and indeed essential, that these mini-mising factors should be prominently placed before the Jury by thepresiding Judge (vide in this connection King Emperor v. PremandandaDutt6). In the present case, this necessary caution was not administered.Moreover, we find from the record that when the Jury retired to considertheir verdict, they returned to the Court within three minutes with a
1 The Weekly Note* 31.5.50 page 17,1.
A. /. /?. 19S1 Mad. ISO.
A. I. R. 1929 Patna 249.
* (1930) 32 Cr. L. J. of India 324,s I6S ft'. R. 362.
*(1925) 26 Cr. h. J. of India I2S6.
GRA'L'IAKN J.—The. King v. Asirvadon- Nadar
unanimous verdict against the accused on a capital charge. We cannotbelieve that in the present case this was a sufficient interval of timewithin which a Jury could have properly decided the difficult questionswhich they were either invited to consider or which, in our judgment,they should have been invited to consider. We. therefore quash theconviction and order that the accused be tried on the indictment framedagainst him in fresh proceedings.
Thcro is one further matter to which we wish to refer. Tn the courseof his charge to the Jury, the learned Judge suggested that some at leastof the statements in the “ dying deposition “had been made in answerto questions which bad been put to Thangasami Nadar by the recordingMagistrate. Upon an examination of the deposition P9, this seems to usto be not improbable, although there is no specific evidence on the point.If this be correct, it is regrettable that there is no record of any precisequestions in reply to which the deponent gave certain answers. LordCave (then Mr. Justice Cave) pointed out in R. v. Mitchell1 that“ a declaration should be taken down in the exact words which theperson who makes it uses, in order that it may bo possible, from thosewords, to arrive precisely at what the person making the declarationmeant. When a statement is not the ipsissima verba of the personmaking it, but is composed of a mixture of questions and answers, thereare several objections open to its reception in evidence which it is desirableshould not be open in cases which tho accused person has no opportunityof cross-examination. In the first- place, the questions may he leadingquestions, and in the condition of a person making a dying declarationthere is always very great danger of leading questions being answeredwithout their force and effect being fully comprehended. In such casestlie form of the declaration should be such that it would be possible to seewhat was the question and what was the answer, so as to discover how muchwas suggested by the examining Magistrate, and how much icas the productionof the person making the statement ”. For these reasons we think thatwhenover magistrates are called upon to record “ dying depositions ” inaccordance with the procedure laid down in Chapter 23 of the CriminalProceduro Code, they should record a deponent’s statements in the wordswhich lie actually employs (or, when this is not practicable, in an accuratetranslation of those actual words), The method of recording ovidence“ in the form of a narrative ”, though sanctioned in ordinary cases bysection 298 (2) of the Code seems to be inappropriate to tho special caseof a “ dying deposition ”. Whenever, as is sometimes necessary,questions are put to the deponent for purposes of elucidation, the formof the questions as well as of the answer should be precisely recorded.Where this procedure has not been adopted in any particular case, theweight which a Jury would be entitled to attach to the statements madeby a deceased person as to the circumstances of a transaction whichresulted in his death must necessarily be greatly minimised.
Fresh trial ordered.
(1392) 17 Cox 502.
THE KING v. ASIRVADAN NADAR