King■v. AmolisPererci
was made in the course of the transaction which resulted in hisdeath is admissible in evidence under section 32 (1) if it relatedto any of the circumstances of that transaction. It is arguedeontra that the only statements which are admissible undersection 32 (1) are dying declarations; in short, that the law in Ceylonis in substance the same as the law in force in England, subject tothe following exceptions: —
That the person who made the statement need not necessarily
at the time when it.was made have been under expectationof death; and
That the statement is admissible whatever be the nature of
the proceeding in which the cause of death be called inquestion.
The statements, the reception in evidence of which are permittedby section 32 (1), are statements by a person who is dead “ as tothe cause of his death or of any of the circumstances of thetransaction which resulted in his death/' These words imply thatwhat is made admissible is not merely a bare statement limitedto the actual cause of death; they are intended to enable thereception in evidence of the statement made by a person who is-dead of all the circumstances under which he met with his death.This view of the section implies that the transaction which resultedin death should have occurred and been complete in all respects-save as to the dqath at the time the statement was made. In otherwords, it must be a statement made by a party who had receiveda mortal injury at a time subsequent to the injury narrating the■circumstances under which she received that injury. It has beensuggested that the words “ or as to any of the circumstanceswhich resulted in his death " mark a wide departure from theEnglish law relating to dying declarations, and are intended toadmit in evidence, not only statements made after the act whichresulted in death, but also statements made at any time priorthereto, so long as they are within the period covered by thetransaction. This submission is based upon the ruling in theIndian case of Shivabhai Becharbhai v. Emperor,1 which is theonly case the Deputy Solicitor-General has been able to cite insupport of his contention. Referring to the ruling of the HighCourt of Lahore, in which this section was interpreted, perhaps in.too restricted a sense, but generally on the lines suggested by me,the learned Judge who decided Shivabhai Becharbhai v. Emperor{supra) says: " If, as in English law, the clause is confined to the caseof statements made as to the cause of a person’s death, then I quiteagree that the above would be a ‘proper interpretation.*" Theassumption that in English law dying declarations are restricted
1 {1926) SO I. L. R. B0fn.~683.
( 487 )
to the cause of the death is purely erroneous. Indeed, Sir JamesFitz James Stephen in his Digest of the Law of Evidence (in Article26 of that work) states the English law to be as follows: —
“A declaration made by the declarant as to the cause of his deathor as to any of the circumstances of the transaction whichresulted in his death is deemed to be relevant
It is inconceivable that Sir James FitzJames Stephen, to whombelongs the credit of having drafted the Indian Evidence Act,could or would have used the very words in which he summarizesthe law of England on the point to mark a deliberate departurefrom the law of England on that very points
The words “ as to the cause of his death or as to any of thecircumstances which resulted in his death *’ are descriptive of thesubject-matter of the statement and set a limit to the matters-which may be referred to. in such a statement. They limit suchstatements to the cause and circumstances of the death of theperson making them.
The section read as a whole is in my opinion intended to admitin evidence a statement made by way of narrative after the eventwhich ultimately resulted in his death by the person the cause ofwhose death is in question. Subject to the differences alreadynoticed, there is on this point no difference between the Englishlaw and the law as declared in the Ceylon Evidence Ordinance.This is the view taken in the case of Autar Sing v. The Crown (supra)of the corresponding provisions of the Indian Evidence Act. Beforeleaving this aspect of the case, I would observe that in the com-mentary on section 30 (1) of the Indian Evidence Act, which isin all respects identical with section 32 of the local Ordinance*the section is treated as one which provides for the reception inevidence of dying declarations.
The learned Deputy Solicitor-General next contended that ifthe statement is not one which may be received in evidence undersection 32 it is admissible under section 6 or section 8. The formerof these two sections is a statement of the doctrine of res gestae.It is more restrictive, in that it does not include all that under theEnglish law is covered by that doctrine. In his work on The Lawof Evidence, section 583, Taylor says: ** Perhaps the best generalidea of what is meant by res gestae is that the expression includeseverything thai may be fairly considered an incident of the eventunder consideration/’ The rule as it is stated in section 6 makes“ facts which though not in issue are so connected with a factin issue as to form part of the same transaction ” relevant.Both declarations and acts would under this' rule be admissibleprovided they are so connected with the fact in issue as to formpart of the same transaction. I find it difficult to see how thestatement of Dingiri Menika can fairly be said to be so closely
Kingo. AmaliaPatera
( 488)
OjuiviN J.King
■vt AtnolisPetira
connected with the murder as to form an incident of that event.There is not that connection which exists between facts which arecontemporaneous, and it is conceivable that it had no actual con-nection with the circumstances which led to and culminated in themurder. It is impossible to say that it grew put of the main fact,as in the case of the cries of the victim of an assault; or that it isexplanatory of the nature of the transaction,, as in the case of thecries of a mob in a trial for riot. The determination of the questionwhether or not a particular fact forms part of the res gestae is oftenattended with considerable difficulty. Differences of opinion mustand do arise. But for my own part, I prefer in any doubtful case,especially when it relates to a statement of a person who is dead,to adopt the course of rejecting such evidence. In this case Iwould do so for the reason that in my opinion this statement maynot be given in evidence under section 6.
Nor do I think section 8 of the Ordinance authorizes its reception.The conduct of a person, an offence against whom is the subjectof any proceeding, is relevant “ if such conduct influences or isinfluenced by any fact in issue or relevant fact/’ It is only in•such cases that statements may be given in evidence provided thatthey accompany and explain acts. I am not satisfied that thereis anything to indicate that the fact in issue was influenced bythe conduct of the deceased which it is sought to explain by thisstatement.
If, as I think, this statement was wrongly received in evidence, itremains to be considered what order should be made in the caseIt is impossible to say how far the minds of the jury were influencedby this, statement, or that they should or would have brought in.the same verdict had this statement not been admitted. Underthese circumstances the proper course is to order a new trial. Theproceedings taken at the trial are quashed and a new trial ordered.The prisoner will be remanded to the custody of tbe Fiscal forthat purpose.
Maartensz A.J.—
• The prisoner in this case was charged with murdering a womannamed Dingiri Menika on June 30, 1926. He was tried beforeMr. Justice Schneider and an English-speaking jury and found-.guilty of murder by a majority of 6 to 1.
The Attorney-General is of opinion that a question of law whicharose at the trial of the above case ought to be further considered,and submits the same for determination under section 355 (3)of the Criminal ProcedurevCode.
The* facts stated by the Attorney-General are as follows: —“ Dingiri Menika was a widow, who lived with her brothers andsisters in a house inherited from her parents adjoining the Botanic
( 489 )
Gardens at Henaratgoda. She disappeared on the night of June jfff*30. When her disappearance was discovered at about 30 or maatohbb11 p.m. it was found that her clothing and jewellery, and alsocertain jewellery belonging to one of her sisters, were missing. Hercorpse was discovered at about 3.30 p.m. on the afternoon ofJuly 1 lying on a mat and pillow in a threshing floor abouthalf a mile from her house which at that time of the year was notmuch frequented.”
One of the witnesses for the prosecution was the deceasedwoman's daughter Jane.
In the Police Court Jane testified as follows: —
"Day before evening I was at home. My mother
too was in the house. I saw her bundling some clothes.
I asked her why she was doing that. She told me that shewas going to Bambukkana with the watcher. I started,crying. Then she gave me 50 cents and asked me to takehoppers in the morning and go to school
A.t the commencement of the trial Counsel for the accused objectedto the above evidence being led. The objection was over-ruled.,;and Jane gave the following evidence : —
Examined.—"…. One night I found my mother missing:.
On the morning of the day she disappeared, before-midday meals, she told me that she was going to*Bambukkana with the watcher. I cried after she saidthat as I felt sorry. I did not ask her, but she told methat of her own accord. When she said this she wassimply seated down inside the house doing nothing.
I was just seated down near my mother then. A littlewhile after she said this she bundled her clothes. I didnot want to go with her, but I cried as I felt sorry. I askedher not to go. She gave me 50 cents in 10- and 5-centpieces and asked me to buy hoppers in the morning andgo to school. She told me that she would return in four orfive days to see me …. ”
Cross-examined.—“…. She took the clothes from a
wooden box to which there was a lock and key. Thatwas my brother's box. I cannot remember whether she-took only clothes from that box. I was standing; close:by when she was taking them. I asked her why she wasbundling them, and she said that she was going to Bambuk-kana with the watcher. In the morning* too she told methat she was going to Bambukkana with the watcher.
She told me the same thing about two days before that,shortly after my midday meals …. ”
C 490 )
King& Amelia. Perera
Cross-examined.—“…. For the last time when she
told me that she was going to Eambnkkana she said thatshe was going there to open a boutique …. "
The question of law submitted for decision is whether the learnedJudge was right in permitting Jane to relate what Dingiri Menikahad told her on the afternoon of June BO.
Tbe accused was a watcher at the Henaratgoda Botanic Gardens,and the passage particularly objected to is Dingiri Menika*s state-ment that “ she was going to. Bambukkana with the watcher/'
Jane's evidence as to what Dingiri Menika told her was, I under-stand, admitted under section 32 (1) of the Evidence Ordinance,1895, as a statement made by a deceased person as to a circumstanceof the transaction which resulted in her death.
The contention for the accused is that a statement made bya person befpre the injury took place which resulted in his or herdeath was not such a statement as is contemplated by section 32(1) of the Evidence Ordinance.
In support of this contention accused's Counsel argued thatsection 32 (1) enacts the English Law of Evidence with regard todying declarations with certain modifications which do not alterthe principle of the English law that the statement must be onemade after the injury which resulted in death was sustained.
Section 32 (1) differs from the English law in various ways, butfor the purposes of the question at issue before us I need only considerone of them.
Under the law of England certain conditions are required to haveexisted at the time of declaration, namely, it is necessary that thedeclarant should have been in actual danger of death; that he shouldhave been aware of his danger and have abandoned allhope of recovery and that death should have ensued. Theseconditions make it as clear as possible that the statements renderedAdmissible as dying declarations must have been made afterthe injury which resulted in his death had been sustained by thedeclarant.
Under our law, however, such statements are relevant whether theperson who made them was or was not at the time when theywere made under expectation of death.
The argument contra based on this variation from the Englishlaw is that section 32 (1) is applicable to statements made antecedentto as well as to statements made after the injury whichcaused the death.
I am unable to adopt this argument.
Section 32 (1) of our Ordinance reproduces section 32 (1) of theIndian Evidence Act, 1872, and in the commentary to that sectionby Woodroffe and Ameer Ali it is stated at page 317 that ".-the state-ment must be as to the cause of the declarant's death or as
( 491 )
to any of the circumstances of the transaction which resulted inhis death/' that is, the cause and circumstances of the death andnot previous or subsequent transactions, such independent trans-actions being excluded as not falling within the principle of necessityon which such evidence is received. This view of the scope of thesection was followed in the case of Autar Singh v. The Crown (supra),where certain statements made by the deceased prior to the injuriesbeing inflicted on him were rejected on the ground that they werenot statements by a dying person as to the injuries inflicted on himor as to the circumstances in which those injuries came to beinflicted.
This decision was, it is true, dissented from in the case of Shiva-bhai Becharbhai v. Emperor (supra). The ratio decidendi in the lattercase was that the words “ as to any of the circumstances of thetransaction which resulted in his death was an enlargement of the-English Law of Evidence which is confined to the statements madeas to the cause of a person's death." This appears to be a mis-conception of the law of England, for Stephen in his Digest onThe Law of Evidence, lays down in Article 26 as follows: —
“ A declaration made by the declarant as ta the cause of his deathor as to any of the circumstances of the transaction whichresulted in his death is deemed to be relevant …
It is therefore less of an authority than the case decided by the.Higher Court of Lahore.
I am of opinion that section 32 (1) of the Evidence Ordinance-,is limited to statements made by a person after he had sustained^the injuries which caused his death and the circumstances in which,those injuries were inflicted.
1 accordingly hold that the statement under reference was not.admissible under section 32 (1) of the Evidence Ordinance.
It was also contended that the statement was admissible undereither section 6 or section 8 o«f the Evidence Ordinance.
Section 6 enacts that facts which though not in issue are soconnected with a fact in issue as to form part of the same .transaction-are relevant whether they occurred at the same time and place or atdifferent times and places.
Whether a particular fact is or is not part df the same transactionis a difficult question—the area of the events covered by the termres gestae depends on the circumstances of each case.
In this case, I. venture to think that the statement made byDingiri Menika to Jane—that she was going to Ttambukkana withthe watcher—does not form part of .the res gestae as there is anabsence ctf a series of events to connect the statement with thefact in issue—whether the prisoner caused the death of Dingiri;Menika.
Kingif, AmothPenm
( 492 )
©. Arnett*‘ 'iNw-ero
Section 8 enacts that any fact is relevant which shows orconstitutes a motive or preparation for any fact in issue.
Now, the statement made to Jane in no way establishes a motivefor murder, no does it indicate a preparation on the fact in issue.
I accordingly hold that the statement was not admissible Tindersection 6 or section 8 of the Evidence Ordinance.
I agree to the order proposed by my brother Garvin.:'XjYaxx Grant J.—I agree.