Holding

The Court held that the deceased's statement under Section 161 CrPC was not admissible under Section 32 of the Evidence Act and that the circumstantial evidence did not establish a complete chain of guilt, leading to the setting aside of the conviction.

Summary

Vinay D. Nagar was convicted for the murder of Kalu, a chowkidar who had been a prime witness in an abduction case against Nagar. The prosecution relied on circumstantial evidence and on Kalu's statement recorded under Section 161 of the CrPC to establish motive. The Supreme Court examined whether that statement could be admitted under Section 32 of the Evidence Act despite the bar of Section 162 CrPC, and whether the circumstantial evidence formed a complete, unbroken chain pointing to Nagar's guilt. The Court held that the 161 statement did not relate to the cause or circumstances of Kalu's death and therefore was not admissible under Section 32, and that the prosecution failed to prove a conclusive chain of circumstantial evidence. Consequently, the conviction was set aside and the appeal allowed.

Issues considered

Whether a statement made to police under Section 161 CrPC in an investigation of a different offence is admissible in a murder trial under Section 32 of the Evidence Act despite the bar of Section 162 CrPC.
Whether the circumstantial evidence presented by the prosecution satisfies the tests for a complete chain of evidence sufficient to convict beyond reasonable doubt.
Whether the motive inferred from the deceased's statement can be relied upon when the statement is inadmissible.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 162, s. 164, s. 313
Indian Evidence Act, 1872s. 145, s. 27, s. 32
Indian Penal Code, 1860s. 201, s. 302, s. 364, s. 450

Subjects

circumstantial evidenceSection 161 CrPCSection 162 CrPCSection 32 Evidence Actadmissibility of statementsmurder convictionchain of evidenceprime witnesshomicide

Judgment

[2008] 3 S.C.R. 735

'f
#' VINAY D. NAGAR A
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 210 of 2007)
MARCH 3, 2008 .
B
[P.P. NAOLEKAR & LOKESHWAR SINGH PANTA, JJ.]

)(, .
Penal Code, 1860 - ss. 364, 450, 302 and 201 -
Deceased missing under suspicious circumstances - Later
a
his dead body found .:.. He was prime witness in a criminal c
case against the accused - He had given his statement u/s
161 Cr.PC. and was to make a statement uls 164 Cr.PC. in
that case - Conviction by courts below on the basis of
circumstantial evidence - On appeal, held: Conviction not
correct - Prosecution. failed to prove the chain of evidence
D
which would lead to unequivocal conclusion of pointing to the
·:t guilt of the accused ...;. The 161 Cr.PC. statement of the
deceased though not barred uls 162 Cr.PC., but was not
admissible u/s 32 (1) of Evidence Act- Hence could not have
be relied upon- Code of Criminal Procedure, 1973 - ss. 161
and 162 - Evidence Act, 1872 - s. 32 (1) - Evidence - E
Circumstantial evidence.
Appellant-accused was prosecuted for having killed
a person. The deceased was found missing under
..)\
suspicious circumstances. After commencement of F
investigation, the dead body of the deceased was found.
The circumstances relied on by the prosecution, against
the accused was that the deceased was a prime witness
in an abduction case against the appellant; that he had
made 161 Cr.P.C. statement and was to make a statement G
u/s 164 Cr.P.C. before the court in respect of that case;
that the conduct of the accused was suspicious as he

.. was absent from duty without taking leave during relevant
time and during that period, he stayed in hotel(s) at
735 H

•I'
736 SUPREME COURT REPORTS [2008] 3 S.C.R.

1' ...
A Ahmedabad under fictitious name(s), while in his ,
statement u/s 313 Cr.P.C. he stated that he was at Bombay '

during that time; that there was a possibility of the
.
accused to reach the place of incident from Ahmedabad.
Trial Court convicted the accused u/ss. 364, 450, 302
B and 201 IPC. High Court confirmed the order of the trial
court.
Allowing the appeal, the Court ,l

HELD: 1.1 Where the evidence is of a circumstantial
c nature, circumstances from which the conclusion of guilt
is to be drawn should in the first instance be fully
established, and the facts, so established, should be
consistent only with the hypothesis of the guilt of the
accused. The circumstances should be of a conclusive
nature and they should be such as to exclude hypothesis
D
other than the one proposed to be proved. There must be
\..
chain of evidence so complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show
that within all human probability, the act must have been
E done by the accused. [Para 5] [741-F, G; 742-A]

C. Chenga Reddy and Ors. v. State of Andhra Pradesh
AIR 1996 SC 3390; Padala Veera Reddy v. State of Andhra
Pradesh and Ors. 1989 (Supp) 2 sec 706 - relied on. J
~r

F 1.2 The witnesses examined by the prosecution have
proved the fact that the accused stayed at some of the
hotels in Ahmedabad, but there is no proof of the fact that
he checked in the hotel(s) giving the fictitious name. There
is no proof of the accused being last seen with the
G deceased. The prosecution has failed to prove the
accused's presence on the date of the incident at the place
of the incident. The evidence adduced by the prosecution
does not point to the guilt of the accused. The
circumstances on which the High Court has placed
H reliance do not establish the guilt of the accused, nor does

1
VINAY D. NAGAR v. STATE OF RAJASTHAN 737

,.)'"
~
it exclude every hypothesis but the one proposed to be A
proved by the prosecution. The prosecution has failed to
prove the chain of evidence by which one could clearly
and unequivocally reach to the conclusion of pointing the
guilt of the accused-appellant for commission of the crime.
[Para 16] [751-A, B, C, D] B
2.1 Bar of Section 162 Cr.P.C. of proving the statement

"·"'
recorded by the police officer of any person during
investigation however shall not apply to any statement
falling within the provision of clause (1) of Section 32 of
the Evidence Act, nor it shall affect Section 27 of the c
Evidence Act. Bar of Section 162 Cr.P.C. is in regard to
the admissibility of the statement recorded of a person
by the police officer under Section 161 Cr.P.C. and by
virtue of Section 162 Cr.P.C. would be applicable only
where such statement is sought to be used at any inquiry D
• :!- or trial in respect of any offence under investigation at
the time when such statement was made. If the statement
made before a police officer in the course of an
investigation under Chapter XII is sought to be used in
any proceeding, inquiry or trial in respect of an offence E
other than which was under investigation at the time when
such statement was made, the bar of Section 162 will not
be attracted. [Paras 9 and 10] (744-G; 745-A, B]
'~ Khatri and Ors. v: State of Bihar and Ors. AIR 1981 SC
1068 - relied on. F

2.2 The statement of the deceased u/s 161 Cr.P.C. was
not in regard to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his
death. The statement is in regard to the accused's
G
involvement in the abduction of a boy and has no remote
connection or reference to the death of the deceased and
~·
thus would not be admissible under Section 32 of the
Evidence Act. The statement recorded by the police
although could be proved as there would not be any bar
H
738 SUPREME COURT REPORTS [2008] 3 S.C.R.

1 ...
A under Section 162 Cr.P.C. for proof of such statement, ,._
but it would not be admissible under Section 32 of the
Evidence Act, and. thus it could not have been relied
upon by the prosecution to prove the motive for
commission of the crime by the accused appellant.
B [Para 15] [750-E, F, G]

Paka/a Narayana Swami v. Emperor AIR 1939 PC 47;
Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984
SC 1622; Rattan Singh v. State of Himachal Pradesh AIR 1997
·'•
SC 768; Kans Raj v. State of Punjab and Ors. AIR 2000 SC
c 2324 - relied on.
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No.210 of 2007.
From the final Judgment and Order dated 23.11.2004 of
D the High Court of Judicature for Rajasthan at Jaipur Bench,
Jaipur in Criminal Appeal (DB) No. 990 of 2002. t_ •

U.U. Lalit, Sanjay Sharawat, Rajesh Sharma and Nitin
Sangra for the Appellant.

E V. Madhukar and Sum it Ghosh (for Aruneshwar Gupta) for
the Respondent.
The Judgment of the Court was delivered by

P.P. NAOLEKAR, J. 1. This criminal appeal by special ~.
F leave is. directed against the judgment and order dated
23.11.2004 passed by the High Cou~ of Rajasthan, Jaipur
Bench in Criminal Appeal (DB) No. 990/2002, which upheld the
conviction and sentence of the appellant under Sections 364,
450, 302, 201 of the Indian Penal Code, 1860 (for short "l.P.C.").
G 2. The relevant facts of the case as per the prosecution
are that Kalu (the deceased) was Chowkidar in the office of
Agriculture Extension Bundi and his duty was during the night in
the office premises. He was found missing under mysterious
circumstances on 15.07 .2000, hence informant Ramesh Chand
H Jain, Assistant Director lodged a written report on 15.07.2000
VINAY D. NAGAR v. STATE OF RAJASTHAN 739
[P.P. NAOLEKAR, J.]
,,r
at 7:30 am in the Police Station, Bundi. On the basis of the report, A
..... a case under Section 456/364 IPC was registered and
investigation commenced. During the investigation, it was
revealed that Kalu was a star witness in a criminal case
registered against the appellant-Vinay D. Nagar and others
under Sections 365; 364, 328, 342, 323 IPC. As per the B
prosecution case, the accused along with his other companions
'i,_ had abducted a child Sonu on 07.07.2000 and had broughtSonu
• in the office where Kalu was Chowkidar and kept him in the
office for some time. The activities of the accused and his
companions made Kalu suspicious. Since Kalu had seen the
accused with Sonu and as the accused was a Clerk in the same
c
office where Kalu was posted as a Chowkidar, the statement of
Kalu was recorded by the Investigating Officer under Section
161 of the Code of Criminal Procecjure, 1973 (for short "Cr.P.C.") .
. The Investigating Officer moved an application before the
D
Magistrate on 12.07.2000 to record the statement of Kalu under
•f
Section 164 Cr.P.C. and Kalu was to be produced before the
Magistrate on 17 .07 .2000, the date given ·by the Magistrate.
But in the intervening period, his dead body was found in a tank
on 19.07.2000. The post mortem report indicated that the death
of the deceased was homicidal. The appellant-accused was E
arrested and put to trial. In his statement under Section 313
Cr.P.C., he stated that on the relevant date he had gone to
Bombay, but the explanation was found false in view of the
r-. evidence led by the prosecution whereby it was found that he
had gone to Ahmedabad and not to Bombay. The Session Court F
found the accused guilty and convicted him.

3. The accused preferred an appeal before the High Court
which was dismissed holding that in the fact- situation the
deceased had seen the accused with Sonu and had named the
G
accused as the main culprit. The statement of Kalu was recorded
under Section 161 Cr.P.C. on 10.07.2000. On 09.07.2000, the
~
accused absented himself from the office and disappeared
without submitting any leave application. Later on, Kalu was
found dead on 19.07.2000. It was held by the High Court that
H
740 SUPREME COURT REPORTS [2008] 3 S.C.R.

1.,.
A the evidence collected by the prosecution shows that the
accused had a strong motive and the opportunity for committing
a crime. The High Court further held that the accused was
absconding and hence the disappearance of the accused after
the occurrence was a relevant circumstance which in the
B absence of plausible rebuttal evidence can be taken into
consideration. The High Court was of the view that from the
aforesaid circumstances an inference can be drawn towards
the appellant's guilt. All the aforementioned circumstances taken •••
cumulatively have formed a chain so complete that there is no
c escape from the conclusion that within all human probability the
crime was committed by the appellant and none else. Hence,
the appeal was dismissed by the High Court.
4. It is urged by Shri U.U. Lalit, learned senior counsel for
the appellant that the appellant's conviction is based on
D circumstantial evidence. The prosecution has relied upon the
statement made by the deceased Kalu under Section 161 \: .
Cr.P.C. to prove the motive for commission of the crime. As per
the learned senior counsel, the statement of Kalu under Section
161 Cr.P.C. read with Section 32 of the Indian Evidence Act,
E 1872, is not admissible and thus the courts below have
committed an error in relying on the statement made by the
deceased Kalu under Section 161 Cr.P.C. forthe alleged motive
of the appellant to commit the crime. It is further urged that the
prosecution has completely failed to prove the chain of
~
F circumstances which should point to the guilt of the accused
and none else.
5. This Court in several cases has expounded principles
for cases based on circumstantial evidence. In the case of C.
Chenga Reddy & Ors. v. State of Andhra Pradesh, AIR 1996
G SC 3390, this Court in para 20-A observed thus:

"In a case based on circumstantial evidence, the settled
law is that the circumstances from which the conclusion of
guilt is drawn should be fully proved and such
,.
circumstances must be conclusive in nature. Moreover, all
H
VINAY D. NAGAR v. STATE OF RAJASTHAN 741
[P.P. NAOLEKAR, J.]
,.:r- the circumstances should be complete and there should A
" be no gap left in the chain of evidence. Further, the proved
...,
circumstances must be consistent only with the hypothesis
of the guilt of the accused and totally inconsistent with his
,,
innocence ....

Further, in Pada/a Veera Reddy v. State of Andhra B
Pradesh & Ors., 1989 (Supp) 2 SCC 706, it was laid down
•"-
that when a case rests upon circumstantial evidence, such
evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is c
sought to be drawn, must be cogently and firmly
established;

(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
D
(3) the circumstances, taken cumulatively, should form a
*/ chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain E
conviction must be complete and incapable of explanation
of any other hypothesis than that of guilt of the accused
and such evidence should not only be consistent with the
.,;>-,
guilt of the accused but should be inconsistent with his
innocence. F
The principle of law is well established that where the
evidence is of a circumstantial nature, circumstances from which
the conclusion of guilt is to be drawn should in the first instance
be fully established, and the facts, so established, should be
consistent only with the hypothesis of the guilt of the accused. G
The circumstances should be of a conclusive nature and they
should be such as to exclude hypothesis than the one proposed
~ to be proved. In other words, there must be chain of evidence
'
so complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it H
742 SUPREME COURT REPORTS [2008] 3 S.C.R.

A must be such as to show that within all human probability the act -t,
must have been done by the accused.
6. The circumstances on which the reliance has been
placed by the prosecution are that Kalu was the prime witness
in Sonu's kidnapping case and had made Section 161 Cr.P.C.
B statement alleging that the accused was responsible for
abduction of Sonu; that it was apprehended by the appellant
that Kalu would make a statement before the Magistrate under .~
Section 164 Cr.P.C. on 17.07.2000 indicting the appellant, •
hence the appellant-accused had strong motive to eliminate
c Kalu; that the accused absented himself from the office from
10.07.2000 without taking leave; and that in his Section 313
Cr.P.C. statement he stated that he had gone to Bombay but it
was found out that he actually stayed in Ahmedabad under the
fictitious name in a hotel from 11.07.2000 to 12.07.2000 and
D thereafter in another hotel till 14.07.2000; and that there was a
possibility of the accused reaching Bundi from Ahmedabad on
the date of the incident. The fact that he stayed in Ahmedabad
"\ .
under fictitious name has been relied upon by the prosecution
to show that his conduct was suspicious. On 15.07.2000, Kalu
E was found missing under suspicious circumstances and his
dead body was found on 19.07.2000.
7. In the statement recorded by the police under Section
161 Cr.P.C. in a case registered under FIR No. 290/2000, the
deceased Kalu had stated that he was on duty from 5.00 in the ..;,
F evening till 10.00 in the morning of 8.7.2000. At about 8.30 p.m.,
two men came in a Maruti car and Vinay D. Nagar, Cashier in
his Department came on a motorcycle. They sat in the officer's
room and started making phone calls. On enquiry being made
by him, the accused told him that he was calling some
G acquaintance. Thereafter, he went to take meals and when he
returned after half an hour, all the three persons were still there
and they left in the same car at 9.00 p.m. The motorcycle of the
accused was left there. At 5.00 in the morning, Vinay climbed
over the gate and entered the office. Vinay woke him up and
H took out the keys from the bag. He opened the main gate and
VINAY D. NAGAR v. STATE OF RAJASTHAN 743
,.Y. [P.P. NAOLEKAR, J.]
" brought the car inside. He opened the shutter in the verandah A
-,
and the room. First he took keys and opened the computer room
and then brought out one child from the rear seat of the Maruti
van and put him in the computer room. That child was kept lying
in the computer room for 10-15 min~tes. Then after 10-15
minutes they came out of that room and all three of them put the B
child in the Maruti van and left. He stated that he had read the
~
• newspaper and learnt from others that last night one boy had
been abducted. He stated that he could identify all four persons
who had come to him.
8. It is urged by the learned senior counsel that the c
statement' recorded by the police under Section 161 Cr.P.C. of
the deceased in abduction case is not admissible under Section
162 Cr.P,C. and, therefore.. the prosecution could not have relied
upon the statement of the deceased Kalu recorded by the police.
' --r 9. The question is whether the statement recorded under
D
Section 161 Cr.P.C. of the deceased Kalu in a case registered
under FIR No. 290/2000 (abduction case) is admissible in the
case registered under FIR No. 301/2000 (murder trial) in view
of the provisions of Section 162 Cr.PC.
E
Section 162 Cr.P.C. reads as under:
"162. Statements to police not to be signed: Use of
statements in evidence. - (1) No statement made by
any person to a police officer in the course of an
investigation under this chapter, shall, if reduced to writing, F
be signed by the person making it; nor shall any such
statement or any record thereof, whether in a police diary
or otherwise, or any part of such statement or record, be
used for any purpose, save as hereinafter provided, at
any inquiry or trial in respect of any offence under G
., investigation at the time when such statement was made:
Provided that when any witness is called for the
. prosecution in such inquiry or trial whose statement has
been reduced into writing as aforesaid, any part of his
H
744 SUPREME COURT REPORTS [2008] 3 S.C.R.
.....
A statement, if duly proved, may be used by the accused,
and with the permission of the Court, by the prosecution,
,-
to contradict such witness in the manner provided by
section 145 of the Indian Evidence Act, 1872; and when
any part of such statement is so used, any part thereof
B may also be used in the re-examination of such witness,
,
but for the purpose only of explaining any matter referred
K '
to in his cross-examination. •
(2) Nothing in this section shall be deemed to apply
to any statement falling within the provisions of clause (1)
c of section 32 of the Indian Evidence Act, 1872, or to affect
the provisions of section 27 of that Act.
Explanation.- An omission to state a fact or
circumstance in the statement referred to in sub-section
(1) may amount to contradiction if the same appears to be
D
significant and otherwise relevant having regard to the "\ - '
context in which such omission occurs and whether any
omission amounts to a contradiction in the particular
context shall be a question of fact."

E On account of Section 162 Cr.P.C., a statement made by
any person to a police officer in the course of investigation under
Chapter XII, if reduced into writing, will not be signed by the
person making it, nor such statement recorded or any part
thereof be used for any purpose at any inquiry or trial in respect
F of any offence under investigation at the time when such
statement was made. Such statement may be used by an
accused and with the permission of the Court by the prosecution
to contradict the witness whose statement was recorded by the
police in the manner provided under Section 145 of the Indian
Evidence Act and can also be used for re-examination of such
G
witness for the purpose only of explaining any matter referred to
in his cross-examination. Bar of Section 162 Cr.P.C. of proving
the statement recorded by the police officer of any person during
investigation however shall not apply to any statement falling
within the provision of clause (1) of Section 32 of the Evidence
H
VINAY D. NAGAR v. STATE OF RAJASTHAN 745
[P.P. NAOLEKAR, J.]
,..-
. Act, nor it shall affect Section 27 of the Evidence Act. Bar of A
'""'· Section 162 Cr.P.C. is in regard to the admissibility of the
statement recorded of a person by the police officer under
Section 161 Cr.P.C. and by virtue of Section 162 Cr.P.C. would
be applicable only where such statement is sought to be used
at any inquiry or trial in respect of any offence under investigation B
at the time when such statement was made.
~
• 10. In the case of Khatri and Others v. State of Bihar &
Ors., AIR 1981 SC 1068, this Court has held that Section 162
Cr.P.C. bars the use of any statement made before the police
officer in the course of an investigation under Chapter XII, c
whether recorded in the police diary or otherwise. However, by
the express terms of Section, this bar is applicable only where
such statement is sought to be used 'at any inquiry or trial' in
respect of any offence under investigation at the time when such
statement was made. If the statement made before a police D
~-t.
officer in the course of an investigation under Chapter XII is
sought to be used in any proceeding, inquiry or trial in respect
of an offence other than which was under investigation at the
time when such statement was made, the bar of Section 162
will not be attracted. E
11. When the statement of Kalu was recorded by the police
officers under Section 161 Cr.P.C. during the investigation of
abduction case of a boy, Kalu was alive and thus that statement
r°' could be used in the subsequent investigation that was being
made with respect to the alleged murder of Kalu. F

12. It is then urged by the learned senior counsel that even
on lifting of Section 162 bar, it by itself will not make the statement
of Kalu recorded by the police admissible in evidence.
Statement can be admitted in evidence only by virtue of any of
G
the provisions contained in the Evidence Act. Therefore, even if
the Section 162 bar would not apply to Kalu's 161 statement,
1 would it be admissible in evidence. Then the next step would
be to see as to under which provision of the Evidence Act, the
same shall be admissible. According to the learned senior
H
746 SUPREME COURT REPORTS [2008] 3 S.C.R.

.... ,,.
A counsel, the statement of a person who is not alive for the
purpose of cross-examination in case need arises, would be
admissible only if it falls within the four corners of Section 32 of
the Indian Evidence Act.
13. Section 32 of the Indian Evidence Act enumerates eight
B clauses in which the statements made by a dead person or a
person who cannot be found or who has become incapable of x
giving evidence or whose attendance cannot be procured in "
court can be admitted in evidence. Clauses (2) to (8) of Section
32 are not material for the purpose of deciding the present case.
c The relevant provision reads as under:
"32. Cases in which statement of relevant fact by
person who .is dead or cannot be found, etc., is
relevant. - Statements, written or verbal, of relevant facts
made by a person who is dead, or who cannot be found,
D
or who has become incapable of giving evidence, or ~1 '
whose attendance cannot be procured, without an amount
of delay or expense which under the circumstances of the
case appears to the Court unreasonable, are themselves
relevant facts in the following cases:-
E
(1) When it relates to cause of death.- When the
statement 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, in cases in "'-.
F which the cause of that person's death comes into
question.
Such statements are relevant whether the person
who made them was or was not, at the time when
they were made, under expectation of death, and
G whatever may be the nature of the proceeding in
which the cause of his death comes into question."
Clause (1) says that when a statement is made by a person r
as to the cause of his death or as to any of the circumstances of
the transaction which resulted in his death, such statement would
H
VINAY D. NAGAR v. STATE OF RAJASTHAN 747
.[P.P. NAOLEKAR, J.]

.f be relevant. So the question is whether the statement made by A
deceased Kalu under Sectton 161 Cr.P.C. in previous
investigation would be admissible as per the second. part of
Section 32(1) of the Evidence Act which says that.the statement
made by a person as to the 'circumstances of the transaction
which resulted in his deat~' would be admissible and whether B
the deceased's statement under Section 161 Cr.P.C. falls under
'circur:nstances of the transaction which resulted in his death'.
x
• 14. In the case of Pakala Narayana Swami v. Emperor,
AIR 1939 PC 47, it was held that a statement merely suggesting
motive for a crime cannot be admitted in evidence unless it is c
so intimately connected with the transaction itself as to be a
circumstance of the transaction.
In the case of Sharad Birdhichand Sarda v. State of
Maharashtra, AIR 1984 SC 1622, this Court in para 21 held
D
as under:
-f "Thus, from a review of the authorities mentioned above
and the clear language of Section 32(1) of the Evidence
Act, the following propositions emerge:
(1) Section 32 is an exception to the rule of hearsay E
and makes admissible the statement of a person who
dies, whether the death is a homicide or a suicide,
provided the statement relates to the cause of death, or
.ij exhibits circumstances leading to the death. In this respect,
as indicated above, the Indian Evidence Act, in view of the F
peculiar, conditions of our society and the diverse nature
.. and character of our people, has thought it necessary to
widen the sphere of S. 32 to avoid injustice.
(2) The test of proximity cannot be too literally
G
construed and practically reduced to a cut-and-dried
formula of universal application so as to be confined in a
strait-jacket. Distance of time would depend on vary with
1 the circumstances of each case. For instance, where death
is a logical culmination of a continuous drama long in

" H
.748 SUPREME COURT REPORTS (2008] 3 S.C.R. ·

A process and is, as it were, a finale of the story, the
-r.
statement regarding each step directly connected with
the end of the drama would be admissible because the
entire statement would have to be read as an organic
whole and not torn from the context. Sometimes statements
B relevant to or furnishing an immediate motive may also be
admissible as being a part of the transaction of death. It
is manifest that all these statements conie to light only x<
after the death of the deceased who speaks from death.
For instance, where the death takes place within a very
c short time of the marriage or the distance of time is not
spread over more than 3-4 months the statement may be
admissible under S. 32.
(3) The second part of Cl. (1) of S. 32 is yet another
exception to the rule that in criminal law the evidence of a
D person who was not being subjected to or given an
opportunity of being cross-examined by the accused, \·-
would be valueless because the place of cross-
examination is taken by the solemnity and sanctity of oath
for the simple reason that a person on the verge of death
E is not likely to make a false statement unless there is
strong evidence to show that the statement was secured
either by prompting or tutoring.
(4) It may be important to note that Section 32 does
_,
not speak of homicide alone but includes suicide also, ~

F hence all the circumstances which may be relevant to prove
a case of homicide would be equally relevant to prove a
case of suicide.
(5) Where the main evidence consists of statements
and letters written by the deceased which are directly
G
connected with or related to her death and which reveal a
tell-iale story, the said statement would clearly fall within
the four corners of Section 32 and, therefore, admissible. ,.
H
The distance of time alone in such cases would not make
the statement irrelevant."
r
VINAY D. NAGAR v. STATE OF RAJASTHAN 749
[P.P. NAOLEKAR, J.]
.1 Further, in the case of Rattan Singh v. State of Himachal A
Pradesh, AIR 1997 SC768, this Court has. beld as under:-
'
"Section 32(1) of the Evidence Act renders a statement
relevant which was made by a person who is dead in
cases in which cause of his death comes into question,
but its admissibility depends upon one of the two B
conditions: Either such statement should relate to the cause
'X. of his death or it should relate to any of the circumstances
•
of transaction which resulted in his death. The collocation
of the words· in Section 32(1) "circumstances of the
transaction which resulted in his deatt1:' is apparently of c
wider amplitude than saying "circumstances which caused
his death". There need not necessarily be a directed nexus
between "circumstances" and "death". It is enough if the
words spoken by the deceased have reference to any of
the transactions which ended up in the death of the D
··y deceased. Such statement would also fall within the
purview of Section 32(1) of the Evidence Act. In other
words, it is not necessary that such· circumstance should
be proximate, for, even distant circumstances can also
become admissible under the sub-section, provided it has E
nexus with the transaction which resulted in the death."
(Headnote-B)
In the case of Kans Raj v. State of Punjab & Ors., AIR
/•:
2000 SC 2324, a 3-Judge Bench of this Court dealt with Section F
32(1) statement made by the deceased who had allegedly died
due to dowry harassment and in para 10 held as under:
"Section 32 of the Evidence Act is an exception to the
general rule ·of exclusion of hearsay ev~dence and the
statements of a person, written or verbal, of relevant facts, G
after his death are admissible in ~vidence if they refer to
the cause of his death or to any 'circumstances of the
~- transaction which·tesulted in his death. To attract the
provisions of Section 32, for the purposes of admissibility
~ of the statement of a deceased the prosecution is required H
750 SUPREME COURT REPORTS [2008) 3 S.C.R.

A to prove that the statement was made by a person who is f.
dead or who cannot be found or whose attendance cannot
be procured without an amount of delay or expense or he
·is incapable of giving evidence and that such statement
had been made under any of the circumstances specified
B in sub-sections (1) to (8) of Section 32 of the Act. Section
32 does not require that the statement sought to be
admitted in evidence should have been made in imminent
y: -"
expectation of death. The words "as to any of the
•
circumstances of the transaction which resulted in his
c death" appearing in Section 32 must have some proximate
relation to the actual occurrence. In other words, the
statement of the deceased relating to the cause of death
or the circumstances of the transaction which resulted in
his death must be sufficiently or closely connected with
the actual transaction. To make such statement as
D
substantive evidence, the person or the agency relying
. upon it is under a legal obligation to prove the making of
such statement as a fact. If it is in writing, the scribe must
".
be produced in the Court and if it is verbal, it should be
proved by examining the person who heard the deceased
E making the statement. ... "
15. We have analysed the statement of the deceased Kalu
made to the police under Section 161 Cr.P.C. We do not find
that the statement of the deceased was in regard to the cause
F of his death, or as to any of the circumstances of the transaction
.,
,,_

which resulted in his death. The statement is in regard to the
accused's involvement in the abduction of a boy and has no ~
remote connection or reference to the death of the deceased
and thus would not be admissible under Section 32 of the
Evidence Act. The statement recorded by the police although
G
could be proved as there would not be any bar under Section
162 Cr.P.C. for proof of such statement, but it would not be
admissible under Section 32 of the Evidence Act, and thus it
could not have been relied upon by the prosecution to prove the
motive for commission of the crime by the accused appellant.
H
-
VINAY D. NAGAR v. STATE OF RAJASTHAN 751
[P.P. NAOLEKAR, J.]
! •'t
• 16. We have gone through the evidence placed on record A
by the prosecution. None of the witnesses stated that at the
l relevant time and/or relevant date, they had seen the accused
at Bundi. The witnesses examined by the prosecution have
proved the fact that the accused stayed at some of the hotels in
Ahmedabad, but there is no proof of the fact thaf he checked in B
",I..
the hotel(s) giving the fictitious name. There is no proof of the
• accused being last seen with the decea·sed. The prosecution
has failed.to prove the accused's presence on the date of the
incident at Bundi. The evidence adduced by the prosecution
does not point to the guilt of the accused. The circumstances c
on which the High Court has placed reliance do not establish
the guilt of the accused, nor does it exclude every hypothesis
but the one proposed to be proved by the prosecution. The
prosecution has failed to prove the chain of evidence by which
one could clearly and unequivocally reach to the conclusion of
~y D
pointing the guilt of the accused-appellant for commission of
the crime.
17. For the aforesaid reasons, the appeal is allowed. The
judgment of the High Court and that of the Session Court are
set aside. The accused-appellant is directed to be set at liberty E
if he is not required in any other case.
K.K.T. Appeal allowed.
~"

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