K.G. Balakrishnan, J.

Appellant - Ravindran Nair, a taxi driver was the sole accused in SC No. 100/92. He was tried by the Court of Sessions, Trivandrum for allegedly causing the death of another driver viz., Murukan. The Court found the appellant guilty and sentenced him to undergo imprisonment for life. Appellant Ravindran Nair and deceased Murukan were parking their vehicles at Trivandrum Central Station. On 1.2.90, some tourists alighted from the train and wanted to go to Kovalam. They approached the appellant and some other taxi drivers but they quoted the fare at a higher rate. Then these tourists approached the deceased and he offered to take them at Rs. 60/-. This was resented to by other taxi drivers including the appellant. Appellant threatened and caused obstruction to the deceased in taking the vehicle out of the taxi stand. Then a traffic constable intervened and the deceased was allowed to drive out his vehicle from the stand. When deceased Murukan came back to the taxi stand, appellant had again a wordy altercation and threatened the deceased by saying that appellant would see that the dead body of the deceased would reach the mortuary in the next morning. Deceased then filed a written complaint to the police and thereafter the deceased was sitting in his car. The appellant along with two others came near the deceased and stabbed him at about 11.45 P.M.. The appellant and others escaped from that place. Deceased was taken to Medical College Hospital where he was declared dead.

2. On the side of prosecution, 13 witnesses were examined. Some of the taxi drivers were examined as eye witnesses, but they turned hostile, they are PWs.1 and 4. PW. 2 a news paper boy was also sighted as a witness but he too turned hostile. PW. 8 was an assistant of the deceased. It was he who gave the FI statement to the police and he supported the prosecution case. The learned Sessions Judge relied on the evidence of PW. 8 and also the Ext. P11 document and recovery of MO.1 weapon at the instance of the appellant and other items of evidence and held the appellant guilty. It may be noticed that all the eye witnesses turned hostile and only PW. 8 throws some light as to how the incident happened. He deposed that on the date of the incident, deceased and himself were taking rest in the taxi cabin after completing a trip. Deceased Murukan was not wearing the shirt and he had kept the shirt on the side of the car. Then, appellant and two others came, beat deceased Murukan and then stabbed him. According to this witness, he had seen appellant stabbing deceased Murukan. After stabbing the deceased, appellant and two others left the place. Deceased Murukan fell on the ground and he was then taken to Medical College Hospital and one Unni had driven the vehicle and when they reached the Medical College Hospital, they were asked to give blood. Two bottles of blood were given and they were asked to get two more bottles of blood. Then they procured the same and they were told that Murukan had passed away. PW. 8 gave Ext. P8 FI statement before the police. The evidence of PW. 8 is seriously attacked by appellants counsel. In Ext. P8 statement, this witness had given a slightly different version. In Ext. P8 statement, he deposed that after going for the trip they came back to the taxi stand at about 11 pm. and he was asked to sit in the car and Murukan went for taking tea. PW. 8 deposed that he was sleeping in KLV 2579. He heard an outcry and he found Murukan with stab injuries. He deposed that two other taxi drivers were trying to take Murukan in another taxi car, that he saw the appellant and three others running towards west and the appellant was having dagger with him. At the time of giving evidence, PW. 8 deposed that he had seen the incident. In view of the clear variation of his evidence, we are not inclined to accept the testimony of PW. 8 in its entirety, but, never-the-less, his evidence shows that appellant was involved in this case. It is important to note that the incident happened at 11.45 pm on 1.2.90 and at 2.15 am. i.e., in the early hours of 2.2.90, the FI statement was recorded wherein the appellants name was mentioned as one of the assailants.

3. Another important item of evidence on the side of prosecution is Ext. P11, a complaint filed by the deceased with the police, shortly before the commission of the crime. PW. 8 in Ext. P8 statement had mentioned about the filing of such a complaint by Murukan. The grievance of the appellant against deceased Murukan was that he had taken passengers to Kovalam at a lower rate. This was resented to by other taxi drivers and the appellant Ravindran threatened the deceased by saying that on the next day morning, he would see that his dead body was in the mortuary of medical college hospital. At the time of evidence, PW. 8 deposed that Murukan had filed a written compliant with Thampanoor Police Station and thereafter came to the scene of occurrence and was waiting there. Ext. P11 compliant filed by deceased Murukan was recovered by police under Ext. P16 mahazar. In the complaint it is noted that Head Constable 3553 had taken note of the contents of the complaint in the general diary at 11.05 pm. The learned counsel for the appellant points out that this Ext. P11, though recovered on 3.2.90 under Ext. P16 mahazar, it was not produced in time and the same was produced only on 30.5.90. It was argued that belated production of this document in court causes serious suspicion regarding the genuineness of the document. But we are not inclined to accept this contention. Ext. P16 shows that it was recovered on 3.2.90 itself. The evidence of PW 8 shows that such a petition was filed in the night of 1.2.90. The contents of Ext. P11 petition is very important. In one portion of the petition it is stated that:

(When the vehicle was started and about to move, he again caused obstruction and threatened by saying that before the dawn of the next day, he would see that my body reaches the mortuary of Medical College.)

It is provided that the statement in Ext. P11 was made by the deceased a few hours prior to his death. The facts stated in the statement are circumstances leading to his death. S.32(1) of the Evidence Act reads as follows:

11S.32 When it relates to cause of death: (1) 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 which the cause of the persons deaden comes into question. Such statements are relevant weedier the person who made them was or was not, at the time when th were made, under expectation of dead, and whatever may be the nature of the proceeding in which the cause of his dead comes into question."

S.32(1) shows that any statement 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 are

relevant circumstances. It is not necessary that the maker of that statement should be under the expectation of death. It is also immaterial as to the nature of the proceeding in which such a statement was made. In Ext. P11 document, the deceased made a statement to the effect that, the appellant has made a serious threat to his life and he is under the apprehension of death. The nature of the allegation also is stated in Ext. P11 and therefore, we are of the view that relevant portion in Ext. P11 which refers to the possible death of deceased Murukan is a relevant circumstance under S.32(1) of the Evidence Act.

4. The Supreme Court, in Onkar v. State of M.P. (1974 Crl. L.J. 1200 MP) expressed the opinion that even statement of the deceased made long before the murder could be admitted in evidence under S.32 (1).

5. In another decision reported in Mithailal v. State of Maharashtra (1993 Crl L.J. 3580 bombay ) death was caused by starvation, cruelty and ill treatment. Deceased had written letters to her brother giving out these details. The letters were held to be admissible under S.31(1) of the Evidence Act.

6. Ext. P11 document, which is admissible under S.32(1) of the Evidence Act shows that, the appellant threatened the deceased some hours prior to the incident and even caused obstruction to the car driven by the deceased. Thereafter appellant came and attacked the deceased, that is evident from the testimony of PW. 8. There is also evidence of recovery of M.Q.1 knife under Ext. P17 mahazar, but, we do not attach much importance to the recovery of this weapon as the same was not found blood stained.

7. The post mortem examination of the deceased was conducted by PW. 3. There were 11 injuries and out of them 7 were incise injuries. Injury No.1 was on the left side of the back of trunk, Injury No. 2 was on the right side of the back of trunk. The first injury had entered the left chest cavity by cutting the 7th rib. The lower lobe of the left lung was also cut. PW. 3 deposed that injury No.1 was sufficient in the ordinary course of nature to cause death. The medical evidence is consistent with the prosecution case.

8. In view of the evidence of P.W. 8 supported by dying declaration contained in Ext. P11 statement, coupled with the medical evidence, we hold that the appellant was rightly convicted by the Sessions Court. We confirm the conviction and sentence and dismiss the appeal.