VOL. A^I.J A L L A H A B A D SXmiK^.

385

7/eZJ that the suit was one for money had aud received for the plaintiff's use, 188i)
and was therefore cognizable by a Court of Small CauseB. Sohan v. Mathura Das
(1) followed. UwKAi
v.
The parties to this suit were co-sharers in a patti of a mahal, KamX ac-.
Certain land in this patti had been taken for public purposes under
the Land Acquisition -Act. A sum of-Rs: 29-1-4 bad been awarded
as compensation for the acquisition of the land. This sum bad
been received by the appellant Umrai, one of the oo-sharers. The
respondents, asserting that they were entitled to receive Rs. 10-14-6
out of the compensation awarded, that sum representiug propor­
tionately the extent of their interest in the land, sued the appellants,
the other co-sharers in the patti, for the same. In this second appeal
in the suit, it was contended by the respondents that a second
appeal would not lie, as the suit was one of the nature coguizablo
in a Mufassal Court of Small Causes.
Lala Lalta Prasad, for the appellants.
Munslii lianummi Prasad, for the respondents.
The Court ( O l d f i e l d aud M a h m o o d , JJ.) delivered the follow-
ing judgm ent:—
O ld fie ld , J .— A preliminary objection has been takSn that the
appeal will not lie, as the suit is of the nature of a suit cognizable
by a Court of Small Causes. W e are of opinion that the objection is
valid. The suit is for money had and received for the plain
use, and following the decision of this Court in Sohjm v. Mathura
Das ( 1), we hold such a suit to be cognizable by a Court of Small
Causes. The appeal is dismissed with costs.
____________ Appeal dismissed.

FULL BENCH.
■............... ......- Fehruarif 27,
Before Sir W. Comer Petlieram, Kt.^ Chief Justice, Mr. Justice Straight, Afr, Justice ' ^
Oldfield, iWr, Justice Brodhurst, and Mr Justice MuJmood.
QUEEN-EMPKESS v. ABDULLAH.
Staiemenf as to cause of death—Cause of death signified ia a,?moer to question—Ad-
mimbility of evidence as to signs—A d I of 1872 {Evidence Act), s. 3 s. 8,
Explanations 1, 2, ss. 0, 32 ( 1 ) — “ Verbal” statement,
lo a trial upon a charge of murder, it appeared that the deceased shortly
before her death was questioned by various persons as to the circumstaucea
( 1 ) L L. R., 6 All.
38G T H E I N D I A N L A W REPORTS. [ VOL . v n .

ISSn ill A'hicli the injiu'ies liiui been iiillictod on Iiit , that sho was at that timo
unable to speak, but was conf)(;iouH and able to inake siguH. Evidence was olTureii
Q dkun- by the proHeeution, lUid admitted by the SoSHiona .Indgo, to prove tho qucHtioiifs
.Em i ’ u es s
put to the dceeftsed, and tlie HignH niadu by hev in answer to auch qnestiona,
A bdullah^ IMd by tlie Full Bench (iMaiimood, J, diHHonciiig) that (ho questions and
the signs taken together might pro>,'erly be, regarded as “ verbal Htatcnients’’ made
by Ji person as to the caiisn of h« r death wilhiti the menniug of s. 32 of tlio, Kvi-
d(!nce Act, and were therefore adinia»il)lo in evidenco nnder that section.
/’«?■ S'nuKiiiT .T., that Btatenientri by the witnesHos aa to thoir impresmiona of
what tho aigns meant were inadminsibio, and Hhonld bi> eliniiuatod; but Ihat asuuniing'
that the (|nestions put to tho dooeasod wore roapondod to by hi^r ia ancli a manner
.-vHto leave no doiilit in the niind of tho Court aa to bur moaning, it was not strain-
uig tho construction to hold that the eircumHtanoea werw covcred by a. 32.
I^cr MAilMrtoi), J,, that tho oxpreaaion ‘‘ verbal Ht!d,ementH'’ in a. 32 ahoiild bo
continfd to statenienta luado by nioaiia of a wtird or words, an<l that tlui aigns made
by the deceased, not being verbal atatemonts in thia a<!nso, were not julmiBsiblo iu
evidence under that section.
far Pethuham, C. J., that the signs could not be ])rovedaH “ conduct” within
tho meaning of s. S of tho Evidenco Aot, inaanmoh aa, taken alone, an<l without
icferencc to the questioUa loiwling to them, there was nothing to connect them with
tho cause of death, and so to make them relevant; while the <piehti(ma could ni)t bo
proved either under ExplanatAini 2 of s. 8, or nnder a. i), inasmuch aa tho condition
/ procedcnt to their admissibility under either of these proviwiona was the nilevancy
of tho eondtfct which they wore alleged to alleot or of (,lu‘ t'ac.t.j wiiich they wore
intended to explain. Tho “ conduct ” mado rch^vant by ». « is combuit which id
directly and immediately in Huenoed by a faetiu i.isnoor n^li'Vrint fa(it, and it does not
include actions resulting from somo iutormcdi.i Lo eausc, such ?ia questions or augges-
tions by other persons.
I'cr RIaiimood, J., that tho word “ combtct” aa naed in h, 8 doea not mean only
Bucli conduct JV8 is directly and immediately iulhutnccd by a fact in isaue or i-elovaut
fa c t; that the signs made by tho dooeased wen; l.lu; conduct of “ a person an offence
againat whom was tho subjeot of any pr(a!eeding" and wore relevant as auch under s.
8 ; i\nd thiifc the queationa [lut to her were admissible iu oviilcnec either under
Explanation 2 of the same section, or under s. i), by way of an explanation of the
meaning of the signa.

This whs au appeal from an orclor of Mr. .11. H. S. Aikraan,

Officiating ^Sessions Judgo of Aligarh, dated the 24lh Uecoiiihor,
1884, eonvictitig tho appellant of murder. Tho ajjpellaut, Abdullah,
/ son of Chhote, was charged belbro the Court of Session with tho
murder of one Dulari, a prostituto, by cuttiiif]; her throat with a razor.
It appeared that on the morning of tho 27th 8 eptoiiibor, 1884, Du­
lari, with her throat cut, was taken to the police-station, and thenco
to the dispensary. She lived till tho morning of the 29th. The
posi mortem examination showed that tho windpipe and the anterior
VOL. VII.] ALLAHABAD SERIES. S87
wall of tlie gullet had been cut through. The deceased had also a
cut on the left thumb. When she was taken to the police-station,
^ ’ Q
~
iiu k n -

she was questioned by her mother, Chunna Jan, in presence of the Empukss

Kotwal (sub-inspector of police), Grhulam Ali. She was also at A b d u lla h .

the same time questioned by the .Kotwal anct again, subsequently,

by Munshi Behari Lai, Deputy Magistrate, and Babu Mulraj,
Assistant Surgeon, She was nnable to speak, but was conscious
and able to make signs. Evidence was offered by the prosecution
to prove the questions put to Dnlari, and the sipjns which she made
in answer to such questions. Objection was taken to the reception
of this evidence, on the ground that, under s. 32 of the Evidence
Act, only written or verbal statements made by a deceased person
as to the cause of his death were admissible, and that si f^ns wore
not “ v e r b a l ” within the meaning of that section. The Sessions
Judge overruled this objection, and allowed the evidenco to bo
given. That evidence was as follows:—
Chunna Jan stated :— The same day, in the evening, the
Deputy Magistrate came to the dispensary. Ho asked her, Dulari,
who had wounded her. She closed her lips so. Then the Deputy
Magistrate mentioned a great many names to her urrtil the name
of Abdullah was mentioned, when she nodded her head and said
^ hdn'’ (yes) in a low voice. He asked her what he had wounded
her with, and she raised her finger as she had done before. He
asked her if she had been wounded with a razor, and she nodded
her head. He asked her how she had seen the razor. She pointed
to her throat, and showed a wound on the finger of her left hand.
He asked her if a lamp was burning. She made a sign with her
hand that there had been no lamp. He asked her how she had seen
if there had been no light, and she pointed and looked up at the
sky as if to indicate that it was morning. The nest morning tho
Kotwal came to the dispensary with a man whom I recognized as
the man who had come to fetch her. The Kotwal in my presence
asked her if that was the man who had killed her, and she made a
sio'u
CD that it was not. He asked her whether this was the man who
had taken her away, and she made a sign that it was. 1 repeated­
ly asked her who had wounded her, and she always made signs
that it was Abdullah.’’
388 T H E I NDIAN L A W REPOIVrS. [VOL. V I L

1835 Ghulam AH Khan stated :— Dulari was miablo to speak. I

Q ukun-
askod lier who had cut Jior throat. She could not apeak. Then
liM P liliS S her mother asked if the sip<thi had cut h«r throat. She reuiained
V.
A u d u lla ii. quiet. (Then said) She mudo a negative si^n with lier hand.
Her mother asked whether tlio Munshi iuid cut lior throat She
aofain made a iiemttive si^ii with' lier hand. After inentionin<r
two or three other names, to all of which she made the same si(in>
the mother mentioned Abdullah’s name. Then slio made an aflir-
niativesi_(^u with both hands, thus (showing the maniior in wiiich de­
ceased moved her liands). When I askod which Abdidlah, the
niotlior said it was a Bhath/ara, a shoo-suller. She only mentioned '
Abdulluh’s name without describing him as a siioe-seller wlien she
(piestioned lier daughter, Wluni 1 asked her vvliat he had cut
her throat with, she lifted her fore-iinger 8 0 . 1 understood her
to mean a pocket-knife.”
Mumhi Be.hari L ai stated:— On the 27tli S(?j)tember last,
between 7 and 8 I’.M., 1 went to the Koil dis})ensary to take the
dejjosilion of a woman named Dnlari. 1 found lier unable to apeak.
Tlio woman nowin Court, Oluinna Jan, was with her. The eyes of
Duhiri wer<?. shut, but she opened them when I call(!d out to her.
The Assistant Surgeon and her mother, Ohunna Jan, said that
though she could not si)eak, she could make signs. I mentioned
several nanu.'S,— i.e.,, Ismail, Akbar Khan, Akbar TTusain, Khuda
Baklish, and asked regarding them one by one if they had wound­
ed her. Dulari was nnablo to lift her hand, but her mother
raised her [i. e. Dulari’s) forearm, holding it below tho cdbow.
When her arm was raised, Dulari was able to move her hand
from the wrist, and when the above nauaea were mentioned to
her,J she waved her liand backwards and forwards,' thus makins;o
a negative sign. Some of tho above names were told mo by
Cburma Jan, and some I mentioned at liap-hazard. I then, at
Chunna Jan’s instigation, asked her if Abdullah had wounded her.
On this she moved her hand up and down. I understood this to
be a sign of affirmation, i only numtioned the name Abdullah ;
did not mention his parentage, caste, or trade. I then askod her
if he had wounded her with a sword or knifo. She mudo a neca-
tive sign with her hand. I then asked her if he had wounded her
with a razor. She, in answer to this, made an affirraative sigo
VOL. yn.J A L L A H A B A D SERIES. 389

with her hand. I asked her if she had been awake when ho. cut
her throat. Sbe made a negative sign. I asked her if she had qohkn-
been asleep at the time. She made an afBrinative sign. I asked Bmpbess
her if she had been wounded during the night. She made a nega- ABDui.LAir.
tive sign. I then asked her if she had been wounded towards
morning {s>ihah hote). She made the affirmative sign to this. I
asked her if sha had recognised Abdullah. To this she made the
affirmative sign. I asked her if any other man save Abdullah had
been presnnt when her throat was cut. To this she made the nega­
tive sign. The Assistant Surgeon was present during the time I
examined Dulari. Ohunna Jan was supporting Dulari’ s arm all
the time, holding it close to the elbow. Dulari moved her hand
herself from the wrist^ the motion was not communicated to her
hand by Ohunna Jan moving her arm. Dulari’s eyes were gene­
rally open during the examination, but she may have shut them
from time to time: she seemed to me to be under 20 and over 15
y e a r s of age. 1 was with her between 15 minutes and half an
hoar. From her ni!iking signs of affirmation and negation, I am
of opinion that she understood the questions I put to her.”
Babu M ulraj stated: When she vt^as questioned ikt first, she
endeavoured to nod her head, and did nod it several times, but I
forbade her doing so, as it was prejudicial to the wound. I told
her when she wished to express a negative, to move her hand
backwards and forwards, the usual mode of expressing a negative ;
and when she wished to express an affirmative, to move her hand
up and down, thus (witness here indicated the gesture indicated
by the Deputy Magistrate as the mode in which deceased express­
ed an affirmative). I think the Deputy Magistrate came on the
evening of the 28th. 1 was present when the deceased was exa­
mined by the Deputy Magistrate. I heard the Deputy Magistrate
ask her about the man who killed her, and I saw her make the
affirmative sign. She made the affirmative sign at the mention
of the name of Abdullah. I do not remember now whether I saw
her make a negative gesture to any question put by the Deputy
Magistrate. She was conscious, but weak, when the Deputy Magis­
trate questioned her. 1 think when the Deputy Magistrate ques­
tioned her, she tried to nod her head and I forbade, and told her
to make signs with her hand, I do not remember whether she ,
SOO THE INDIAN LAW REPORTS. [VOL. VII.

lifterl her arm liorself or wlietlior any one supported her arm, but
^ slie was not, ai tluit tirno so weak us not to bo able to lift lier arm.
Ewi’ukss my opinion slio way able to undorstantl (jnestions put to bor
ABDutLiVH. ■wliou tlio Deputj Manfistrato queatioiiod iior. I do not remember
whether any other oifioial save the Deputy Maf,nstrate questioned
her in my presence. 1 several times questioned her as to how she
eamo to be wounded. I mentioned several names to her, and asked
her regarding them whotlier any one of tlieni had killed her. To
all she made the negative si<^n. When I asked her whether it was
Abdullah who had wounded her, she :nado the allirmative sign. 1
do not know what Abdullah was referred to. I questioned Dulari*
rejxarding him from hearing what the mother said. Af'ter hear-
ing from her moilior what Abdullah it was,— i. whose son he
was, and that he was a shoe-seller, I asked Dulari specifically
whether it was Abdullah, the son of such a one, the seller of Bhoes,
who had wounded her, and she made the affirmative sign. 1 do
not remember whoso son Chunna Jan said Abdullah was, but slie
mentioned Abdullah’s fatber’a name. I also questioned her about
the time at which the wound was inflicted. I asked her whefchor
she had be;tni wounded at tlie time she went to the house. Sho
made a negative sign to this. I asked her whether it was towards
dawn, and sho made an affirmati’fe sign. I also asked her what she
Lad been wounded w’'ith. I think she made an affirmative sign at
the mention of a razor. From what I hoard, I asked whether
Abdullalihad taken her into his father’s house. To this question
she made an affirmative sign. I asked her \vh(ither any one along
with Abdullah had killed her, and sho nuido a negative sign.”
In overruling the objection to this evidence, the Sessions Judge
observed as follows :—
“ I do not think the section means that the statements must
either be written by the deceased or uttered by the deceased in an
audible voice. Evidence given by a dumb witness, or a witness
imable to speak, by the medium of signs, is, according to the pro­
visions of s. 119 of the Evidence Act, deemed to be oral evidence.
And in like manner, in a.case like the present, if deceased was able
to convey her meaning by means of signs, I think her statement is
lo be considered as a ‘ verbal’ statement, althoui^h she herself vva»
VOL. Vll.j A L L M I A B A D SERl Ji S. .191

Unable to pat it into words. I accordingly held that the witnesses 1885

might give evidence as to the signs they saw deceased make when Q ukkn-
questions were put to her. From the evidence of these four wit­ E m I‘ RES3
V.
nesses it appears that the deoeased, when questioned as to whether AaDOLIiAH.
the Munshi, the sipahi {i.e., the pretended tahsil chaprasi), and
others who w'ere mentioned by name had cut her throat, made to
all the ordinary negative sign used by the natives of thi^i couatry
(this is made by moving from right to left: and from left to light
the open hand held perpendicularly with the palm turned away
from the body), but that when the name of Abdullah was mention­
ed, she made a different sign by moving the hand up and down.
This gesture can be best described by saying that she ‘ nodded <
with her hand if one may be allowed the expression. The Assist­
ant Surgeon states that she endeavoured to, and did more than
once, nod her head, but that he forbade her doing so, as it was
hurtful to the wound, and instructed her to use the signs of assent
and dissent indicated above. The Deputy Magistrate, who visited
her on the evening of the 27th, states that from her making signs
of affirmation and negation he la of opinion that she understood
the questions that were put to her. The Civil Surgeon ^atea that
she remained conscious np to the 28th, and the Assistant Surgeon, in
whose immediate charge she was, says that she remained conscious
until shortly before she died,— i.e., the morning of the 29th. None
of the larger blood-vessels Were injured, and the wound itself was
not one w-hich would directly afteot the brain. I think, then, that
there is no reason to doubt that the deceased, when questioned by
these four witnesses, understood what was said to her. I think
it ia clear from the evidence of these four witnesses that the de-
caased intended to charge, and did charge the accused, Abdullah,
with having cut her throat. In answer to these witnesses, she
indicated that she had been attacked towards the morning while she
was asleep, and that her throat had been cut with a razor. She
indicated to the Assistant Surofeon that it was the accused Abdul-
lah who had taken her from the haithak into the adjoining house*
•The cut on her thumb appears to indicate that she off<3red resistance.
I think, therefore, that though she may have been asleep when
first attacked, she had the opportunity of recognizing her'murderer,
whoever he was. Oa learning that Abdullah wan charged, the aub-
53
 THE INDIAN LAW EEPOIITS. [VOL. VII*

18S5 inspector causcd a search to be made for liiin in all directions, but-
it w a s not iiiitii tbo evening of the 29fch Septeinherj— i . <9., aftor
Q ukkn-
K m phkss Dulari WU3 dead, —tliat ho was arroatod. IIo could not therefore
V.
A 15UULLAH.
be coufrcnto.d witli the doceasod, but I thin’', tiun'e can be no
r e a s o n a b l e doubt th;it it wus t h e Abdullah in Court whom she moan

to accuse of her murder.”

It was contended for tlie appellant that the evidence which has
heen set out above was improperly received.
With refereuce to this contention, the Divisional Bench (Pethe-
ram, C. and Mnhmood, J.) bea.ring the appeal referred tho
following question to the Full iJeach : — “ Whether, under the
circumstances of this case, the evidence of tlie witnesses to prove
the impression created on thQir minds by signs made by the
deceased, was admissible, as forming a statemonc made by her or
otherwise ?”
Mr. G. E . A. .Ross and Mr. C. Dilloyi, for the appellant.
Mr. n . m u {F a b lk Prosecutor)^ for the Crown.
The P ublic Pri)secn(O)' (Mr. H ill), for the Crown, contended
that the rsigns made by the deceased wore the “ conduct’' of n
])eraon, an offence again.st whom was the object of any pro(ieud~
ing,” and suoh conduct was influenced b y ” the cutting of her
throat by tlio prison(!r, which was afaci in i.ssue. They were tht;re-
fore admissible in ovid('.nce under s. 8 of the Evidoncc Act, and,
that being so, the <|uestions also in answer to which they were
made were adruissible under Explanation 2 o f the same section,
and also under s. 9. They might also properly bo regardoil a«
amounting to a dying declaration under s. 32. Without contending
that the signs taken alone amounted to a verbal statement, they at
least signihed an assent to or adoj>tion of the verbal statements
implied by the questions, and therefore, taken in coujunction
with such questions, should be treated as “ verbal statements.”
In England it has been held that no continuous statement by a
dying person is necessary to constitute a dying declaration, and that
such a declaration is sufficiently made by answers to leading ques­
tions. In such a case, the statements implied by the questions would
be treated as having been made by the person,giving hia assent,
though it might be that not on© word of such statements was
 VOL. Vir,] ALLAHABAD SERIES, 393

uttered by himself. In Regina v. Steele (1) it was decided tliat a

statoment made by a deceased person, under circumstances which queun-
wonld not render it admissible as a dying declaration, becomes E mpkkss
admissible if repeated in his presence and at bis request by the Abdullau.
person to whom it was previously made, and if assented to by the
deceased (presuming that he is than in such a state that, if he had
made a statement, it would have been admissible as an dying de­
claration).
Mr. G. E . A . Ross, for the appellant.— The signs cannot bo
regarded as “ conduct ” within the meaning of s. 8 of the Evidence
Act, because, in the first place, assuming them to amount to
statements,” (which was the highest point at which the prosecu­
tion can put them,) Explanaton litehovvs that they are not admis­
sible, since they did not “ accompany and explain acts other than
statements.” Further, the condition precedent: to their admis­
sibility as “ conduct” is that they should “ influence or be influ­
enced by any fact in issue or relevant fact,” and influence” cannot
be construed so loosely as to include everything which remotely
affects conduct: it must be confined to direct and immediate causes.
The signs here used were not the direct and natural r«sult of the
fact in issue, i.e., the murder, for they were the result of the ques­
tions put to the deceased. The prosecution are in fact attempting
to make out that the signs o were “ conduct ” and also to brinorr>
them in as ^•statements.” Jn regard to s. 32, the provisions of
the Act must, according to recognized principles, be construed
strictly, and the prisoner is entitled to the benefit of such cons­
truction. In this view, the signs cannot be taken to be “ verbal
statements,” In regard to the argument that they were an adop­
tion of the statements contained in the questions, it would be unsafe
to act upon such a principle in this country, though it might be
safe and reasonable in England. The admission of such a class of
evidence would be dangerous in the highest degree, considering
its necessarily indefinite character, and its consequent liability to
misapprehension and perversion. S. 119 of the Evidence Act indi-
cates that the Legislature intended the admission of such signs to
be subject to the condition of being made in open Court, so that
the Court trying the case may be in a position to test their mean-
(1) 12 Cos, Cr. Gag. 168,
 THE INDIAN LAW REi’OKTS. [VOL. VII.
39i

1S85 for itself; instead of depending upon the unverified impressions

....... . ' ' '***1
of others.
Q uicwn -

Eail’ HE83 The f o l l o w i n g judgments were deliverd by the Full Bench:—

V.
ASDCiiLAH. C. J . — I understand the question submitted to us
P k th k ra m ,
by tiie reference to come to this. When a witness is called who
deposes to having put certain questions to a person, the cause of
whose death is the subject-matter of the trial, which questions
have been responded to by certain signs, can such questions and
signs, taken together, be properly regarded as “ verbal statements”
under s. ^32 of the Evidence Act, or are they admissible under
any otlier sections of the same Act ?
I propose to deal first with the other aoctions to which refer­
ence has been made. It is contended that the questions which
were put to the deceased, and tho responses which she mado to
those questions, are ‘^facts’’ within the purview of ss. 3 and 9.
I do not, however, concur in this view. It appears to me that a
fact must be proved to be relevant before another fact can be
proved to explain its meaning ; and since, without words being
used, the signs could not be proved to be relevant, the words them­
selves are also not relevant.
Tho next question is, whether mere signs can bo regarded us
‘ ^conduct” within tho meaning of s. 8 . Upon this point it must
bo romeinbered that the 2 nd paragrajdi of that section mi»kes re­
levant the conduct of any jierson who is a party to any Suit or
proceeding “ in reference to such suit or proceeding, or in reference
to any faot in issue therein or relevant thereto.” And of course
the conduct of a party interested in any proceeding at the tilne
when the facts occurred out of v\hicli the proceeding arises, is ex­
tremely relevant, and therefore any conduct on the part of the
deceased in this case, which had any bearing on the circumstances
in which she met her death, would bo relevant. But the state of
things is this. She, being in a dying state at tho hospital, made,
in the presence of certain persons, the signs which have been re­
ferred to. It is clear that, taking these signs a/one, there is nothr
ing to show that they are relevant, because there is nothing M^hich
conneota them with the cause of death. Then it is argued that
since conduct is relavaut und.ei‘ certain circumstances, you may,
V O L . V I I .] A L L A H A B A D SERI ES. 395
1885
with reference to Explanation 2 of s. 8 , prove any statements inado
to the person whose conduct is in question. In order to decide Q ueen-

tliis point tlie language of s. 8 must be carefully considered. It is' EwrBKss

to the following e f f e c t T h e conduct of any party or of any AuBOLtAE.
agent to any party to any suit or proceeding, in reference to such
suit or proceeding, or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence against
vv^hom is the subject of any proceeding, is relevant, if such conduct
influences or is influenced by any fact in issue or relevant fact, and
whether it was previous or subsequent thereto. Explanation 1 .—
The word ‘ conduct’ in this section does not include statements,
unless those statements accompany imd explain acts other than
statements; but this explanation i»n ot to affect the relevancy of
statements under any other section of this Act. E xplanation 2.—
When the conduct of any person is relevant, any statement made
to him or in his presence or hearing, which afll'tiots such conduct, ^
is relevant.” Now the question here in issue is— Did Abdullah
kill the deceased by cutting her throat? The only conduct which ^
is alleged on the part of the deceased is, that she moved her hand
in answer to questions put to her by soma of tho persons at
hospital. If we went no further than this, there would be nothing g-j - _
to show that her conduct in liitiug hor hand either influenced or
was influenced by the fact in issue,— i. e., the cutting of her fchroat.
Then Explanation 2 is brought in ; but it is obvious that before ^
you can let in the words of a third person, you must show that the
■conduct which they are alleged to affect is relevant. And in the
present case it is clear that w itil you let in the words, the conduct
is not relevant, and therefore the words cannot be let in because
the condition precedent to their admissibility has not been satisfied^- O'
and that not having been dons, their whole basis fails. -ifeiiuc

1 of s. 8 points to a case in which a person whose /

Explanation
conduct is in dispute mixes up together actions and statements ;
and in such a case those actions and statements may be proved as ^ Js •
a whole. For instance, a person is seen running down a street in ^ ^
a w'oundod condition, and calling out the name of his assailant,;
and the circuisstances under which the injuries ^vere inflicted.
E e re what tho injured persou say« and w h a t he does m ay be taken, J
 the I N D I AN L A W R E PO R TS. [VOL. vir.

1885 togetlior and provetl as a wliolo. But tlio oaso would bo very dif­
Q 0 1 5 K N -
ferent if some piisaer-by stopped ]iini and sa<T(TC3 ted some name, or
Ejii’uEsa asked some question regarding the transaction. If a person wero
V.
A BDULLAH. found inalvinfT suoli statements without ;iny ([ues tion first bein^j
askod, tlien his statements mi^dit bo re<Tarded as a part of his con­
duct. But where the statement is made merely in response to some
question or sugojestion, it shows a state of thin introduced, not
by the fact in issue, but by the interposition o f some thing else.
For tlieso reasons I think that the si^nis made by the deceasod ciin-
not bo admitted by way of “ conduct” under s. 8 of the Evidence
Act.
I now turn to the other part of the argument,— that which re­
lates to s. 32.
In tlio first place, it is clear that s. ,32 was intended by the
framers of the A c t to provide for cases of “ dying declarations
that is to say, where a person mortally iujurod makes certaiu
statements regarding the cause and other circumstances of tho
injury, and then dies, These statements may bo given in evidenco
■under s. 32. If I had been compelled to hold that these signs
^vero not f.dmissible under s. 32, 1 should have regretted it,
because I feel that they are adniissil)Ie imder s. 32 or not at all.
1 think that the Legislature intended that such evidence should
be a d m i l t o d only within tho limits provided by that section, and
that if they cannot be brought under that, we ought not to search
too carefully for other provisions under which to admit them.
Tho statement, assuming it to bo such, was hero made by a
witness, that is, by one who was conscious, aud who know the
truth, aiul whoso evidenco would have been tho best possible if
she had continued to live. The only question would then have
been as to tho truth of her evidence. Of her competency to speak
tho truth of the matter, there could, of course, bo no doubt. But
she is dead, and cannot bo called as a w'itness, and the question
then arises whether you can, as it were, make her a witness not­
withstanding her death, and give in evidence tho statements which
she made. To make such a state of things possible, s. 32 of tho
Evidence Act was passed. That section says that the statement,
whether written or verbal, must be a statement as to relevant
facts. In the present case that conditiou is of course satisfied.
V o l . VII.] ALLAHABAD SERIES. 597

1885
The question then arises— Is the stateineut a verbal ” one?
Verbal” means by words. It is not necessarj that the words Q deen -
should be spoken. If the term used in the section W e r e o r a l,” ItMPUESS
v„
it might be that the statement must be confined to words spoken ABDUttAU.
by the month. But the meaning of verbal ” is something wider.
From the earliest times^it’ has been held that the words of another
person may bo so adopted by a witness as to be properly treated
as the words of the witness himself. The same objection which
is now made to the admission in evidence of these signs might
equally be made to the assent given by a witness in an action to
leading questions put by counsel. If, for example, counsel M'ero
to ask— “ Is this place a thousand miles from Calcutta?'’ and the
witness replied Y ^ ,” it might^be said that the witness jnade no,
statement as to the distance referred to. The objection to leading
questions is not that they are absolutely illegal, but only that they

afe unfair. The only question here is, whether the deceased, by
the signs of assent which she made.^adopted tlie verbal statements kfkjru .
employed by the questions ? I think it must, be held J h at she did /^ ^ ,
so. I have felt some difficulty in arriving at this c o n c l u s i o n , ^
because it is plain that evidenco of this description requires strong^^ ^
Rafeguards before it can properly bo accepted, lint since tho ^
deceased might undoubtedly have adopted the words of the |
Magistrate by express words, such as Y e s /’ though even in thafc/j.
oase the words in which the statement was actpally made w o u ld ^ ^ ^ ^ •
viot have been her own, 1 think she might equally adopt them hy
sijrns also. On these grounds, I would answer the reference
ihe amended foi-m, which I indicated at the outset^ in the affir-
I
mative. •
^ p I
J.— I also am of opinion that the signs made by
S tr a ig h t,
deceased Dulari, in response to ihe^questions put to her,'‘ may be
given in evidence, with the object of supplying material from
which tlie inference may properly be drawn, that she either adopt*
ed or negatived the matter of such questions. I f the significance
of these signs is established satisfactorily to the mind of the Courts
then I think that such questions, taken with her assent or dissent
to theoi, clearly proved, constitute a “ verbal statement” as to the
cause of her death, witbm the meaniDg of s. 32 of the Evidence
 898 t h e INDIAN LAW KEP0UT3. [VOL. Vll.
1885 Statements by the wifcnesf?GS n,s to their iniproasions of what
thoso signs nioanfc were, in my ja<lgmont, iTiadniinsible, and should
Kmimu.;s3 be eliiiiiiiiit.od; hut, assuniiiio; tluii iho quoaUoiis put to tlio de-
A bduli^ah, coHsed were respondod to by her in ftnoh a manner aa to leave no
doubt in the mind of tho Court as to lier moaiiin;!,^, thou I consider
it is not straining tlio conHtrnction to hold that, tho circumstances
are covered by s. 32. It has bean held more than once in England
that it is no objection to tbo admissibility of a dyiiig declaration
that it was made “ in answer to leading questions or obtained by
earnest and preHsinf^ solic.itations.” — (Russell On Crimes, vol. 3,
p. 2(>!)); and I am not disposed, as we have remarked, to draw
such a purely t.echnical distinction as to say that while questions
adopted or negatived by a mere “ Yes” or “ N o” constitute a
“ verbiil statement/’ within s. 32, they become inadmissible when
pssent or dissent is expressed by a nod or a shake of the head.
In the view of the matter I have indicated, it is inmeeessay to
discuss 8. 8 of the {Evidence Act, and Ivvould accordingly answer
the qiiostion of tho reference as now amended in tho affirma­
tive.
O ldfticlt), J.— 1 entirely concur in tho answer given to thtf
retVu'enco by the learned Chief Justice and in his reasons for that
answer.
BRomiUHSl', J .— I alsa coneuy.
/
Mahmood, j . — J have arrived at tho aattie oonclusion a.s my
learned brethren 5 but 1 am obliged to aay that my reasons for
doing so are not precisely the same. I should accept the view
expressed by tho learned Chief Justice, if we had not to interpret;
the language of the statute, and if I did not feel unable to extend
the meaning of the term “ verbal ” in a. 32 of tho Evidence Act
beyond that of “ a word.” I take it to bo a fundamental prin­
ciple of the interpretation of statutes that their language must
I '' be understood in its most ordinary and popular acceptation. In
Buch a matter, I would, in general, willingly defer to the opinions
of those whose mother-tongue is English, but, silting here as a
,'i Judge, I am bound to form tho best opinion that X can, and to act
on such opinion, and to me “ verbal” cannot mean more than “ by
■ means of a word or words.” Nodding tho head or waring th«s
 VOL V II.] A L L A H A B A D SE R IE S. 39D

Jifind is not a word. 1 tiierorore put'aside cl. ( 1) of s. 32^ wlicli

can only apply to “ statements written or verbal.” qokkn-
I proceed to explain my roason.s for lioldiu" that nevertliele.es I'-mpuk.ss
my answer to the present reference should be in the affirmative.
In the first place, let me refer to s. 2 of the Evidence Act, which
in cllect prohibits the employment of any kind of evidence not
specifically authorised by the Act itself. This is tlie opposite of
the rule adopted in continental countries, such as France, where
everytiiing is admissible as evidence which the law docs not ox-
pre.ssly exclude. Our Act has followed the English rule, which
is thus expressed in s. 5 :- —“ EviJence may bo ^iven in any suit
or proceeding of the existence or iioa-existence of every fact in
i.ssue, and of such other facts as a*’o hereinafter declared to be
relevant, and of no others.” The learned Public Proseoutor no
doubt appreciated the importance of this provision, when ho
addressed us on what 1 think he must have regarded
vJ as the stronir-
O

est part of his argument, I moan when he tried to show that tlie
signs used by the deceased were admissible in evidence as part of
the res gcstai, under the earlier sections of the Act to which he
referred. Now s. 8 says x\ny fact is relevant wlwh shows
or constitutes a motive or preparation for any fact in i.ssne or
relevant fact. The conduct of any party, or of any agent to any
party, to any suit or proceeding, in reference to such suit or pro­
ceeding, or in reference to any fact in issue therein or relevant
thereto, and the conduct of any person an offence against whom
is the subject of any proceeding, is relevant, if such conduct influ­
ences or is influenced by any fact in issue or relevant fact, and
whether it was previous or subsequent thereto.” It will be useful
to analyse the leading terms employed in this section. In the
first place, what is a “ fact?” This question is answered by s. ‘d,
which defines fact” to mean and in o lu d e a n y thing, state of
things, or relation of things, capable of being perceived by tho
senses,” and “ any mental condition of which any person is con­
scious.” This, then, is the only sense in which, in interpreting tho
statute, I can understand the word fact.” The next leading
w'ord in s. 8 is party,” I understand this to include not only
the plaintiff and the defendant in a civil suit, but parties in a
'criminal prosecution, as, for instance, a prisoner charged' with
64
 THE INDIAN LAW REPDKTS. [VOL. vn.
400

1885 iTinrder. S. 8 provides tliat t,lio term is to incliiclo any ono against
l^UEBN-
whom an offeiioo is tlie subject of any prooocdinpr, and tlie reason
KjU’UUSS why tlio Lo^islaturo said this was probably the fact that by a puro
t).
A H liD I t L A R .
legal technicality tho Crown occupioa in criminal matters a posi­
tion analogona to that of a plaintitl:’ in a civil suit.
Let mo now refer to lllm tration (/) of s. 8 , Avhich runs thus : - -
“ The (piestion is, whether A rol)becl B . Th« facts that, after
AViis robbed, (7 s a i d in presenco— M,he Police are coming to look
I'or the man who robbed i i ,’ — and that iminodiatoly afterwards 4
ran away, are relevant.”
!Now, if I w^ore to hold that tho word '‘ condnct,” as used iin
s. i?, meant only eondnot directhj re.snlticg from tho oircumstanoes iu
whicdi the crime was committed and without any intervening cause,
I should bo holding that this Illustration was at variance with tho
scction wliicli it was designed to explain. For although con-
duct is undoubtedly ^‘ influoneod ” by tho fact in issue, it is only
influenced through tho intervention of a third person C. Hence I
conclude that “ conduct” does not mean only such conduct as is
directly a^nd immediately inflaoncod by a fact in issue or relevant
fact. Tho present case is tho same in principle as that given in the
Illustration. Tho deceased wotdd not have acted as she did if ifc
had not been for the action of those who rpiostioned her. Nor do
1 sec any diH'orenee in ])rinciple between the act of A in running
away when told that tho ))olico were coming, and tho !ict of the
deceased in moving her hand iu answer to tho questions. Both
equally scem to mo to be cusos of conduct within tho meaning of s. 8 .
Tho Evidenco Act was principally tho work of Sir James Ste­
phen, ono of tho most eminent of European jurists. It appears to
ino that in several particulars his method of treating qnestions of
evidence differs from that which is common among English law­
yers. Under the English law, a tlyiug declaration, even when
consisting of w'ords, would be admissible only as an exception to
tho general rule which oxolude all bat direct evidence. Tho prin­
ciple of the Evidence Act is different. S, 6 l) provides that “ oral
tividence must, iu all cases whatever, be d i r e c t t h a t is to say,
the evidence of the senses of tho person who is called as a witness.
This is, so far, only a repetitioa of the English Law, But an
V o l . V I I .] Al lah ab ad s e r ie s . 401

ordinary Englisli writer on the Law of Evidence would classify ssi

S2 and 33 as exceptions or provisos to s. 60. The framers of the Q d e e m --
Evidence Act, on the other hand, regarded the facts referred to in EiiPiiEsa
■y.
those sections as independent indicia of truthj and furnishing iu
themselves direct grounds for legitimate inference.
For the risasoils which 1 have given above, I hold that the sign^
made by the deceased were the conduct of a ^'person an offence
against whom was the subject of any proceeding,” and that they
are therefore relevant under s. 8 of the Evidence Act. There
remain the question, whether the questions put her were adoiissiblei
and whether she can be considered to have adopted the statements
which they implied. Now, Explanation 2 to s. 8 provides that
when the Conduct of any person is relevant, any statement made
to him or in his presence and hearing, which affect silch conduct^
is relevant.” I confess that I am quite Unable to hold that for
“ when ” you mtlst read “ before.” If you read the section as I doj
the law stands thus. The coiiduct of the person aii offence against
whom is being investigated is relevant. The question ^Vhether it
is intelligibla or not arises afterwards, and the oilly way of ascer­
taining its meaning is to admit What E o:planatim 2 sf|^ys may be
admitted, namely, statements made to, or in the presence and hear­
ing of, the person and which affect his condiict. This can oiily be
done by taking the questions word for word, so as to explain, the
tiieaning of the conduct which they affected.
Finally, 1 may add that if s. 8 , with the Explanations contained
in it, were not sufficient to justify the view which I take of
the question referred to the iTull Bench, I should have relied on
the provisions of s. 9, in order to allow ati explanation of the meau-*
ing of the sigtis. Iil conclusion, 1 feel that, although what 1 may
call the principle of exclusion adopted by the Evidence Act,—
the principle that all evidence should be excluded which the Act
does not expressly authorise, is the safest guide in regiird to tha
admissibility of evidence, yet it should not be so applied as to exclude
matters which may be essential for the ascertainment of truth*
Adopting an expression once used by Mr. justice Story, 1 think
that the Law of Evidence would not be worthy of its name if it
made possible any such result. My answer to the reference is in
the affirmative*