1. (After stating the prosecution case his Lordship proceeded:) Mr. Jethmalani, the learned Advocate who appears for the appellants, has contended before us that the learned Judge committed an illegality by admitting inadmissible evidence, namely, the statement Exht. H. alleged to have been made by Sushilabai, and that this would entitle usto go behind the verdict. Mr. Jethmalani has contended that as the Police Sub-Inspector Mr. Baikrishna Vithal Shinde did not keep a record of the questions put by him to Sushilabai and of the answers given by Sushilabai to those questions, there is no certainty that what purports to be her dying declaration Exht. H was truly and fully a statement of Sushilabai and that therefore the statement Exh. H is not admissible under section 32 of the Indian Evidence Act as a dying declaration of Sushilabai. According to Mr. Jethmalani there was a grave procedural defect in the trial as the learned Judge admitted inadmissible evidence on the record, namely the abovementioned statement of Sushilabai Exh. H as a dying declaration.
2. We see considerable force in this contention of Mr. Jethmalani. Exht. H, the statement of Sushilabai alleged to have been made by her before the Police Sub-Inspector Mr. B. V. Shinde in the hospital, reads as follows :
'I am as above and reside at the above address with my husband. To-day at 3-30 p.m. I was alone in the house and my husband had gone out for work, when one Dukhai Bhayya came near my house with four other persons who were with him and told them 'This is not that house but this house' and pointed out my house and he then went away. All the four persons entered my house and asked me where my husband was. I asked them what they wanted and told them that my husband had gone to duty.
Two of the persons had a knife in their hand and two of them had iron round shaped things.
One of them stabbed me twice in my stomach with knife and had caught hold of my neck. The other two men kicked me with legs and removed one gold chain, one ring and silver anklets from my less, and told me why I was fighting with the 'Doodwala Bhayya'. I then fell unconscious when they ran away.
All the four persons were young and of fair complexion and all were wearing suit pants. The man who stabbed mo was wearing a woolen pant and a shirt. I will be able to identify them if shown to me. I cannot give correct description of these persons now.
I will be also able to identify the ornaments if shown to me.
Out of the four persons two persons were seen sitting on the house of Shrinath Bhayya.
I now lodge my complaint and request police to take action according to law.
The above statement was read over to me explained in Hindi and found correct.'
3. In his evidence the Sub-Inspector has explained as to how he recorded this statement of Sushilabai, Ho was questioning. Sushilabai in Hindi and Sushilabai was replying to, those questions in Hindi. She was in a position to understand the questions which were put to her and she was giving rational answers to those questions. The Sub-Inspector has deposed that he is 'quite familiar' with the Hindi language and he translated Sushilabai's replies in English. After recording Sushilabai's statement in the manner stated above the Sub-Inspector interpreted in Hindi the English record of that statement to Sushilabai. She admitted the said Hindi interpretation to be a correct interpretation of her statement. Thereafter her thumb impression was taken at the foot of that statement. This was how the statement Exht. H which 'purports to be a statement of Sushilabai was recorded, and the question is whether it is admissible under Section 32 of the Indian Evidence Act as a dying declaration of Sushilabai.
4. We have considerable hesitation in accepting Exht. H to be an accurate and reliable recordof what Sushilabai might have expressed in answer to the questions which might have keen put to her by the Sub-Inspector. We are using the phraseology 'What Sushilabai might have expressed in answer to the questions which might have been put to her' because we have no record of the questions which were put to her and the answers which were given by her in her own words. The Sub-Inspector frankly admitted in his evidence that he 'did not remember the exact wording of all the questions and answers'. The Sub-inspector was not able to remember the wording of any question put by him to Sushilabai and that was natural. The date on which the statement Exht, H was recorded was 25th September 1955 and the date on which the Sub-Inspector gave evidence in the court was 16th April 1956. The distance of time between the two events was more than six months; and in the absence of any record of the questions put by him to Sushilabai and of the answers given by Sushilabai, it was impossible for the Sub-Inspector to say, and for the court to know, how the Sub-Inspector had worded his questions and how precisely Sushilabai had replied to those questions. In these circumstances, we feel there is no certainty that the Police Sub-Inspector who translated in English Sushilabai's replies given by her in Hindi did not put his own gloss upon what was expressed by Sushilabai. When one expresses in his own words and in a different language what is stated by another person, there is always a probability which cannot be ignored that with the best of intentions he may unwittingly put his own gloss or construction upon the other person's statement in order perhaps to make that statement more intelligible, understandable or logical. When the Sub-Inspector knew enough Hindi so as to be able to ask questions in that language to Sushilabai and understand her replies to those questions, he should have taken down the questions and answers in the words in which the questions were asked and the answers were given. It might be that he might have thought that if he translated into English the replies which Sushilabai gave in Hindi instead of recording those replies in the words of Sushilabai herself, it might make a more satisfactory or grammatically more correct and consistent reading. But grammatical correctness or consistency of the language used by a translator of a statement can be no compensation for the infirmity that what we have before us in that case is not the statement in the actual words of the maker thereof, in other words, not the statement of the deceased herself. Section 32 of the Indian Evidence Act makes admissible in evidence a statement of a deceased person. That statement may Be an oral statement or a written statement or a statement reduced to writing; and if it is a statement reduced to writing by a person other than the maker thereof, it must be a statement in the words used by the person making it and not in the words of a person reducing it to writing. If it is written out in the words of the person reducing it to writing, it cannot strictly and properly be called a statement of the deceased person. .
5. In Reg. v. Mitchell. (1892) 17 Cox CO 503, Mr. Justice Cave held that a statement giving the substance of questions put to, and answers given by, the deceased person was not admissible in evidence as a dying declaration and that such a declaration must, in order that it may be admissible in evidence, be in the actual words of the deceased, and if questions are put the questions and answers must both be given, in order that it may appear how much was suggested by the examiner and how much produced by the person making the declaration.
6. In King v. Smith. (1901) 17 TLR 522,the defendant performed an illegal operation uponMrs. Bromley Smith with intent to procure hermiscarriage and blood-poisoning was set up fromwhich she died. On the night of March 22, 1901, Dr. Bonney who was attending on Mrs. Smith being of opinion that there was no hope of her recovery called in Mr. Cust, a Magistrate, in orderthat she might make a statement in his presenceif she desired to do so. A statement was madeby her in the presence of Mr. Gust and Dr. Bonney.Now, one of the grounds upon which an objectionwas taken against the admissibility of Mrs. Smith'sstatement in evidence was that the statement wasmade in answers to questions which were nottaken down. Mr. Justice Cave's ruling in Reg. v.Mitchell (A), was followed and the statement washeld inadmissible.
7. In Reg. v. Charlotte Smith (1865) 10 Cox CC 82, although five learned Judges delivered judgments, we do not find any observations in those judgments dealing with the contentions pressed on behalf of the accused that the statement of the deceased woman was not admissible on the ground that leading questions were put to the woman. Reg. v. Charlotte Smith (C), cannot, therefore, be an authority for holding that a statement like Exh. H, in which we cannot rule out a probability of leading questions having been asked, is admissible in evidence as being a statement of the deceased woman.
8. In Emperor v. Premananda Dutt : AIR1925Cal876 , it was held that, where in recording a dying declaration, the Magistrate appeared to have put questions which were not all recorded though the answers were recorded, the procedure was open to objection as the questions might have been leading questions and it was observed that in the condition of a person making a dying declaration, there was always a great danger of leading question being answered without their force and effect being freely comprehended. The High Court said that in such circumstances the form of the declaration should the such that it would be possible to sec what was the question and what was the answer, so as to discover how much was suggested by the examining Magistrate and how much was the production of the person making the statement.
9. It is true that Phipson in his 'Evidence' (9th Edition) at page 333 says :
'The declarations may be oral or written; and they are not rendered incompetent (though their weight may be impaired) by being made in response to leading question.'
It is also true that Halsbury in vol. 9, on page 452 in paragraph 771 says:
'It is no objection to the admissibility of a dying declaration that it is made in answer to leading Questions, though that fact may affect its weight as evidence,'
But even so, the court should know what precisely the questions were, though they might be leading questions. Unless the form and the words of a question are known, the effect of an answer may not be appreciated and the value of the answer may not be correctly assessed by the court; and this must affect the evidential value of the answer. If the recording Magistrate or Sub-Inspector asks a question in a leading manner and if the injured person who often is seriously hurt and is on the threshold of death merely nods in reply as is not unlikely one cannot be certain that the nod was made after fully comprehending the question put to him. Such being quite a conceivable position, if the statement of a deceased person is a resultof questions put to him and answers given by him without any record being kept of those questions and answers there is always a probability of some questions at least being put to the deceased in a leading manner and answers elicited from him by nods; and in such a case it would be difficult to say that what purports to be a statement of the deceased was made by him intelligently or of his own free Will. As I just pointed out, there is judicial opinion which shows that if leading questions are put to a deceased.' the weight of the answers would be affected (Phipton's 'Evidence' 9th Edition, page 333, and Halsbury, Vol. 9, rage 452, paragraph 771).
10. The learned Judge in his charge to the Jury did not caution the Jury, against a probability, which was a probability to be considered, that leading questions might have been put to Sushilabai and that in that case the evidential value of the statement Exh. H might be affected. The Sub Inspector has deposed that he is 'quite familiar' with the Hindi language. He put questions to Sushilabai in Hindi. He understood the answers which Sushilabai gave in Hindi. There is nothing to show that the Sub Inspector is not familiar with the Devnagari script.
That being so, it is not understood why the Sub Inspector should not have recorded the statement of Sushilabai in Hindi in the actual words of Sushilabai. The Sub Inspector says: 'It is not our practice to record such statements in the form of questions and answers'. Such practice, as is referred to by the Sub inspector, must be deprecated if it prevails. Mr. Gumaste for the State contends that in practice it would be inconvenient to record the statement of a deceased in the language in which it is made by the deceased.
We do not see what inconvenience there could arise if the Sub Inspector or the Magistrate recording the statement knows, understands and speaks the language spoken by the deceased and is also familiar with the script of that language. But even assuming that there might be some inconvenience in doing so, the said inconvenience can be no justification for denying to the courts the benefit of the actual words of the deceased which it is so essential to know for the proper administration of justice.
The statement of a deceased would in its literal and natural sense mean a statement in the words of the deceased, and whenever it is practicable to record the statement in those words, there could be no valid excuse for not doing so, when the life and death of a prisoner at the bar depend upon the construction of that statement. When, however, the Sub-Inspector or the Magistrate recording the statement does not know the script of the language spoken by the deceased, though he understands and speaks that language, he may record the statement in English, and if it is recorded as the result of questions put to the decreased and the answers given by the deceased, those questions and answers must always be recorded to enable the courts to understand the full significance of the statement.
When the statement is the result of the replies to the questions, it is not possible to assess fully the value of the replies without knowing what the questions were, since the replies are always given with reference to the questions put. It is, therefore, essential, in our view, for proper compliance with the provisions of section 32 of the Indian Evidence Act to record the questions in the precise words in which the questions are put and take down the answers in the actual words in which the answers are given, when the state-merit is the result of questions put and answers given.
In the view which we are' taking we do not stand alone, but are fortified by a decision of the Calcutta High Court in Emperor v. Premanand Dutt (D) and English decisions. It is of utmost importance that where a person under expectation of death gives answers in words to a Magistrate or a police officer recording his statement, the court should know those words, because those would ultimately be the words of a deceased person. If answers are given by gestures the court should know what those gestures were.
The interpretation of those answers by gestures would ultimately be a matter for the court and not for the investigating Sub Inspector. The result therefore is that we must uphold -the contention of Mr. Jethmalani that Exh. H, which purports to be a statement of the deceased Sushilabai is not admissible under Section 32 of the Indian Evidence Act as a dying declaration, as we do not precisely know what questions were put to her and do not also know what the actual words were, in which replies to those questions were given by her. In our view, the learned Judge by admitting Exh. H as a dying declaration of Sushilabai admitted inadmissible evidence on the record and put that evidence before the Jury. This, in our view would entitle us to go behind the verdict of the Jury.
(The rest of the judgment is not material for this report).
11. Order accordingly.