W. Comer Petheram, C.J.
1. I understand the question submitted to us by the 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 Section 32 of the Evidence Act, or are they admissible under any other sections of the same Act
2. I propose to deal first with the other sections to which reference has been made. It is contended that the questions which were put to the deceased, and the responses which she made to those questions, are 'facts' within the purview of Sections 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 themselves are also not relevant.
3. The next question is, whether mere signs can be regarded as 'conduct' within the meaning of Section 8. Upon this point it must be remembered that the 2nd paragraph of that section makes relevant the conduct of any person who is a 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 of course the conduct of a party interested in any proceeding at the time when the facts occurred out of which the proceeding arises, is extremely 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 be relevant. But the state of things is this. She, being in a dying state at the hospital, made, in the presence of certain persons, the signs which have been referred to. It is clear that, taking these signs alone, there is nothing to show that they are relevant, because there is nothing which connects them with the cause of death. Then it is argued that since conduct is relevant under certain circumstances, you may with reference to Explanation 2 of Section 8, prove any statements made to the person whose conduct is in question. In order to decide this point the language of Section 8 must be carefully considered. It is to the following effect: 'The conduct of any party or of any 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 to any person an offence against whom is the subject of any proceedings, 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 and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his presence or hearing, which affects 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 some of the persons at the hospital. If we went no further than this, there would be nothing to show that her conduct in lifting her hand either influenced or was influenced by the fact in issue,--i.e., the cutting of her throat. 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 until 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, and that not having been done, their whole basis fails.
4. Explanation 1 of Section 8 points to a case in which a person whose conduct is in dispute mixes up together actions and statements; and in such a case those actions and statements may be proved as a whole. For instance, a person is seen running down a street in a wounded condition, and calling out the name of his assailant, and the circumstances under which the injuries were inflicted. Here what the injured person says and what he does may be taken together and proved as a whole. But the case would be very different if some passer-by stopped him and suggested some name, or asked some question regarding the transaction. If a person were found making such statements without any question first being asked, then his statements might be regarded as a part of his conduct. But where the statement is made merely in response to some question or suggestion, it shows a state of things introduced, not by the fact in issue, but by the interposition of something else. For these reasons I think that the signs made by the deceased cannot be admitted by way of 'conduct' under Section 8 of the Evidence Act.
5. I now turn to the other part of the argument,--that which relates to Section 32.
6. In the first place, it is clear that Section 32 was intended by the framers of the Act to provide for cases of 'dying declarations;' that is to say, where a person mortally injured makes certain statements regarding the cause and other circumstances of the injury, and then dies. These statements may be given in evidence under Section 32. If I had been compelled to hold that these signs were not admissible under Section 32, I should have regretted it, because I feel that they are admissible under a. 32 or not at all. I think that the Legislature intended that such evidence should be admitted only within the 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. The statement, assuming it to be such, was here made by a witness, that is, by one who was conscious, and who knew the truth, and whose evidence would have been the best possible if she had continued to live. The only question would then have been as to the truth of her evidence. Of her competency to speak the truth of the matter, there could, of course, be no doubt. But she is dead, and cannot be called as a witness, and the question then arises whether you can, as it were, make her a witness notwithstanding her death, and give in evidence the statements which she made. To make such a state of things possible, Section 32 of the 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 condition is of course satisfied. The question then arises--Is the statement a 'verbal' one? 'Verbal' means by words. It is not necessary that the words should be spoken. If the term used in the section were 'oral,' it might be that the statement must be confined to words spoken by the mouth. But the meaning of 'verbal' is something wider. From the earliest times it has been held that the words of another person may be 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 were to ask--'Is this place a thousand miles from Calcutta?' and the witness replied 'Yes,' it might be said that the witness made no statement as to the distance referred to. The objection to leading questions is not that they are absolutely illegal, but only that they are unfair. The only question here is, whether the deceased, by the signs of assent which she made, adopted the verbal statements employed by the questions? I think it must be held that she did so. I have felt some difficulty in arriving at this conclusion, because it is plain that evidence of this description requires strong safeguards before it can properly be accepted. But since the deceased might undoubtedly have adopted the words of the Deputy Magistrate by express words, such as 'Yes,' though even in that case the words in which the statement was actually made would not have been her own, I think she might equally adopt them by signs also. On these grounds, I would answer the reference in the amended form, which I indicated at the outset, in the affirmative.
7. I also am of opinion that the signs made by the deceased Dulari, in response to the questions put to her, may be given in evidence, with the object of supplying material from which the inference may properly be drawn, that she either adopted or negatived the matter of such questions. If the significance of these signs is established satisfactorily to the mind of the Court, then I think that such questions, taken with her assent or dissent to them, clearly proved, constitute a 'verbal statement' as to the cause of her death, within the meaning of Section 32 of the Evidence Act. Statements by the witnesses as to their impressions of what those signs meant were, in my judgment, inadmissible, and should be eliminated; but, assuming that the questions put to the deceased were responded to by her in such a manner as to leave no doubt in the mind of the Court as to her meaning, then I consider it is not straining the construction to hold that the circumstances are covered by Section 32. It has been held more than once in England that it is no objection to the admissibility of a dying declaration that it was made 'in answer to leading questions or obtained by earnest and pressing solicitations.'--(Russell On Crimes, vol. 3, p. 269); and I am not disposed, as we have remarked, to draw such a purely technical distinction as to say that while questions adopted or negatived by a mere 'Yes' or 'No' constitute a 'verbal statement,' within Section 32, they become inadmissible when assent or dissent is expressed by a nod or a shake of the head. In the view of the matter I have indicated, it is unnecessary to discuss Section 8 of the Evidence Act, and I would accordingly answer the question of the reference as now amended in the affirmative.
8. I entirely concur in the answer given to the reference by the learned Chief Justice and in his reasons for that answer.
9. I also concur.
10. I have arrived at the same conclusion as my learned brethren; but I am obliged to say that my reasons for doing so are not precisely the same. I should accept the view expressed by the 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 Section 32 of the Evidence Act beyond that of 'a word.' I take it to be a fundamental principle of the interpretation of statutes that their language must be understood in its most ordinary and popular acceptation. In such a matter, I would, in general, willingly defer to the opinions of those whose mother-tongue is English, but, sitting here as a Judge, I am bound to form the best opinion that I can, and to act on such opinion, and to me 'verbal' cannot mean more than 'by means of a word or words.' Nodding the head or waving the hand is not a word. I therefore put aside Clause (1) of Section 32, which can only apply to 'statements written or verbal.'
11. I proceed to explain my reasons for holding that nevertheless my answer to the present reference should be in the affirmative. In the first place, let me refer to Section 2 of the Evidence Act, which in effect prohibits the employment of any kind of evidence not specifically authorized by the Act itself. This is the opposite of the rule adopted in continental countries, such as France, where everything is admissible as evidence which the law does not expressly exclude. Our Act has followed the English rule, which is thus expressed in Section 5:'Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue, and of such other facts as are hereinafter declared to be relevant, and of no others.' The learned Public Prosecutor no doubt appreciated the importance of this provision, when he addressed us on what I think he must have regarded as the strongest part of his argument, I mean when he tried to show that the signs used by the deceased were admissible in evidence as part of the res gestce, under the earlier sections of the Act to which he referred. Now Section 8 says: 'Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue 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 proceeding, 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 influences 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 Section 3, which defines 'fact' to mean and include 'anything, state of things, or relation of things, capable of being perceived by the senses,' and 'any mental condition of which any person is conscious.' This, then, is the only sense in which, in interpreting the statute, I can understand the word 'fact.' The next leading word in Section 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 murder. Section 8 provides that the term is to-include any one against whom an offence is the subject of any proceeding, and the reason why the Legislature said this was probably the fact that by a pure legal technicality the Crown occupies in criminal matters a position analogous, to that of a plaintiff in a civil suit.
12. Let me now refer to Illustration (f) of Section 8, which runs thus:
The question is, whether A robbed B. The facts that, after B was robbed, C said in A's presence--'the police are coming to look for the man who robbed B,'--and that immediately aferwards A ran away, are relevant.
13. Now, if I were to hold that the word 'conduct,' as used in Section 8, meant only conduct directly resulting from the circumstances in which the crime was committed and without any intervening cause, I should be holding that this Illustration was at variance with the section which it was designed to explain. For although A's conduct is undoubtedly 'influenced' by the fact in issue, it is only influenced through the intervention of a third person C. Hence I conclude that 'conduct' does not mean only such conduct as is directly and immediately influenced by a fact in issue or relevant fact. The present case is the same in principle as that given in the Illustration. The deceased would not have acted as she did if it had not been for the action of those who questioned her. Nor do I see any difference in principle between the act of A in running away when told that the police were coming, and the act of the deceased in moving her hand in answer to the questions. Both equally seem be me to be cases of conduct within the meaning of Section 8.
14. The Evidence Act was principally the work of Sir James Stephen, one of the most eminent of European jurists. It appears to me that in several particulars his method of treating questions of evidence differs from that which is common among English lawyers. Under the English law, a dying declaration, even when consisting of words, would be admissible only as an exception to the general rule which exclude all but direct evidence. The principle of the Evidence Act is different. Section 60 provides that 'oral evidence must, in all cases, whatever, be direct;' that is to say, the evidence of the senses of the person who is called as a witness. This is, so far, only a repetition of the English Law. But an ordinary English writer on the Law of Evidence would classify Sections 32 and 33 as exceptions or provisos to Section 60. The framers of the Evidence Act, on the other hand, regarded the facts referred to in those sections as independent indicia of truth, and furnishing in themselves direct grounds for legitimate inference.
15. For the reasons which I have given above, I hold that the signs 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 Section 8 of the Evidence Act. There remain the question, whether the questions put her were admissible, and whether she can be considered to have adopted the statements which they implied. Now, Explanation 2 to Section 8 provides that 'when the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affect such conduct, is relevant.' I confess that I am quite unable to hold that for 'when' you must read 'before.' If you read the section as I do, the law stands thus. The conduct of the person an offence against whom is being investigated is relevant. The question whether it is intelligible or not arises afterwards, and the only way of ascertaining its meaning is to admit what Explanation 2 says may be admitted, namely, statements made to, or in the presence and hearing of, the person and which affect his conduct. This can only be done by taking the questions word for word, so as to explain the meaning of the conduct which they affected.
16. Finally, I may add that if Section 8, with the Explanations contained in it, were not sufficient to justify the view which I take of the question referred to the Full Bench, I should have relied on the provisions of Section 9, in order to allow an explanation of the meaning of the signs. In conclusion, I feel that, although what I may call the principle of exclusion adopted by the Evidence Act,--i.e., the principle that all evidence should be excluded which the Act does not expressly authorise, is the safest guide in regard to the 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, I 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.