The case of ‘Queen Empress v. Abdullah (1885), is a very important case in Evidence law. It was Allahabad High Court’s case and the bench was CJ. W C Petheram, Straight, Oldfield, Brodhurst, and Mahmood.
The case was that a woman was attacked by a person named Abdullah, he cut her throat, and when she was in hospital, she made sign by moving her hand in answer to questions put to her by some of the persons at the hospital.
The question before the bench was that 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?
Section 32 of the evidence act talks about dying declaration, i.e. the statement by a person who is about to die.
The Court’s Answer
- It was 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 Section 3 and 9. (Section 3 is interpretation clause and Section 9 talks about facts necessary to explain or introduce relevant facts.)
But the court did not accept this contention, and said 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.
- The next question was, whether mere signs can be regarded as “conduct” within the meaning of Section 8.
(Section 8 provides that 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.)
On this the court said 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, in the present case, the deceased 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 was 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.
(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. Further than this, there is 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, the court said that, 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.
A fine distinction between Statement and Conduct
The court while distinguishing statement and conduct explained that, 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.
(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.)
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, the court refused to accept that the signs made by the deceased can be admit by way of “conduct” under Section 8 of the Evidence Act.
- After considering above mentioned provisions, the court moved to Section 32 of the Act, and the court said, 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.
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, the court 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?
Conclusion of Justice Petheram
Justice Petheram finally concluded that evidence of this description (made by sign) 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.”
Queen Empress v. Abdullah (1885) ILR 7 All 385