Introduction 

• This is a landmark judgment which lays down that the signs and gestures made by the deceased amount to dying declaration under Section 32 (1) of Indian Evidence Act, 1872.  
• The Judgment was delivered by a 5-judge bench of Allahabad High Court consisting of Chief Justice W. Comer Petherman, Justice Straight, Justice Oldfeld, Justice Brodhurst and Justice Mahmood.   

Facts   

• The present case pertains to the admissibility of dying declaration made by the deceased in the facts which are peculiar in this case. 
• The question in this case was whether Abdullah killed 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. 
• Thus, the matter before the Court was whether the movement of hand of the deceased i.e. signs made by the deceased amount to dying declaration under Section 32 (1) of Indian Evidence Act, 1872 (IEA).

Issues Involved

• When the cause of death is responded by signs, can such question and signs taken together be properly regarded as “verbal statements” under Section 32 (1) of IEA? 
• Whether mere signs can be regarded as ‘conduct’ under Section 8 of IEA?

Observation

• The opinion of Chief Justice W. Comer Petherman was as follows: 
  • The Chief Justice while analyzing if the conduct of movement of the hand of the accused in answer to the question amounts to conduct under Section 8 of IEA held that: 
    • Section 8 of IEA provides that any conduct which influences or is influenced by any fact in issue or relevant fact shall be relevant. 
    • In the present facts the Court held that there would be nothing to show that the conduct of lifting the hand either influenced or was influenced by fact in issue i.e. the cutting of her throat. 
    • In those cases where the answer is made in response to the questions or suggestions, it shows a state of things introduced, not by fact in issue but by interposition of something else. Thus, the signs cannot be admitted as “conduct” under Section 8 of IEA. 
  • The Court further analyzed if the signs amount to dying declaration under Section 32 of the IEA: 
    • Section 32 of IEA provides that the statement whether written or verbal must be statement as to relevant facts. 
    • The meaning of the term “verbal” is wider. 
    • The Court held that 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. 
    • The Chief Justice held that these signs must be adopted as dying declaration. 
• The above was concurred by Justice Straight, Justice Oldfled and Justice Brodhurst  
• Justice Mahmood gave concurring opinion 

Conclusion 

• This is a landmark judgment which lays down that the signs made by the deceased person would amount to dying declaration. 
• The Court also held that the signs made would not fall under conduct under Section 8 of IEA as this conduct is not influencing or influenced by any fact in issue or relevant fact.