Q.

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?

If a person was found making such statement without any question first being asked his

statement 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 some thing else. For these reasons, I

think that the signs made by the accused cannot be admitted by way of "conduct" under

section 8 of the Evidence Act.

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.