Recording the testimony of witness unable to communicate verbally: What Bombay HC held
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Recording the testimony of witness unable to communicate verbally: What Bombay HC held

Bar & Bench

Omkar Gokhale

The Bombay High Court recently reiterated the procedure to be followed for recording the testimony of a witness who is unable to communicate verbally.

In case concerning the alleged rape of a deaf and mute woman, Justice M Dhavale highlighted that such testimony should be recorded with the aid of an interpreter, who should also be administered an oath that “he would fully and correctly interpret the questions put to the witness and shall also fully and correctly interpret the answers give by the witness in sign language to the court.”

Further, the statement should be video-graphed so that not only is the interpretation given by the interpreter recorded by the Court, but also the signs made by the mute witness is recorded.

This is in line with Section 119 of the Indian Evidence Act and the Supreme Court’s judgment in State of Rajasthan v Darshan singh @ Darshan Lal.

Section 119 states,

A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be video graphed“.

Adding to this provision, the Supreme Court had also laid down in the Darshan Singh case that the interpreter called on to assist the court in recording a mute witness’ testimony should also be administered an oath with videography. The judgment states,

A deaf and dumb person is a competent witness and if the court opines that the oath should be administered to such person, it should be done. In case, the witness is not able to read and write, his/her statement can be recorded in sign language, with an aid of interpreter, if found necessary. The interpreter should be a person from the same surrounding and should not have interest in the case. Interpreter should be administered oath with videography.

In the case at hand, however, the trial court was found to have failed to comply with these procedures.

Case background

The appellant in the case had been convicted for committing rape and voluntarily causing hurt to a differently-abled girl, who is unable to communicate verbally.

As per the FIR lodged by 23-year-old victim’s brother, she was found to be five months pregnant after she was taken to the hospital on complaints of abdominal pain.

The victim is said to have pointed towards the house of the accused-appellant when asked about the pregnancy. Through signs, the woman is said to have indicated that the person residing in the house had entered her house before Ramazan and raped her.

The investigation revealed that the victim was illiterate and did not know scientific sign language for differently abled persons. Her statement was recorded through an interpreter belonging to the school for differently abled persons and the statement was videographed by the police.

Advocate SJ Salgare, representing State, submitted that the victim had delivered the child and that a DNA test revealed that the accused was the biological father of the child.

He added that the statement of the victim was recorded through an interpreter and it was also videographed. He further claimed that the victim had identified the accused by communicating through signs.

However, appearing for the accused, Advocate Nilesh Ghanekar claimed that the victim’s testimony was not recorded as per section 119 of the Evidence Act in the trial Court. The appellant also argued that it was yet to be found whether the sexual encounter in question was consensual.

Judgment

The Court found merit in the appellant’s submission that the trial judge had disregarded mandatory provisions under Section 119 of the Evidence Act and the law laid down in the Darshan Singh case while recording the victim’s testimony.  Justice Dhavale observed,

The trial Court did not verify her understanding capacity. Though evidence of the witness was recorded by appointing an interpreter, the ld. trial Judge has not followed certain conditions. No oath was administered to the interpreter that he would fully and correctly interpret the questions put to the witness and shall also fully and correctly interpret the answers given by the witness in sign language to the court..”

Therefore, the Court partly allowed the appeal and remanded the case back to the trial court, while also directing the prosecution to arrange for videography of evidence. The trial court has been directed to hear the matter expeditiously and conclude the trial within a month.

The appellant, presently in jail, was directed to remain present during the trial. The appellant was also permitted to file a fresh bail application before the trial court.

[Read Judgment]

Bombay-HC-Section-119-Evidence-Act-Recording-witness-statement.pdf
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