Justice can’t be denied, because the witness cannot speak; laid down principles relating to the examination of witnesses (who are unable to speak) under Section 119 of the Indian Evidence Act: Madras High Court
In a judgment delivered in a criminal appeal, the Madras High Court laid down certain significant principles relating to the examination of witnesses (who are unable to speak) under Section 119 of the Indian Evidence Act. For context, as per Section 119 of the Indian Evidence Act, if a witness cannot speak, he/she can give evidence in any manner which can make it intelligible, such as by writing or by signs made in open Court, such evidence shall be deemed to be oral evidence. This was seen in the case of Ravichandran Vs. State of Tamil Nadu (CRL.A.NO.65 OF 2020) and the case was presided over by Honourable Mr. Justice Sundar Mohan.
FACTS OF THE CASE
In the instant case, the appellant was found guilty of causing injury to the head and other parts of the body including the private parts of the victim (who was then 5 years of age and who suffered from speech and hearing impairment) by using weapons and also poking the victim with needles besides causing harm to her by using a cat to attack her.
Challenging the judgment of conviction under Sections 307 and 502(ii) of IPC., he moved to the High Court arguing that though the victim suffered from speech and hearing impairment, her deposition before the Court did not disclose how and in what manner her evidence was recorded by the trial Court and thus, the Trial Court had not followed the procedure prescribed under Section 119 of the Indian Evidence Act.
At the outset, the Court took into account the fact that the victim suffered from speech and hearing impairment and that the trial Court had noted that the injuries were shown by her through gestures. In view of this, the Court wondered how the trial Court interpreted the gestures, in the absence of an interpreter or a special educator. The Court also noted that even when the Investigating Officer had stated in her evidence that she took the help of an interpreter to record the statement of the victim, the prosecution did not examine that interpreter.
Against this backdrop, concluding that in the absence of any record in the deposition to show how and in what manner, the evidence of P.W.1/victim was recorded, the Court held that her deposition cannot be relied upon for being in violation of Section 119 of the Indian Evidence Act.
Taking into account the essence of this provision, the bench of Justice Sunder Mohan laid down the following principles governing the same:
- A) The endeavor of the Court must be to record the evidence, by giving questions in writing and seeking answers in writing, if the witness is able to read and write. Only if the witness is unable to read and write, the courts should record the evidence by signs.
- B)If the evidence is recorded by signs, the view of the Courts, (prior to amendment) was that the signs must be recorded as such and there should not be any interpretation of the signs. However, the Apex court has, in a judgment in the case of Darshan Singh, held that an interpreter is necessary while recording the evidence of witnesses who give evidence by signs. The legislature thought it fit to make it mandatory for the Courts to take the assistance of an interpreter and videography of such evidence, in line with the pronouncements of the Hon’ble Apex court.
C The meaning of the word ”unable to communicate verbally” in the proviso to Section 119 of the Indian Evidence Act means unable to communicate in writing and can communicate only through signs. It is for those categories of persons who are unable to speak and can’t communicate in writing that the proviso would apply. As per the proviso, the Courts shall take the assistance of the interpreter and such recording of such statement shall be video graphed.
With regard to point (c), the Court clarified that the Madras High Court in Mariyadoss vs. State by Inspector of Police reported in 2014 (2) MWN Cr. (321): 2014 SCC Online Mad 1862 has held that the trial Courts should get an undertaking affidavit from the videographer that he will not disclose the proceedings to anybody and that he will not retain a copy of the proceedings.
Herein, our readers may note that while laying down the abovementioned principles, the Court significantly held that wherein a witness is not able to either communicate verbally or give his evidence in writing and can only communicate through signs, then it is mandatory for the court to take the assistance of the interpreter and order recording of such statement by way of videography. In essence, the Court has held that the proviso to Section 119 applies only to such witnesses who give evidence by way of signs.
That apart, the Court noted that even assuming that her evidence was recorded in a proper manner, the same did not inspire confidence and thus, the High Court set aside the judgment of the trial Court, and the appellant was acquitted.
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JUDGEMENT REVIEWED BY ABHINAV SHUKLA.