Recording Of Evidence From Person Unable To Give Verbal Statements

INTRODUCTION:

The Indian legal system has a unique identity in the global jurisprudence for its all-pervasive and incorporating nature. It has made manifold provisions for providing equal, nay equitable opportunities to all the individuals irrespective of their physical and mental health and status. It is widely accepted and cherished view that a witness plays the most vital role in the administration of criminal justice system. The version recorded from a witness either helps an accused to prove his innocence or assists prosecution to establish its grounds and arguments against the accused in a more precise manner with the standard beyond the reach of any reasonable doubt. It is often seen that some of the witnesses face physical impedance to express the incidents or events witnessed by them. They may not be able to give their versions in verbal statements. However, this reason should never be an obstruction for relying upon the evidence of such witnesses. Statutory provisions and judicial pronouncements have laid down as well as at several times reiterated the procedures which should be followed while examining and collecting statements from such witnesses.

THE STATUTORY AND PRECEDENTIAL MANDATES:

Section 119 of the Indian Evidence Act, 1872 speaks, “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 signs made in open Court, evidence so given shall be deemed as 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.” From the aforesaid provision, it becomes apparent that the legal clauses have been made conducive to embrace all the witnesses. In M.P. Sharma & Others v. Satish Chandra, District Magistrate, Delhi & Others,¹ the Hon’ble Supreme Court was of the view that a person can be a witness not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness or like. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than once was once supposed.²

PROCEDURES TO BE FOLLOWED FOR OBTAINING EVIDENCE FROM SUCH WITNESSESS:

When a deaf or mute person is produced as a witness, the Court, in the exercise of due caution would certainly ascertain as to whether the person possesses the minimum level of intelligence to understand the meaning and nature of the oath. When the Judge is satisfied on the above criterions, he may permit the witness to take oath and give his evidence by means of writing. If he is unable to read or write, he may take the help of an interpreter and express his version through sign languages.³ In Public Prosecutor, High Court of Andhra Pradesh, Hyderabad v. Lingisetty Sreenu,⁴ the Andhra Pradesh High Court opined that in order to understand and appreciate the evidence of such witnesses expressing their ideas with the help of signs, it should necessarily seek the assistance of an expert so as to safely rely on such evidence. It is to be noted that the requirement under Section 118 of the Evidence Act must be fulfilled or in other words, the witness must be competent to understand the questions put to him and should be able to give rational answers to them. If he is unable to understand the questions or to make his meaning intelligible, he cannot be examined as a witness.⁵

In State of Rajasthan v. Darshan Singh @ Darshan Lal,⁶ it was observed that “a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.” The Court must follow the mandates of Sections 4 and 5 of the Oaths Act, 1969, i.e., oath or affirmation to be made by the witnesses, interpreters and jurors. If the evidence is recorded with help of an interpreter, there must be a record/ video of signs as well as the interpretation of signs.⁷

EVIDENTIARY VALUE OF THE VERSIONS OF SUCH WITNESSES:

To evaluate the evidentiary relevance and admissibility of such versions, we must have a glance towards the observations of Hon’ble Supreme Court in various instances where evidence given by persons unable to speak was taken up for judicial consideration. In Meesala Ramakrishnan v. State of Andhra Pradesh,⁸ the Hon’ble Apex Court held that dying declaration recorded by means of signs and nods of a person who is not in a position to speak for any reason amounts to a verbal statement and thus, is relevant and admissible. The Court reiterated that ‘verbal’ statement does not amount to ‘oral statement’. Section 119 of the Evidence Act requires that witness may give his/her evidence in any manner in which he can make it intelligible, as by writing or by signs and such evidence can be deemed to be oral evidence within the meaning of Section 3 of the Evidence Act. Signs and gestures made by nods or head are admissible and possess evidentiary value. Therefore, the evidence given by such persons are perfectly valid and admissible in the eyes of law.

CONCLUSION:

The vague presumption that the persons having physical impediments are intellectually weak is outdated. The Indian justice delivery set-up has provided an all-inclusive environment where each and every witness who possesses a minimum level of intelligence is given a chance to be testified. Furthermore, the procedural safeguards are strictly implemented to check any inadmissible or unintelligible evidence. However, statutory mandates are equipped enough to overcome all the procedural bottlenecks.

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