S.124 & 125 BSA | Kerala High Court Issues Additional Directions For Recording Evidence Of Vulnerable Witnesses

The Kerala High Court recently passed a judgment outlining certain additional directions for recording the evidence of vulnerable witnesses. These directions are in addition to the guidelines issued through Notification No. D1-7/17562/2022 dated 21.12.2024, the Court clarified.Justice Gopinath P. was considering an appeal preferred by a convict challenging the conviction and sentence passed by the Sessions Court for the alleged commission of an offence under Section 376(2)(l) IPC.The victim in the case was a deaf and dumb lady (PW1), who was not trained in sign language. She divulged to her niece PW2 that she was raped by the appellant, and upon the information given by PW2, FIR was registered. The Magistrate recorded the statement of PW1 in the presence of an interpreter and videographed the entire process. However, since the interpreter could not decipher the statement of PW1, the Magistrate took the assistance of PW2. This statement was considered as examination-in-chief in accordance with Section 164 sub-section (5-A)(b) of the CrPC. After going through the Section 164 statement given by PW1 and deposition made before the Sessions Court, the High Court was of the opinion that the witness was unable to answer even basic questions put forth by the court. It also noted that the Magistrate ought to have evaluated the qualifications of the interpreter.It also looked in detail into Section 164 CrPC (corresponding to Section 183 BNSS) and Sections 118 and 119 of the Evidence Act (corresponding to Sections 124 and 125 BSA). It opined that the Magistrate ought to have assessed the competence of PW1 to testify. Moreover, it felt that the judicial dicta laid down in Alavi v. State of Kerala [1982 KLT 287] and State of Rajasthan v. Darshan Singh [(2012) 5 SCC 789] were violated since the services of PW2, who was the informant in the case, was taken to interpret the statements of PW1.It observed: “Furthermore, upon reviewing the victim's deposition before the Sessions Court, it becomes apparent that the appellant accused was unable to effectively cross-examine PW1. Given that the foundation of the prosecution case rests on the victim's statement under Section 164 of the Cr.P.C, which was taken as the examination-in-chief in accordance with the provisions of Section 164(5-A)(b) of the Cr.P.C, and since the recording of that statement was not in accordance with the law as noticed earlier and further since the appellant's counsel was clearly not in a position to cross examine PW1 (in the facts and circumstances of this case), I am inclined to allow this appeal.”DirectionsThe Court highlighted the need for having a standardised procedure for recording the statements/depositions of witnesses who are unable to communicate verbally, to understand questions put to them or to give rational answers.The additional directions issued by the Court are reproduced below:“(i) The Magistrate or the Trial Judge, as the case may be, shall mandatorily record his/her satisfaction regarding the competence of the witness under Section 124 of the BSA (corresponding to Section 118 of the Evidence Act);(ii) The Magistrate or the Trial Judge, as the case may be, shall consider whether a witness who is unable to speak can give evidence in any other manner in which he/she can make it intelligible as contemplated by the main part of Section 125 of the BSA (corresponding to Section 119 of the Evidence Act). If the Magistrate or the Trial Judge, as the case may be, concludes that the services of an interpreter/special educator as contemplated by the proviso to Section 125 of the BSA, are required, he/she shall proceed to ensure that the services of such interpreter/special educator are made available;(iii) The Magistrate or the Trial Judge, as the case may be, shall mandatorily record his/her satisfaction regarding the qualifications and competence of the interpreter and must also record his/her satisfaction that the interpreter can understand the signs and gestures being made by the witness and that the witness can understand the signs and gestures being made by the interpreter;(iv) In cases where the provisions of Section 125 of the BSA apply, the Magistrate or the Trial Judge, as the case may be, shall invariably record the demeanour of witnesses as contemplated by Section 315 of the BNSS (corresponding to Section 280 Cr.P.C);(v) If the interpreter is unable to interpret the signs and gestures of the witness, the Magistrate or the Trial Judge may utilise the services of a person familiar to the witness who is conversant with the mode and manner that the witness employs to convey ideas to others in day-to-day life. However, care must be taken to ensure that such a person is not an interested person who took an active part during the investigation of the case or a person who is/was willing to give evidence on the side of the prosecution.(vi) The Magistrate/the Trial Judge shall administer oath or affirmation to the witness the, interpreter...

S.124 & 125 BSA | Kerala High Court Issues Additional Directions For Recording Evidence Of Vulnerable Witnesses

K. Salma Jennath

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