Section 119 Evidence Act | Madras High Court Lays Down Principles For Examining Witnesses Who Are Unable To Speak

The Madras High Court, in a judgment delivered in a criminal appeal, 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.The proviso to Section 119 of the Indian Evidence Act further stipulates that if the witness is unable to communicate verbally, the Court shall take the assistance of the interpreter or a special educator in recording the statement and such statement shall be video-graphed.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 videograph 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."One may note that though the main part of Section 119 of the Indian Evidence Act speaks about witness who is unable to speak, the proviso that was incorporated in the year 2013 states about a witness who is unable to communicate verbally. As per section 119, if the witness is unable to speak, he may give evidence by writing or by signs. But, such writing must be written and the signs made in open Court and the evidence so given shall be deemed to be oral evidence. Since the language employed in the main part of the Section and in the proviso are different, they do not obviously convey the same meaning. A person can verbally communicate even if he is unable to speak. The Black's Law dictionary defines '' Verbal, adj.(15c) 1. Of, relating to, or expressed in words''. Thus verbal communication in the context of Section 119 is by words in writing. Therefore, the proviso is applicable only to such category of persons who are unable to speak and unable to verbally communicate through writing. Therefore, it follows that it applies only to persons who give evidence by signs."The case in briefIn 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.Court's orderAt the outset, the Court took into account the fact...

Section 119 Evidence Act | Madras High Court Lays Down Principles For Examining Witnesses Who Are Unable To Speak

Sparsh Upadhyay

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