Section 119 of the Indian Evidence Act, 1872 states that a witness who is not able to speak may give their evidence in any other manner in which it can be intelligible – by writing or through sign language; however, such communication by writing or by sign language must be in the open court.
Recently, the Bombay High Court referred a rape case to the Trial Court giving the reason that the evidence of the dumb and deaf victim was recorded without taking into consideration Section 119 of the Indian Evidence Act. The law also provides for situations wherein the dumb and deaf witness cannot read or write. In such cases, their statements are recorded in sign language and with the help of an interpreter if it is found to be necessary. If the interpreter is to be offered an oath, it should be taken care that he is a man of the same surroundings but having no personal interest in the case. The Bench also said that the evidence recorded in such a manner should be videographed.
In the case of State of Rajasthan V. Darshan Singh, the Supreme Court gave a clarification as to how the evidence of a dumb and deaf witness should be taken. The Court specified that such a witness is a complete witness regardless of the fact that he cannot speak, hear, read or write. If such witness is capable of reading and writing, his statement is recorded by asking him questions in writing to which such witness can respond through writing. However there may be cases wherein the witness is dumb and deaf and cannot read or write, in such cases the evidence is recorded in sign language.
The Bombay High Court Bench was chaired by Justice A.M. Dhavale who during the appeal noticed that the Trial Court had failed to check the victim’s ability to understand. Despite the evidence of the witness being recorded by appointing an interpreter, it was found that the interpreter was not asked to take an oath before he was made to interpret the questions that were put forward to the witness and the answers that were given by her using sign language.
On this finding, the case was sent back to the Trial Court along with certain directions issues to the Trial Judge for recording the evidence of a dumb and deaf victim. It was decided that the Trial Judge is supposed to record the understanding ability and the ability to comprehend the sign language used by the deaf and dumb person. It was also decided that the Judge shall ask the Interpreter to take an oath before he begins to interpret the sign language of the dumb witness. After the evidence has been taken in a proper manner, it shall be registered as well as videographed and the Prosecution shall be the one who shall arrange for the videography of the proof of the deaf and dumb victim.
The Aurangabad Bench of Bombay High Court, in this case, seeks to explain how to record the evidence of deaf and dumb rape victim. The Trial Court was directed to follow the procedure of recording such evidence and also to dispose it of within one month as pointed out in the above para. The Trial Court earlier didn’t follow the proper procedure in this regard as has already been explained in detail in the above paras and now it has to comply according to the procedure laid down by the Aurangabad Bench of Bombay High Court.