Testimony of Witnesses Unable to Speak: An Analysis of Indian Jurisprudence

The Competency and Examination of Witnesses Unable to Speak in Indian Law

Introduction

The Indian legal system, founded on the principles of justice and fair play, mandates that all relevant evidence be brought before the courts to ensure a rightful adjudication. A critical aspect of this process is the testimony of witnesses. However, challenges arise when a witness is unable to speak, traditionally referred to in legal parlance as a "deaf and dumb" witness. The Indian Evidence Act, 1872, and subsequent judicial pronouncements have laid down a framework to address the competency and examination of such witnesses, ensuring their inclusion in the pursuit of truth while safeguarding the integrity of the trial process. This article delves into the legal provisions and judicial interpretations governing the testimony of witnesses who are unable to speak, with a particular focus on Section 119 of the Indian Evidence Act, 1872, and the principles enunciated by the Indian judiciary.

Historical Context and Evolving Legal Perception

Historically, individuals with communication impairments faced significant barriers in societal and legal spheres. The Supreme Court in State Of Rajasthan v. Darshan Singh Alias Darshan Lal . (2012 SCC CIV 3 399, Supreme Court Of India, 2012) (hereinafter Darshan Singh (SC)) noted, "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 one was once supposed." This shift in understanding, from viewing such individuals as inherently incompetent to recognizing their capacity for rational thought and communication, underpins the modern legal approach to their testimony. The Calcutta High Court in SANKAR HALDER v. STATE OF WEST BENGAL (Calcutta High Court, 2024) reiterated this evolved perspective, citing Darshan Singh (SC).

Statutory Framework: Section 119 of the Indian Evidence Act, 1872

The primary statutory provision governing the testimony of witnesses unable to speak is Section 119 of the Indian Evidence Act, 1872. It states:

"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 the signs made in open Court. Evidence so given shall be deemed to be oral evidence."

This section is an exception to the general rule that oral evidence must be given orally. It operates in conjunction with Section 118 of the Act, which deals with the general competency of witnesses. Section 118 stipulates that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Thus, a witness unable to speak is not per se incompetent; their competency is determined by their ability to understand questions and provide rational, intelligible answers, albeit through non-verbal means (Sunil Kumar v. State Of Himachal Pradesh, 2012 SCC ONLINE HP 7999, Himachal Pradesh High Court, 2012).

Judicial Interpretation and Procedural Safeguards

The judiciary has played a crucial role in elaborating the principles and procedures for examining witnesses unable to speak. The paramount consideration is ensuring that the evidence is intelligible, accurately recorded, and obtained fairly.

Competency and Intelligibility

The Supreme Court and various High Courts have consistently affirmed that a person unable to speak is a competent witness if they can make their testimony intelligible. As summarized in CHHAGAN LAL SAHU v. STATE OF CHHATTISGARH (Chhattisgarh High Court, 2024), drawing from Darshan Singh (SC), "a deaf and dumb person is a competent witness." The core test is intelligibility. The court must first ascertain that the witness possesses the requisite intelligence to understand the proceedings and the nature of their testimony (Darshan Singh Darshan Lal v. State Of Rajasthan, 2006 SCC ONLINE RAJ 277, Rajasthan High Court, 2006; Vinod v. State Of M P, Madhya Pradesh High Court, 2009).

Modes of Testifying

Section 119 permits evidence to be given in "any other manner in which he can make it intelligible," specifically mentioning writing or signs.

  • Writing: If the witness is literate and able to write, this method is often preferred as it can provide a clear and unambiguous record. The Supreme Court in Darshan Singh (SC) observed, "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." This view was reiterated in CHHAGAN LAL SAHU v. STATE OF CHHATTISGARH (Chhattisgarh High Court, 2024).
  • Signs and Gestures: Where writing is not feasible, testimony through signs and gestures is admissible. Such evidence, when made in open court, is deemed to be oral evidence under Section 119. The Supreme Court in M.P Sharma v. Satish Chandra (AIR 1954 SC 300), as cited in Darshan Singh (SC), affirmed that a person can be a witness by "making intelligible gestures as in the case of a dumb witness." Similarly, in Meesala Ramakrishan v. State Of A.P ((1994) 4 SCC 182), cited in Darshan Singh (SC) and Dilawarsab Alisab Jakati v. State Of Karnataka By Its State Public Prosecutors (Karnataka High Court, 2005), it was held that statements made through signs and gestures by witnesses unable to speak are admissible and hold the same weight as verbal statements.

The Role and Qualifications of an Interpreter

When evidence is given through signs, an interpreter may be necessary. The selection and role of the interpreter are critical to ensure accuracy and fairness.

  • Necessity and Impartiality: An interpreter should be used if found necessary by the court. Crucially, the interpreter "should be a person of the same surrounding but should not have any interest in the case" (Darshan Singh (SC); CHHAGAN LAL SAHU v. STATE OF CHHATTISGARH (Chhattisgarh High Court, 2024)). The use of an interested party as an interpreter can render the evidence unreliable. In Darshan Singh (SC), the Supreme Court upheld the High Court's decision to acquit, partly because the sole eyewitness's (who was deaf and dumb) statement was interpreted by her father, an interested party who had participated in the investigation. The Rajasthan High Court in Darshan Singh Darshan Lal v. State Of Rajasthan (2006 SCC ONLINE RAJ 277) cited Ah Soi v. King Emperor (AIR 1926 Cal 922), emphasizing that a witness who took an active part in the investigation should not be chosen as an interpreter as it is "opposed to the elementary ideas of justice."
  • Expertise or Familiarity: It is desirable that the interpreter be an expert in sign language or a person familiar with the witness's mode of communication (Parkash Chand v. The State Of Himachal Pradesh, 1998 SHIMLC 2 458, Himachal Pradesh High Court, 1998; Alavi v. State Of Kerala, 1981 SCC ONLINE KER 200, Kerala High Court, 1981). The Rajasthan High Court in Darshan Singh Darshan Lal (2006) noted that it is not safe for a court to examine such a witness without the help of an expert or a familiar person.
  • Oath for the Interpreter: The interpreter should be administered an oath (Darshan Singh (SC); CHHAGAN LAL SAHU v. STATE OF CHHATTISGARH (Chhattisgarh High Court, 2024)).

Administration of Oath to the Witness

The administration of an oath to a witness unable to speak requires careful consideration. The Supreme Court in Darshan Singh (SC) stated, "If in the opinion of the court, oath can be administered to him/her, it should be so done." The court must ascertain that the witness understands the nature of an oath (Darshan Singh Darshan Lal v. State Of Rajasthan, 2006 SCC ONLINE RAJ 277; Vinod v. State Of M P, Madhya Pradesh High Court, 2009). While the omission of an oath does not inherently invalidate evidence (as per Rameshwar v. The State Of Rajasthan, AIR 1952 SC 54, cited in Darshan Singh (SC)), its administration, where possible, enhances credibility.

Recording of Evidence: Signs v. Interpretation

A crucial procedural aspect is the method of recording the evidence. The law requires that the signs themselves, not merely the interpreter's interpretation, be recorded. The Supreme Court in Darshan Singh (SC) emphasized, "The law requires that there must be a record of signs and not the interpretation of signs." This principle was also highlighted in Dilawarsab Alisab Jakati v. State Of Karnataka (Karnataka High Court, 2005) and Parkash Chand v. The State Of Himachal Pradesh (Himachal Pradesh High Court, 1998), citing Kumbhar Musa Alib v. State of Gujarat (AIR 1966 Guj. 101). Recording the signs enables an appellate court to assess the correctness of the interpretation. Failure to record the signs and only recording the interpretation may be non-compliant with Section 119 and can render the evidence unreliable.

Court's Duty and Precautions

The trial court bears a significant responsibility when examining a witness unable to speak.

  • Ascertaining Understanding: The court must satisfy itself that the witness possesses the requisite intelligence and understands the questions put to them and the nature of an oath (Darshan Singh Darshan Lal v. State Of Rajasthan (2006); Devsingh Hidhako S/o Maharsingh Hidako v. (Chhattisgarh High Court, 2018)). This satisfaction should ideally be recorded.
  • Ensuring Fair Examination: The court must ensure that the examination, including cross-examination, is conducted fairly and effectively. If a witness is unable to understand questions put in cross-examination, their competency might be questioned, and evidence taken could be struck out (Venkattan alias Venkatachellam and Ors. v. Emperor, 1912 Criminal Law Journal of India (13) 271, as cited in Vinod v. State Of M P (2009)). The Kerala High Court in Alavi v. State Of Kerala (1981) also discussed the challenges when a witness cannot be effectively cross-examined.

Challenges and Considerations

Despite the legal framework, examining witnesses unable to speak presents challenges. The risk of misinterpretation, even with a neutral interpreter, is inherent. Ensuring that the witness fully understands complex legal questions and the nuances of cross-examination requires patience, skill, and often specialized support. The Supreme Court in The State Of Maharashtra (S) v. Bandu Daulat (S) (2017 SCC ONLINE SC 1255), while dealing with a victim who was deaf, dumb, and mentally challenged to some extent, highlighted the need for specialized environments for vulnerable witnesses. The Court directed High Courts to take steps towards setting up vulnerable witness deposition centres, recognizing the need for supportive infrastructure to facilitate the testimony of such witnesses effectively and sensitively.

Conclusion

Indian law, through Section 119 of the Evidence Act and robust judicial interpretation, strives to include witnesses unable to speak in the adjudicatory process, recognizing their competence and the value of their testimony. The emphasis is on intelligibility, fairness, and the meticulous recording of evidence, often with the aid of impartial and skilled interpreters. The courts are mandated to exercise due caution, ensuring that the witness understands the proceedings and that their testimony is accurately conveyed and recorded. While challenges persist, the evolving jurisprudence reflects a commitment to balancing the rights of such witnesses to be heard with the imperative of maintaining the integrity and reliability of evidence. The continued development of support mechanisms, such as vulnerable witness deposition centres, will further strengthen the ability of the legal system to accommodate and protect these witnesses, ensuring that justice is accessible to all.