IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE SHAMPA DUTT (PAUL)
CRR 2570 OF 2022
SANKAR HALDER
VS.
THE STATE OF WEST BENGAL
For the Petitioner : Mr. Robiul Islam, Mr. Rakib Hussain.
For the State : Mr. Ranabir Roychowdhary, Mr. Mainak Gupta.
Hearing concluded on : 22.11.2024
Judgment on : 29.11.2024
SHAMPA DUTT (PAUL), J. :
1. The present revisional application has been preferred against an order and judgment dated 08.06.2022 passed by the learned Additional Sessions Judge, FTC II, Diamond Harbour, in S.T. 5
(9) 06 arising out of S.C. 109 (9) 05 arising out of G.R. 307/05.
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2. By the order under revision the Court considered the prayer of the petitioner/accused herein who prayed for expunging the entire evidence of the victim girl on the ground that previously the victim girl has been examined and partly cross-examined with the help of another interpreter, namely, Nabanita Roy Chowdhury. As the Trial Court was not satisfied with the efficiency of the said interpreter, she was removed from this case and further cross-examination of victim girl was withheld.
3. According to the learned advocate of the accused persons when a new interpreter has been appointed in this case it is necessary that the existing evidence of victim girl already on record should be expunged and fresh evidence from the beginning of the said witness should be recorded with the help of the new interpreter.
4. As directed by the Court the State in compliance has filed a list of interpreters. From the list of interpreters as submitted by the State it appears that none of the interpreters are of the District under which the present case is being tried.
5. The question before the learned Trial Court was not regarding appointment of a fresh interpreter. The prayer of the petitioner/accused person herein is that he has no objection to the new interpreter appointed by the Trial Court. His only prayer is for expunging the entire evidence of the victim girl
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(deaf and dumb) recorded earlier and to record the entire evidence of the victim girl by the present interpreter.
6. The Delhi High Court in Chander Singh Vs. State, CRL.A. 751/2014, decided on 3rd June, 2016, held:-
"9. As noted above the prosecutrix is a deaf and dumb girl and obviously would not be able to face grilling cross-examination which learned counsel for the appellant attempted to do. However even in cross-examination on the relevant point as to where the incident took place she was able to explain by drawing. The purpose of cross-examination is to test the veracity of the version of the complainant which in this case was explained by gestures by the prosecutrix to her mother on whose statement the FIR was registered and who also deposed as PW-4 in the witness box. Nothing could be elicited from the mother of the prosecutrix in cross-examination. The prosecutrix had stood by her complaint even in her deposition before the Court and her testimony cannot be brushed aside merely because she has not been able to answer irrelevant and unnecessary questions put to her in the cross- examination.
10. Section 119 of the Indian Evidence Act, 1872 provides:
"119. Dumb witnesses.- 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."
11. While dealing with the mode of recording, non-administration of oath to a deaf and dumb witness and involving an interpreter for understanding the evidence of such a witness, the Supreme Court in the decision reported as
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(2012) 5 SCC 789 State of Rajasthan Vs. Darshan Singh @ Darshan Lal held:
"26. 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. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs.
27. In Meesala Ramakrishan v. State Of A.P . [(1994) 4 SCC 182 : 1994 SCC (Cri) 838] , this Court has considered the evidentiary value of a dying declaration recorded by means of signs and nods of a person who is not in a position to speak for any reason and held that the same amounts to a verbal statement and, thus, is relevant and admissible. The Court further clarified that "verbal" statement does not amount to "oral" statement. In view of the provisions of Section 119 of the Evidence Act, the only requirement is that the witness may give his 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 such nods and gestures are not only admissible but possess evidentiary value.
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28. Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing, if literate or through signs and gestures, if he is unable to read and write. A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures. Emphasised body language and facial expression enabled the audience to comprehend the intended message.
29. To sum up, 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 so 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."
12. It is further required to be noted that the purpose of cross-examination is to ascertain the truth in relation to the acquisition leveled against an accused person and a discretion is vested in the Court to control the cross- examination. A party cross-examining a deaf and dumb witness like any other witness is required to act within the bounds of law and cannot be permitted to cross-examine the witness all and sundry on irrelevant questions. Section 138 of the Indian Evidence Act itself provides that the examination and cross-examination of a witness must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief. The purpose is that in cross- examination besides relevant
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facts, facts which impeach the credibility of the witness and shake his creditworthiness can also be asked. However still the first portion of Section 138 of the Evidence Act qualifies this right confining the cross-examination to relevant facts though it may not have been so deposed in the examination-in-chief. It is the duty of a Judge to control the cross-examination to prevent any abuse and to protect a witness from being unfairly dealt with. Sections 149 to 152 of the Evidence Act prohibit asking questions without reasonable grounds, which are indecent and scandalous in nature, or which are intended to insult or annoy the witness.
13. When a deaf and dumb witness is under cross-examination, the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not affect either the competence or the credibility of such witness. The Court is required to exercise control over the cross-examination keeping in view the ability of the witness to answer the questions.
14. From the examination of the witness which was in question-answer form and the response to the cross-examination wherein the witness drew and explained the distance where the incident took place, it can safely be held that there was sufficient compliance of the right to cross-examination provided to an accused and the testimony of this witness is not required to be effaced."
7. The Supreme Court in State of Rajasthan Vs. Darshan Singh @ Darshan Lal, AIR 2012 SC 1973, decided on 21st May, 2012, held:-
"17. In M.P. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors., AIR 1954 SC
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300, this Court held 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 (See Section 119 of the Evidence Act) or the like.
18. 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. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be a record of signs and not the interpretation of signs.
19. In Meesala Ramakrishan v. State Of A.P ., (1994) 4 SCC 182, this Court has considered the evidentiary value of a dying declaration recorded by means of signs and nods of a person who is not in a position to speak for any reason and held that the same amounts to a verbal statement and, thus, is relevant and admissible. The Court further clarified that `verbal' statement does not amount to `oral' statement. In view of the provisions of Section 119 of the Evidence Act, the only requirement is that witness may give his 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 such nods and gestures are
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not only admissible but possess evidentiary value.
20. Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.
A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures. Emphasised body language and facial expression enabled the audience to comprehend the intended message.
21. To sum up, 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 so 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."
8. The victim (deaf and dumb) has not prayed for recording of fresh evidence on the interpreter being changed.
9. The prayer of the accused/petitioner thus cannot be entertained in the interest of justice.
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10. In view of the above discussions and the judgment referred to this Court finds no reason to interfere with the order of the learned Trial Judge which is in accordance with law and interfering in such a proceedings shall be an abuse of process of law.
11. CRR 2570 of 2022 is dismissed.
12. The order dated 08.06.2022 passed by the learned Additional Sessions Judge, FTC II, Diamond Harbour, in S.T. 5 (9) 06 arising out of S.C. 109 (9) 05 arising out of G.R. 307/05, is hereby affirmed.
13. Learned trial Court to proceed with the case expeditiously.
14. All connected application, if any, stands disposed of.
15. Interim order, if any, stands vacated.
16. Let a copy of the Judgment be sent to the learned trial court at once.
17. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities.
[Shampa Dutt (Paul), J.]
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