Whether deaf and dumb witness can be credible and reliable witness?

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 merelydue 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.”

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Delivered on: June 03, 2016
 CRL.A. 751/2014
CHANDER SINGH ..... Appellant

versus
STATE ..... Respondent

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

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Delhi HC: Procedure for recording evidence of deaf and dumb witness

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 (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.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Delivered on: June 03, 2016
 CRL.A. 751/2014 

CHANDER SINGH     Vs   STATE 

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

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How to appreciate evidence of deaf and dumb witness?

Basic argument which has been advanced by both the parties before us is on the admissibility and credibility of sole eye-witness Geeta (PW.16).

Admittedly, Geeta (PW.16) had not been administered oath, nor Jaswant Singh (PW.1), her father who acted as interpreter when her statement was recorded in the court. In view of provisions of Sections 4 and 5 of the Oaths Act, 1969, it is always desirable to administer oath or statement may be recorded on affirmation of the witness. This Court in Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, has categorically held that the main purpose of administering of oath to render persons who give false evidence liable to prosecution and further to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, further such matters only touch credibility and not admissibility.

However, in view of the provisions of Section 7 of the Oaths Act, 1969, the omission of administration of oath or affirmation does not invalidate any evidence.

17. In M.P. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors., AIR 1954 SC 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 (SeeSection 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 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.

22. In the instant case, there is sufficient material on record that Geeta (PW.16) was able to read and write and this fact stood proved in the trial court when she wrote the telephone number of her father. We fail to understand as to why her statement could not be recorded in writing, i.e., she could have been given the questions in writing and an opportunity to reply the same in writing.

23. Be that as it may, her statement had been recorded with the help of her father as an interpreter, who for the reasons given by the High Court, being an interested witness who had assisted during the trial, investigation and was examined without administering oath, made the evidence unreliable. In such a fact-situation, the High Court has rightly given the benefit of doubt and acquitted the respondent.

Supreme Court of India

State Of Rajasthan vs Darshan Singh @ Darshan Lal on 21 May, 2012

Bench: B.S. Chauhan, Dipak Misra
Citation; AIR2012SC1973, 2012CriLJ2908,(2012)5SCC789, 

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"Oath In Indian Courts Is Taken By Holy Book Gita?" : Myth Busted

Is it really true that the oath in Indian courts is taken by Gita? Lets see in the blog post. 

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Whether evidence of adult person is admissible in evidence if oath is not administered to him?

It is the settled view that non-administer of an oath to an adult goes only to the credibility of the witness and not its competency. The Oaths Act does not deal with the competency of an witness and under Section 13 of the Act, omission to take oath does not effect admissibility of the evidence. In AIR 1952 SC 54 : (1952 Cri LJ 547) (Rameshwar v. The State of Rajasthan), the view of the Apex Court is that --

"An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118, Evidence Act. The Oaths Act does not deal with competency and under Section 13 of that Act omission to take oath does not affect the admissibility of the evidence. It therefore follows that the irregularity in question cannot affect the admissibility of the evidence of the girl.

It is, however, desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether."

Gauhati High Court

Babrubahan Jal vs State Of Assam on 19 June, 1990

Equivalent citations: 1991 CriLJ 278

Bench: R Manisana, M Sharma

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