Report No. 185

Section 119

This Section deals with 'dumb witnesses'. It reads:

"119. A witnesses 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."

The words 'unable to speak' can include deaf or dumb persons or persons who are both deaf and dumb. It may also relate signs of a dying woman (see R v. Abdullah: 7 All 385 (FB).

In Godrej Soap Ltd. v. State: 1991 Crl. LJ 828 (Cal), the Court assumed that a body corporate is unable to speak but held that it can stIllustration give 'evidence in writing' and the evidence so given has to be treated as 'oral evidence'.

As pointed out in para 60.15 of the 69th Report, in UK and USA, in the case of a deaf or dumb (or deaf and dumb) witness, an interpreter can be employed. In the 69th Report it was assumed: "Not much difficulty, however, seems to have been caused by the absence of a provision on the subject in India."

But in a ruling after 1977, in Kumbhar v. State: AIR 1966 Gujarat 101, the Court held, in view of the words "by writing or signs", that the signs must be of witness and not of the interpreter. But, an opposite view was taken in Kadungothi Alavi v. State of Kerala 1982 Crl L.J. 94 (Ker) that, in the case of a deaf and dumb person, her ideas could be conveyed to the Court by an expert.

In view of the conflicting judgments and the prevailing position in UK and USA, it appears that an Explanation is necessary though it was felt unnecessary in 1977 when the 69th Report was given.

We, accordingly, recommend for insertion of an Explanation below Section 119.

"Explanation: The interpretation of the signs of a person unable to speak, by an expert, shall be treated as oral evidence of the person who made the signs."

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