The Aurangabad bench of the Bombay high court (HC) has held that while recording the testimony of a hearing and speech-impaired witness, the trial courts must also record the signs and gestures made by the challenged person along with the interpretation put on the signs and gestures.
Justice VK Jadhav said recording details of signs and gestures made by the witness was mandatory under Section 119 of the Indian Evidence Act, 1872, which lays down the procedure for recording the testimony of a hearing and speech-impaired witness.
The judge granted bail to a gang-rape convict, Abdul Salim, after noticing that the trial court did not record in its evidence the hearing and speech-impaired survivor the details of signs and gestures made by her while testifying before the court along with the interpretation put on the signs and gestures by a special teacher.
“On careful perusal of prosecution evidence, particularly the evidence of victim and evidence of the special teacher, it appears that the learned judge of the trial court has not taken any pains to record the gestures made by the victim during the course of recording her evidence nor there is any reference as to how those gestures came to be interpreted by the special teacher.”
Abdul moved HC after Nanded sessions court on October 3, 2019, had convicted him for gang-raping the girl with hearing and speech impairment along with two juveniles, and sentenced him to 10-year imprisonment.
{{/usCountry}}Abdul moved HC after Nanded sessions court on October 3, 2019, had convicted him for gang-raping the girl with hearing and speech impairment along with two juveniles, and sentenced him to 10-year imprisonment.
{{/usCountry}}He had filed a plea for bail during the pendency of his appeal and his lawyer pointed out the lacunae in recording the evidence of the survivor while urging the HC to suspend the substantive sentence headed down to the convict and release him on bail.
Justice Jadhav found substance in the argument that the trial court had failed to comply with the mandate of Section 119 of the Indian Evidence Act, 1872
Besides, the judge also took note of the fact that the evidence of the doctor, who examined the survivor, was not clear and the medical evidence did not support the prosecution case of gang rape.
HC also noted that though the opinion of the doctor about the possibility of forcible intercourse was unclear, he had stated clearly that he did not find any marks of struggle on the person of the survivor.
Justice Jadhav was also annoyed with the manner in which the identification parade was conducted by the investigation officer, by calling a few boys in the age group between 18 and 20 years at the police station and asking the survivor to identify the three culprits.
“This particular procedure is unknown to the criminal law, violating all norms and guidelines for conducting the identification parade,” said Justice Jadhav.