Trial court must record signs, gestures of hearing and speech impaired witnesses: HCUpdated: Aug 04, 2020 00:04 IST
The Aurangabad bench of the Bombay high court (HC) has held that while recording testimony of a hearing and speech impaired witness, trial courts must also record the signs and gestures made by the witness along with the interpretation of the same.
Justice VK Jadhav said recording details of signs and gestures made by the witness was mandatory under section 119 of the Evidence Act, 1872, which lays down the procedure for recording testimony of a hearing and speech impaired witnesses.
The judge granted bail to a gang rape convict, Abdul Salim, after noticing that the trial court did not record, in its evidence of the hearing and speech impaired survivor, the details of signs and gestures that the survivor had made before the court along with the interpretation by a special teacher.
“On careful perusal of prosecution evidence, particularly the evidence of the 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.”
Salim moved HC after Nanded sessions court on October 3, 2019, after he was convicted for gang rape along with two juveniles and sentenced to 10 years’ imprisonment.
He filed a plea for bail during pendency of his appeal and his lawyer pointed out the lacuna in recording evidence of the survivor while urging 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 Evidence Act. 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 possibility of forcible intercourse was confusing and unclear, he had stated in clear terms that he did not find any marks of struggle on the survivor.
Justice Jadhav was also displeased with the manner in which identification parade was conducted by the investigation officer. Allegedly the officer called some boys in the age group of 18-20 years (age group of the accused) to the police station and asked the survivor to identify three culprits. “This particular procedure is unknown to the criminal law, violating all norms and guidelines for conducting identification parade,” said the judge.