​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –Witness Unable to Communicate Verbally (Section 125)

Introduction
For a person to appear as a witness before a court, the essential requirement is not the ability to speak, but the ability to communicate intelligibly. The law recognises that some witnesses may be unable to communicate verbally due to physical disability such as being deaf, dumb, paralysed, or otherwise speech-impaired. Section 125 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) ensures that such persons are not excluded from the justice process merely because they cannot speak.

Statutory Provision Explained
Section 125 – Witness Unable to Communicate Verbally

• A witness who is unable to speak may give evidence:
  • By writing, or
  • By signs, or
  • By any other manner through which the evidence can be made intelligible.
• Conditions imposed by law:
  • The writing must be done, and the signs must be made in open court.
  • Evidence so given shall be deemed to be oral evidence.
• Additional safeguard:
  • Where the witness cannot communicate verbally, the court shall:
    • Take the assistance of an interpreter or a special educator, and
    • Ensure that the statement is video-graphed.

Scope and Purpose of Section 125
(a) Inclusive Nature of Evidence Law

• The provision reflects a rights-based and inclusive approach.
• A person with speech or hearing disability:
  • Is not disqualified from being a witness, and
  • Cannot be presumed to be unreliable merely due to physical limitations.
• Communication through signs or writing, though limited in expression, is still capable of conveying truth when properly recorded and interpreted.

Modes of Communication Recognised
Where a witness is unable to communicate verbally, the following modes are legally recognised:

1. Writing – where the witness can read and write.
2. Signs or gestures – where writing is not possible.
3. Interpretation through an interpreter or special educator – where necessary.

All such methods are treated as valid modes of giving evidence, provided they are intelligible and recorded in accordance with law.

Illustrative Example

• A commits murder of B in the presence of C, who is deaf and dumb.
• During trial:
  • C is shown the weapon (spear).
  • When asked whether the deceased was killed with that spear, C nods affirmatively.
  • When asked who killed B, C points towards A.

These gestures, made in open court, are admissible evidence under Section 125.

Incapability of Verbal Communication: Procedural Safeguards
(b) Role of the Court

• The court must:
  • Carefully record both the signs made by the witness, and
  • The interpretation given by the interpreter or special educator.
• This ensures:
  • Accuracy of the record, and
  • Transparency in the evidentiary process.

Oath and Interpreter

• Under the Oaths Act, both:
  • The witness, and
  • The interpreter (if provided),
    must be administered an oath or affirmation before evidence is recorded.
• The interpreter must:
  • Be neutral and impartial, and
  • Have no interest in the outcome of the case.

Judicial Approach
Courts have consistently held that:

• A deaf and dumb person is a competent witness.
• If the witness can read and write:
  • Questions should preferably be put in writing and answers recorded in writing.
• If the witness cannot read or write:
  • Evidence may be recorded through signs with the assistance of an interpreter.
• Loss of speech due to injury or illness does not affect the admissibility or credibility of evidence, if the prescribed procedure is followed.

Evidentiary Value

• Evidence given under Section 125:
  • Is treated as oral evidence, and
  • Carries the same legal weight as spoken testimony, subject to judicial scrutiny.

Object of Section 125
The object of this provision is to:

• Prevent miscarriage of justice due to physical disability;
• Uphold equality before law;
• Ensure access to justice for persons with disabilities;
• Enable courts to receive relevant evidence in all possible forms.

Conclusion
Section 125 of the Bharatiya Sakshya Adhiniyam, 2023 embodies the modern, inclusive spirit of Indian evidence law. It recognises that speech is not the sole medium of truth and that justice must accommodate human diversity. By permitting evidence through writing, signs, interpreters, and video recording, the law ensures that witnesses who are unable to communicate verbally are heard, respected, and treated on par with other witnesses, without compromising the integrity of judicial proceedings.