Introduction:

The case before the Kerala High Court titled Manoj v. State of Kerala [CRL.A No.1938/2024; 2025 LiveLaw (Ker) 579] dealt with a deeply sensitive issue regarding the recording of evidence from vulnerable witnesses, particularly individuals with speech and hearing impairments. Justice Gopinath P. was hearing an appeal filed by the accused challenging his conviction under Section 376(2)(l) of the Indian Penal Code, which pertains to the offence of rape against a woman suffering from a mental or physical disability. The victim, a deaf and dumb lady, had disclosed the alleged incident of rape to her niece (PW2), based on which an FIR was lodged. During the course of the investigation and trial, serious procedural lapses arose concerning the way in which the statement of the victim was recorded under Section 164 of the Code of Criminal Procedure (now Section 183 BNSS) and how her testimony was evaluated under the Evidence Act (now corresponding provisions of the Bharatiya Sakshya Adhiniyam, 2023). The case gave the High Court an opportunity not only to examine whether the conviction could be sustained but also to issue additional directions to trial courts and magistrates across the state to ensure that vulnerable witnesses, including those who cannot speak or hear, are examined with due procedural safeguards and in a manner consistent with justice, fairness, and the rule of law.

Arguments of the Appellant:

The counsel for the appellant, Advocate Vishnuprasad Nair, advanced a strong argument that the conviction recorded by the Sessions Court could not be sustained in law due to fundamental procedural irregularities in the manner the victim’s evidence was collected and relied upon. The appellant contended that the victim, being a deaf and dumb woman with no training in sign language, was not competent to provide testimony in the manner it was recorded. The statement under Section 164 CrPC was videographed, but since the interpreter engaged by the Magistrate was unable to interpret the signs and gestures of the victim, the assistance of PW2, who was both a relative of the victim and the informant in the case, was sought. The appellant’s counsel submitted that this was a grave error since PW2 was an interested witness whose involvement in interpreting the statement of the victim not only compromised neutrality but also violated settled principles of law, particularly those laid down in Alavi v. State of Kerala [1982 KLT 287] and State of Rajasthan v. Darshan Singh [(2012) 5 SCC 789], which had categorically discouraged the use of interested parties as interpreters in sensitive testimony. It was further argued that the Sessions Court wrongly treated the Section 164 CrPC statement as examination-in-chief under Section 164(5-A)(b), without first establishing the competence of the witness as required under Section 118 of the Evidence Act (now Section 124 BSA). The appellant emphasized that during cross-examination before the Sessions Court, the victim was unable to answer even basic questions, making it impossible for the defence to effectively test the veracity of her version. Thus, the foundation of the conviction was based on shaky and inadmissible evidence, rendering the trial unfair and violative of Article 21 of the Constitution. The appellant further highlighted that the failure of the Magistrate to evaluate the qualifications and competence of the interpreter was a fatal flaw. The law mandates that the interpreter must be competent and capable of understanding the unique modes of communication of the witness, but in this case, the interpreter’s incompetence led to an over-reliance on PW2, who was an informant, thereby vitiating the entire process. On these grounds, the appellant prayed that the conviction be set aside and he be acquitted of the charges, as the prosecution had failed to prove guilt beyond reasonable doubt.

Arguments of the State:

The respondent State, represented by Public Prosecutor Seena C., opposed the appeal and sought to defend the conviction recorded by the Sessions Court. The prosecution argued that the victim had, to the best of her ability, conveyed the incident of sexual assault to her niece PW2, and the same had been faithfully recorded by the Magistrate under Section 164 CrPC with the assistance of an interpreter. While admitting that the interpreter faced some difficulty, the State contended that the essence of the testimony was captured and that the niece PW2 had only acted as a facilitator to ensure that the victim’s account was communicated. The State emphasized that courts must adopt a pragmatic approach while dealing with evidence from vulnerable witnesses, particularly in cases of sexual assault, where direct communication may not always be possible due to disabilities. It argued that Section 119 of the Evidence Act (now Section 125 BSA) recognizes that witnesses who are unable to speak may still give evidence through signs or in any manner intelligible, and that the law permits the use of interpreters or even persons familiar with the witness’s mode of communication. The prosecution submitted that merely because PW2 assisted in interpreting, it should not automatically lead to the conclusion that the evidence was inadmissible, especially since PW2 was best placed to understand the victim’s gestures and signs. It was further contended that videographing the statement under Section 164 was itself a safeguard ensuring transparency and authenticity of the process. The prosecution also invoked the principle that technical lapses should not result in acquittal of the guilty, especially in heinous offences like rape. The State argued that the victim’s consistent disclosure to PW2, the medical evidence, and the overall circumstances of the case corroborated the prosecution’s case, and that the conviction recorded by the Sessions Court was justified.

Court’s Judgment:

Justice Gopinath P. of the Kerala High Court, after carefully examining the record, allowed the appeal and set aside the conviction, holding that the process followed in recording the evidence of the victim was fundamentally flawed and contrary to established legal principles. The Court observed that the Magistrate had failed to perform the essential duty of assessing the competence of the witness under Section 118 of the Evidence Act (corresponding to Section 124 of the BSA). The victim’s inability to answer even basic questions during her deposition before the Sessions Court underscored the necessity of conducting a preliminary inquiry into her competence to testify, which was not done. Further, the Court found that the interpreter engaged during the recording of the Section 164 statement was unable to interpret the gestures and signs of the victim, and instead, PW2, who was both the informant and a prosecution witness, was called upon to interpret. This, the Court held, was a violation of the dicta laid down in Alavi and Darshan Singh, since an interested person should never be used as an interpreter for a witness. Such reliance, the Court observed, vitiated the fairness of the process and undermined the accused’s right to a fair trial. The Court also held that under Section 119 of the Evidence Act (Section 125 BSA), while a witness who cannot speak may give evidence in a manner intelligible, if the court employs the services of an interpreter, it must mandatorily record satisfaction about the interpreter’s qualifications and competence. In this case, the Magistrate failed to do so, rendering the evidence unreliable. The Court further emphasized that the appellant’s counsel was denied an effective opportunity to cross-examine PW1, as the victim’s deposition was incoherent and could not be effectively tested. Since the foundation of the prosecution’s case rested on the Section 164 statement treated as examination-in-chief, and that statement itself was recorded unlawfully, the Court concluded that the conviction could not be sustained. Justice Gopinath P. then proceeded to issue additional directions to ensure that such lapses do not recur in future cases involving vulnerable witnesses. These included mandatory recording of satisfaction regarding witness competence, assessment of alternative modes of communication, mandatory evaluation of interpreter qualifications, recording of demeanour under Section 315 BNSS, restrictions on using interested persons as interpreters, and the administration of oath not only to the witness but also to the interpreter or any familiar person assisting communication. The Court directed the Registry to circulate these guidelines to all trial courts across Kerala, thereby institutionalizing a more rigorous, fair, and standardized process for handling testimonies of vulnerable witnesses. By doing so, the Court reinforced the principle that while protecting victims of sexual assault is paramount, fairness to the accused through adherence to due process is equally essential.