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Salum v Rex (Criminal Appeal No. 138 of 1951) [1951] EACA 217 (1 January 1951)
- Citation
- [1951] EACA 217
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Lockhart-Smith, J, Nihill P, Worley VP
- Case number
- Criminal Appeal No. 138 of 1951
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Lockhart-Smith, J, Nihill P, Worley VP
- Case number
- Criminal Appeal No. 138 of 1951
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that while section 119 of the Indian Evidence Act, 1872, permits a witness who cannot speak to give evidence by signs or writing in open court, and English law recognizes the competency of deaf mute witnesses if communication is possible and the nature of an oath is understood, the admissibility of such evidence ultimately rests on the discretion of the trial judge. In this case, the trial judge tested the proposed method of interpretation and found it to be crude and unreliable. Therefore, he was justified in exercising his discretion to exclude the evidence of the deaf mute witness. The principle inherent in section 119 should be applied to deaf mute witnesses, but only if the method of interpretation is sufficiently reliable to ensure the integrity of the evidence.
Court disposition
appeal_dismissed
Orders
- The exclusion of the evidence of the deaf mute witness by the trial judge is upheld.
02
Material facts
Parties
Hamisi s/o Salum
AppellantRex
Respondent Counsel: J. C. Summerfield03
Procedural history
Posture
Criminal Appeal / Appeal From High Court
04
Questions and positions
Legal issues
- 01
Whether the evidence of a deaf mute is admissible in criminal proceedings.
- 02
Whether the trial judge has discretion to exclude evidence from a deaf mute witness if the method of interpretation is inadequate.
Party arguments
- Applicant
- The appellant contended that the evidence of the deaf mute witness, who was an eye witness to the alleged murder, should have been admitted, as section 119 of the Indian Evidence Act allows for evidence to be given by signs or writing in open court. The appellant argued that the principle should apply even if the witness is both deaf and mute.
- Respondent
- The respondent, represented by Crown Counsel, maintained that the trial judge acted within his discretion in excluding the evidence, as the method of interpretation was found to be crude and unreliable. The respondent argued that the competency of the witness and the reliability of the interpretation are essential for admissibility.
05
Court’s reasoning
Legal principles
- 01
Indian Evidence Act, 1872, section 119
A witness unable to speak may give evidence by writing or signs in open court, as per section 119 of the Indian Evidence Act, 1872.
- 02
Archbold, 32nd edition, pages 458-9
In England, a deaf mute is competent to testify if he understands the nature of an oath and communication can be made by signs, interpreted by a sworn interpreter.
- 03
Judicial discretion as referenced in the judgment
The admissibility of evidence from a deaf mute witness is subject to the discretion of the trial judge, particularly regarding the reliability of interpretation.
06
Ratio, limits and disposition
Ratio decidendi
The court held that while section 119 of the Indian Evidence Act, 1872, permits a witness who cannot speak to give evidence by signs or writing in open court, and English law recognizes the competency of deaf mute witnesses if communication is possible and the nature of an oath is understood, the admissibility of such evidence ultimately rests on the discretion of the trial judge. In this case, the trial judge tested the proposed method of interpretation and found it to be crude and unreliable. Therefore, he was justified in exercising his discretion to exclude the evidence of the deaf mute witness. The principle inherent in section 119 should be applied to deaf mute witnesses, but only if the method of interpretation is sufficiently reliable to ensure the integrity of the evidence.
Obiter and limits
- There is no specific provision in the Indian Evidence Act for witnesses who are both deaf and mute, but the principle of section 119 should be extended to such cases.
- Competency of a witness depends not only on statutory provisions but also on the practical reliability of the means of communication.
Court disposition
appeal_dismissed
- The exclusion of the evidence of the deaf mute witness by the trial judge is upheld.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
COURT OF APPEAL FOR EASTERN AFRICA
Before Sir Barclay Nihill, President, Sir Newnham Worley, Vice-President, and Lockhart-Smith, J. of A.
HAMISI s/o SALUM, Appellant (Original Accused)
$\mathbf{v}$
REX. Respondent (Original Prosecutor)
Criminal Appeal No. 138 of 1951
(Appeal from the decision of H. M. High Court of Tanganyika—Knight, J.)
Criminal law-Evidence-Indian Evidence Act, 1872, section 119-Admissibility of evidence of deaf mute—Discretion of trial Judge.
The appellant was convicted of murder by the High Court of Tanganyika. At the preliminary inquiry, evidence was given for the prosecution by a deaf mute, but the trial Judge refused to admit her evidence.
The judgment is reported only so far as it deals with the competency of such evidence.
Appellant in person.
J. C. Summerfield (Crown Counsel, Tanganyika), for the Crown.
LOCKHART-SMITH, J. of A.: $(10-8-51)$ .—At the preliminary inquiry evidence was given by a daughter of the deceased, who was put forward by the Crown<br>as an eye witness of the alleged murder. The Magistrate having noted that the witness was dumb, her evidence was given through the medium of a sworn interpreter, who was in fact her sister, and who claimed to be able to interpret the signs and noises made by the witness.
Under section 119 of the Indian Evidence Act, 1872, as applied to Tanganyika, a witness who is unable to speak may give evidence in any other manner in which he can make it intelligible, as by writing or signs, if such writing be written or signs made in open Court.
At the trial, it emerged that the witness was not only dumb but also deaf. There does not appear to be any provision of the Indian Evidence Act precisely covering the case of such a witness, but we see no reason why the principle inherent in section 119 thereof should not be applied. In England, a person who is a deaf mute is not incompetent as a witness if he can be made to understand the nature of an oath, and if intelligence can be conveyed to and received from him by means of signs. He may be examined through the medium of a sworn interpreter, who understands the signs. (See Archbold, 32nd edition, pages 458-9 and authorities there cited.)
In the present case, however, the learned trial Judge, having tested the proposed method of interpretation, and found it of a very crude type, made an order, as it was entirely within his discretion to do, that the evidence of the girl should be excluded.
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