Salum v Rex (Criminal Appeal No. 138 of 1951) [1951] EACA 217 (1 January 1951)

## 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.