Case No.:

NS-117.1958 (Merowe)—P.C. (Ed Darner)

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Evidence—Deaf mute—Evidence receivable uncorroborated

Obiter dictum: In accordance with Indian Evidence Act, s. 118, the evidence of an illiterate deaf mute (or partial deaf mute) may be received as oral evidence uncorroborated if “well-understood in any manner” by the court.

Judgment

                                                     (PROVINCE COURT)

   SUDAN GOVERNMENT v. MOHAMED EL HASSAN MOHAMED KHEIR   AND ANOTHER

NS-117.1958 (Merowe)—P.C. (Ed Darner)

Osman El Tayeb P.1. November 17, 1958: —Reference your NS-117-1958 trial of Mohamed El Hassan Mohamed Kheir and El Ata Mohamed Rahama.

I have refused confirmation of finding of guilty under Penal Code, S. 374, and I order that Mohamed El Hassan Mohamed Kheir be set at liberty forthwith.

The case is one of causing of mischief by fire to agricultural produce to the value of more than £S.100. A crop of wheat was secured and stacked on the field for threshing and in the evening on May 6, 1958, it was seen on fire. The villagers ran to- it and extinguished the fire, but the crop was totally destroyed. The case came for trial before the Assistant Resident Magistrate (District Judge El Tayeb El Abbas); on the evidence he found the appellant to be the culprit and sentenced him to imprison ment and fine.

The main witness ii the case is Abdel Basit El Tahir, P.W.6. This witness is a deaf mute, though not completely. The learned magistrate commented before recording his evidence as follows: “ This witness speaks with great difficulty; he is nearly dumb, and also hears with difficulty. Some of his statements are unintelligible, ‘and some could be understood. Some gestures that he makes help in understanding him. I could get from his evidence the following. The statement as recorded runs as follows:

‘I asked El Ata to give me “saffa He refused. I entered my hand into his pocket. I found inside a box of matches and ashmeig” rope. This was after sunset. After this I saw El Ata, A.2, with Mohamed El Hassan set fire to the wheat and run away. They were creeping on their feet to the south. They were wearing trousers . . . I was in the cultivation near there; I was not in my house. I went to the house to put off my clothes and came back ‘.“

He gave two statements in the case diary on p. 14 and on p. i6. There are, on the whole, some inconsistencies between the three statements.

The learned magistrate considered the evidence of Abdel Basit, as being a deaf mute, to be treated like the evidence of a child that it cannot be legally acceptable to convict upon unless it is corroborated by other independent evidence. He found that there is no evidence in corroboration against Accused No. i, Mohamed El Hassan, and so found him not guilty. He decided, on the other hand, that there was evidence tendered in corroboration against Accused No. 2, El Ata, and so convicted him.

The learned magistrate is not wholly wrong in the legal opinion about the evidence of a deaf mute. Such a person, like any other person, is competent to give evidence, and the question of its acceptability to convict, or otherwise, goes rather to weight and credibility. If he is well under stood in any manner and the court believes that he is telling the truth, it may convict upon his evidence alone without any other evidence tendered in corroboration. Generally, the evidence of a deaf mute is not required by law nor by rules of practice to be corroborated. The Indian Evidence Act, s. ii8, states as follows:

“A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs, but such writing must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence.”

The section suggests that there must be either writing or signs. By writing, it is possible to make a long and detailed story and in the same way can answer questions put in examination. But by signs this could hardly be done. So I believe that a dumb witness who cannot write must be taken with great care, and that his evidence must not be given much

In my opinion evidence of this class, in order to form the basis of a criminal case, must be in the first place straightforward, and in the second place not contradicted.

Comparing his statement as recorded in case diary and at the trial, we find the following inconsistencies. Once he said that he entered his hand into the pocket of El Ata and he found a box of matches and “ashmeig” rope; on another occasion he mentioned the matches without a rope; and on a third occasion he said that he touched the pocket from outside. Once he said that both accused were with their trousers only; and in another he said that they were with their gowns that they put off. Once he said that he was there guarding his own wheat; and on another occasion he said that he went to his house and returned. On the other hand, P.W.4, the father of this dumb witness, stated that his son came to the house from the cultivation just after sunset and remained in the house for a long time until they saw the fire and both ran to it. This evidence means that AbdeEBasit was not by the side of the wheat when it was burnt.

One more point is that P.W. stated at police investigation that he was the first person to run to the fire and that he found nobody there; P.W.

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the nazir of the scheme stated at police investigation that he was the first person to run to the fire and that P.W.4 came after him. None of them stated that he found Abdel Basit there. Abdel Basit was mentioned to the investigator to have knowledge of the offence only on May 14, a week after the incident.

In these circumstances, I should think that the evidence of Abdel Basit should be given no weight.

There is no other evidence except that of Urn el Hassan, P.W.7. She stated that when the people ran to the fire, El Ata came to his house and that was quickly marching, and that he was breathing highly and sat down. This is relevant evidence, but what weight can it bear by itself towards proving the main fact that accused was the person who set fire on the wheat? 1 should say none. The fact that he did not go to help with the others in extinguishing the fire is not a material thing against him. He said that he was in his house all the evening, and his wife gave evidence to this effect. This evidence can be considered in contradiction to the evidence against him that was weak.

I dealt with this case in the way I did, because the evidence is generally very weak, and doubt appears to me obvious.

Editors’ Note. —Cf. Sudan Government v. Charles Kirman (1956 S.LJ.R. 35, 36, where court gives obiter dictum indicating signs of a dying man are receivable as a dying declaration.