Chapter XXIII of Cr.P.C deals with evidence in enquiries and trials. Section 272 of Code of Criminal Procedure contemplates that the State Government may determine what shall be for the purposes of the Code of Criminal Procedure, the language of each Court within the State other than the High Court. In State of Karnataka, Kannada and English are the official language. In case of recording of evidence by the Sessions Court, the provisions of Sections 276, 277 and 278 of Code of Criminal Procedure would apply. The said provisions read as under:
276. Record in trial before Court of Session:
(1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court or, under his direction and superintendence, by an officer of the Court appointed by him in this behalf.
(2) Such evidence shall ordinarily be taken down in the form of a narrative but the presiding Judge may in his discretion take down or cause to be taken down, any part of such evidence in the form of question and answer.
(3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record.
277. Language of record of evidence:
In every case where evidence is taken down u/s 275 or Section 276-
(a) if the witness gives evidence in the language of the Court, it shall be taken down in that language:
(b) if he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so. a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record:
(c) where under Clause (b) evidence is taken down in a language other than the language of the Court, a true translation thereof in the language of the Court shall be prepared as soon as practicable, signed by the Magistrate or presiding Judge, and shall form part of the record:
Provided that when under Clause (b) evidence is taken down in English and a translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with such translation.
278. Procedure in regard to such evidence when completed:
(1) As the evidence of each witness taken u/s 275 or Section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.
(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands.
Section 276 of Code of Criminal Procedure requires the evidence of each of the witnesses shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court or, under his direction and superintendence, by an officer of the Court appointed by him in this behalf and evidence so taken down shall be signed by the Presiding Judge and it shall form part of record.
However, more relevant provision is Section 277, which deals with language of Court. In case the witness gives evidence in the language of the Court, it shall be taken down in that language. If he gives evidence in any other language, if practicable, may be taken down in that language and in case it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds signed by the Magistrate or presiding Judge. The scope of Section 277 Clause (b) is that, if the evidence is given by witness in a language other than the Court language, it is permissible for the Court to record the said evidence in the said language. If it is not practicable, it may be translated simultaneously as the examination of the witnesses proceeds.
In the case of SELVI J. JAYALALITHAA Vs. STATE, recording of evidence of 276 witnesses has been done by Special Court at Chennai in Tamil i.e., in the language of the said Court and that complies with the requirement of Section 277 Clause (a) of Code of Criminal Procedure. However, in view of transfer of cases from one State to another and the language of the Court to which they are transferred being different, the evidence has to be in the language of the Court. It is nobody’s case that the Court in Karnataka is recording the evidence of the witnesses whose translation is filed. The said evidence is already on record. There is no fault in recording of the evidence, as it is recorded in the language of that Court and in the language of the witness. That is what required to be complied u/s 277(a) of Code of Criminal Procedure. However, to understand and appreciate the evidence already on record by the Court to which it is transferred, the said evidence has to be in the language of the Court. No doubt, the evidence already on record is in Tamil language, and the said language may not be known to the trial Judge, Prosecutor and the defence lawyer. But to know the evidence and understand and appreciate the same, it does not require the recalling of the witnesses for fresh recording. There is nothing wrong in the evidence already recorded. However, in view of the transfer for the convenience, it is required to be translated. In such case, the recording of fresh evidence is not. the scope of either Section 277 or Section 278 of Code of Criminal Procedure. At the same time, it should be borne in mind that, the trial Judge for all practical purpose will be relying on the translated evidence, it is in these circumstances, the translation has to be correct and accurate.
In Sections 277 and 278 of the Criminal Procedure Code, Court has to record evidence in language of court if witness deposes in that language. If he deposes in other language, it can be recorded in that language, if possible. Otherwise, its true translation in the language of the court is to be prepared at same time as witness continues to depose. Procedure to be followed after recording is in Section 278. Said evidence needs to be read over to witness in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and, if necessary, can be corrected. If any witness denies the correctness of any part of the deposition when the same is read over to him, the Court may, instead of correcting the evidence, make a memorandum thereon of the objection to it by the witness and add such remarks as it thinks necessary. The provisions of Section 278(3) are important in present matter. Where the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the same is to be interpreted to him in the language in which it was given, or in a language which he understands. In earlier i.e. old Criminal Procedure Code (Act V of 1898), these provisions were in Section 360 therein.
Section 364 of Cr.P.C. reads as follows:
364. Examination of accused how recorded.– (1) Whenever the accused is examined by any Magistrate, or by any Court, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or if that is not practicable, in the language of Court or in English; and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him, in a language which he understands, and he shall be at liberty to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall be singed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(3) In cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the court, or in English, if he is sufficiently acquainted with latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person u/s 263.
Non-compliance with provisions of Section 164 or 364.- (1) If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded u/s 164 or Section 364 is tendered or has been received in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and, notwithstanding anything contained in the Evidence Act, 1977, Section 91. such statement shall be admitted If the error has not injured the accused as to his defence on the merits.
(2) The provisions of this section apply to Courts of appeal, reference and revision.
Hon’ble Apex Court in Mir Mohd. Omar v. State of W.B., (1989) 4 SCC 436, at page 440 observes
“15. The object of Section 278 is two fold: firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes, if any. If the correction suggested by the witness is one which the Judge considers necessary he will make it at once as required by subsection (1) but if the correction is such that the Judge does not consider necessary, subsection (2) requires that a memorandum of the objection be made and the Judge add his remarks, if any, thereto. In the present case, the learned trial Judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition. The section is not intended to permit a witness to resile from his statement in the name of correction. The learned trial Judge was justified in refusing to effect the change which he thought was intended to change the earlier version. He did not make a memorandum as the correction slip was unsigned and was not properly filed. Now, since the correction slip as well as the remarks of the learned trial Judge have become a part of the record, nothing more need be done as the provisions of Section 278 are substantially complied with.”
In Willie (William) Slaney Vs. The State of Madhya Pradesh[AIR 1956 SC 116 : (1956) CriLJ 291 : (1955) 2 SCR 1140], which reads as under:
as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event, the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions.
Section 137, Civil Procedure Code is concerned it speaks about the language of the subordinate Courts and not regarding the language of the documents. The documents have to be filed in the language in which they are.
Sub-section (3) of section 137, CPC says that where this Code requires or allows anything other than the recording of evidence to be done in writing in any such Court, such writing may be in English; but if any party or his pleader is unacquainted with English a translation into the language of the Court shall, as at his request, be supplied to him; and the Court shall make such order as it thinks fit in respect of the payment of the cost of such translation.
Suffice to mention here that before the trial Court an objection was taken by counsel for the appellant about non-compliance of the provisions of Section 277, Code of Criminal Procedure, but that was overruled. Learned trial Court noticed that Laltu Manjhi (PW-3), Ashok Manjhi (PW-4) and Sudeep Dey (PW-5) were not having knowledge of Hindi, English or the language of Court and their statements as per provisions of Section 161 Cr.P.C. were recorded by getting the same translated from Bangla to Hindi with the aid of Sanju. The Court before recording the statements of above named persons made a note that the language of Court is not known to them and only language known is Bangla, therefore, the statements given by them were recorded by getting the same translated with the aid of Sanju. The statements were recorded in presence of accused, who is having good knowledge of Bangla as well as the language of Court. No objection was ever raised by him or his counsel about any error in translation at any point of time”. [ RAJASTHAN HIGH COURT in STATE OF RAJASTHAN Vs. KUNAL MAJUMDAR (2013) CriLJ 1998 : (2013) 2 CriLR 939 : (2013) 15 RCR(Criminal) 773]
In the instant case, the prosecution has examined 12 witnesses. Prosecutrix Parwatibai is P.W. 1. A perusal of deposition of Parwatibai, (P.W. 1) indicates that she was unable to understand even the questions which are put to her. Being a tribal girl, she was not able to follow Hindi language. The Court has recorded that it would be proper to record the statement of the parents first and thereafter to record the statement of Parwatibai and her statement was deferred. When it was again recorded the deposition indicates that she has clearly stated that child was begotten from the accused Darbarisingh. When question was put whether forcible sexual intercourse was committed or it was a case of consent, she answered both the questions in positive. She was unable to state of how many months the child was. The child was of 6 months at the relevant time. When question was put that accused taking advantage when she was alone in the house, and felled her down, she answered in positive. When accused Darbarisingh caught hold of her whether she cried, she had answered the question in positive. When question was put whether at the time of committing wrong, accused assured that he will perform the marriage, she was unable to answer anything. When the question was put whether Darbarisingh committed sexual intercourse, she had answered in ‘yes’. When it was put that several time sexual intercourse was done, she answered the question in positive but was unable to state how many times the sexual intercourse was performed. She has answered in positive the suggestion that she was taken to the Doctor. When in the cross-examination it was put that she was living as the wife of the Darbarisingh, she has answered in positive. When suggestion was put in cross-examination whether she had disclosed the fact of commission of sexual intercourse to the parents, she had answered in negative and she expressed her willingness to live with Darbarisingh. When suggestion was put that she was speaking lie, it is mentioned that she fell in state of sorrow and was unable to answer the question. When suggestion was put that Darbarisingh had committed sexual intercourse with the consent, she had answered in ‘yes’. The entire deposition of Parwatibai shows that she has clearly stated that Darbarisingh has committed sexual intercourse and was treating her as his wife and has performed sexual intercourse number of times. Thus, it is clear that accused has taken the advantage of dumbness of young girl, illiteracy and also the fact that she is a poor tribal girl.
- The Tamil language is the language of the Court in Tamil Nadu.
- The language of the Court in Karnataka being Kannada.