Introduction
A witness's inability to speak has never, in Indian law, been treated as an inability to testify. What has changed is how carefully the law now insists that testimony be captured — with a qualified interpreter, a specially trained educator where needed, and a camera running throughout.
Section 125 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) continues this run through the closing sections of Chapter IX ("Of Witnesses"), following Section 126 on spousal competency examined in the previous article. This piece explains how the rule for witnesses unable to communicate verbally actually works, the 2013 reform that added mandatory videography and specialist assistance, and what the Supreme Court has said about weighing this kind of testimony fairly.
125. Witness unable to communicate verbally.
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.
Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.
Section 125 BSA and Section 119 IEA: A Provision Already Modernised Once
Section 125 carries over Section 119 of the Indian Evidence Act, 1872 — but the text it carries forward is not the original 1872 wording. Section 119 was itself substituted by the Criminal Law (Amendment) Act, 2013, part of the sweeping reforms enacted in the aftermath of the Nirbhaya case to strengthen protections for vulnerable witnesses, particularly in sexual offence cases. The interpreter, special educator, and mandatory videography requirements all date from that 2013 amendment — the BSA simply carries this already-modernised provision forward unchanged.
| Aspect | Section 119, Indian Evidence Act, 1872 (as amended 2013) | Section 125, BSA, 2023 |
|---|---|---|
| General rule | Witness may testify by writing or signs, made in open Court; treated as oral evidence | Identical wording, unchanged |
| Procedural safeguard | Interpreter or special educator assistance, plus mandatory videography (added 2013) | Same, unchanged |
| Governing precedent | State of Rajasthan v. Darshan Singh, (2012) 5 SCC 789 | Continues to bind courts applying Section 125 |
How the Two Parts Work Together
The main rule and the 2013 proviso operate as one connected procedure, not two alternatives. A witness unable to speak communicates through writing or signs made in open court — that communication is legally treated as oral evidence, not as a lesser or secondary form of testimony. The proviso then adds the safeguards that make that communication reliable and reviewable: the court must involve a qualified interpreter or special educator to help accurately record what the witness is conveying, and the entire process must be videographed, creating a permanent record that a higher court or opposing counsel can later review if the accuracy of the interpretation is challenged.
The Governing Precedent: State of Rajasthan v. Darshan Singh
In State of Rajasthan v. Darshan Singh alias Darshan Lal, (2012) 5 SCC 789, the Supreme Court addressed the competency and credibility of a deaf witness's testimony in a murder case. The Court held firmly that a deaf and dumb person is a fully competent witness, memorably observing that "language is much more than words." At the same time, the judgment is not a blanket endorsement of every such witness's account — the Court also cautioned that sign language has its own inherent limitations, and that a witness communicating this way may not always be able to convey or clarify every detail the way a verbal witness could. In the case itself, the Supreme Court upheld an acquittal because the specific deaf witness's account had genuine, unresolved discrepancies — a reminder that competency and credibility are separate questions, and recognising the former does not automatically resolve the latter.
Part of a Broader Access-to-Justice Framework
Section 125 does not stand alone as the only legal protection for a witness with a communication disability. Section 12 of the Rights of Persons with Disabilities Act, 2016 guarantees persons with disabilities the right to access courts and judicial proceedings without discrimination, and requires legal services authorities to provide reasonable accommodation in court proceedings generally. Section 125's interpreter, special educator, and videography requirements can be understood as the evidentiary-procedure expression of that broader statutory commitment — ensuring the accommodation a witness is entitled to under disability-rights law translates into a concrete, reviewable courtroom procedure rather than remaining a general principle.
Worked Example One: A Witness Who Can Write
A witness who is unable to speak but is literate is called to testify in a contract dispute. The witness writes their answers in open court in response to questions. Under Section 125, this written testimony is deemed oral evidence — no interpreter is strictly necessary for the writing itself to count, though the court retains discretion to arrange assistance if needed to ensure the process runs smoothly and is properly recorded.
Worked Example Two: A Witness Who Communicates Only Through Sign Language
A witness who cannot write and communicates only through sign language is the key eyewitness in a criminal trial. Here, the proviso is not optional — the court must engage a qualified interpreter or special educator to assist in recording the testimony, and the entire examination must be videographed. If the interpreter's rendering of the witness's signs is later challenged on appeal, the video record becomes the primary tool for assessing whether the interpretation was accurate.
Why This Matters in Practice
For courts and counsel, Section 125 means the procedural safeguards are not optional formalities — skipping the interpreter, special educator, or videography requirement for a witness genuinely unable to communicate verbally creates a real vulnerability on appeal. For advocates representing a party whose case depends on this kind of testimony, securing a qualified, disinterested interpreter early and ensuring the videography is properly arranged protects the record against later challenges to accuracy. For anyone assessing the strength of such testimony, Darshan Singh is the reminder that the legal question is never whether the witness's disability makes them credible or not — competency is established by law — but whether the specific account, examined with the same care given any other witness, holds up.
Key Takeaways
- Section 125 BSA carries over Section 119 IEA as substituted by the Criminal Law (Amendment) Act, 2013 — not the original 1872 text.
- A witness unable to speak may testify by writing or signs made in open court, and this is legally treated as oral evidence.
- The 2013 proviso mandates an interpreter or special educator, plus videography, wherever a witness is genuinely unable to communicate verbally.
- State of Rajasthan v. Darshan Singh, (2012) 5 SCC 789, confirms deaf and mute witnesses are fully competent, while cautioning that sign language's limitations require careful, case-specific assessment of credibility.
- Competency and credibility remain separate questions — establishing the former does not resolve the latter.
Conclusion
Section 125 reflects a deliberate, relatively recent effort to make sure a witness's inability to speak never becomes an inability to be heard — pairing an old, simple rule about writing and signs with modern safeguards designed to make that testimony both accurate and reviewable. The next, final article in this run through Chapter IX turns to the most foundational competency question of all — who may testify as a witness in the first place, under Section 124.