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How to record the evidence of deaf and dumb? = To sum up, a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath. In the instant case, there is sufficient material on record that Geeta (PW.16) was able to read and write and this fact stood proved in the trial court when she wrote the telephone number of her father. We fail to understand as to why her statement could not be recorded in writing, i.e., she could have been given the questions in writing and an opportunity to reply the same in writing. 23. Be that as it may, her statement had been recorded with the help of her father as an interpreter, who for the reasons given by the High Court, being an interested witness who had assisted during the trial, investigation and was examined without administering oath, made the evidence unreliable. In such a fact-situation, the High Court has rightly given the benefit of doubt and acquitted the respondent.

? REPORTABLE

Athletes of the National sports federation of ...

Athletes of the National sports federation of the deaf and dumb of Iran (Photo credit: Wikipedia)

 

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.870 of 2007

 

 

State of Rajasthan …..Appellant

Versus

Darshan Singh @ Darshan Lal ….. Respondents

 

 

 

 

JUDGMENT

Dr. B.S. CHAUHAN, J.

 

l. This Criminal Appeal has been preferred against the
judgment and order dated 29.5.2006 in D.B. Criminal Appeal No. 96 of
2003 passed by the High Court of Judicature for Rajasthan at Jodhpur
setting aside the judgment and order dated 15.1.2003 passed by the
Additional Sessions Judge (Fast Track) Hanumangarh, convicting the
respondent herein of the offences punishable under Section 302 of
Indian Penal Code, 1860 (hereinafter referred as `IPC’) and imposing
the punishment to suffer rigorous imprisonment for life and to pay a
fine of Rs. 500/- in default to further undergo one month simple
imprisonment.

2. Facts and circumstances giving rise to this appeal are that:
A. Buta Singh (PW.15) lodged an oral report on 4.5.2001 at 1.00
a.m. at P.S. Hanumangarh, District Hanumangarh stating that on
intervening night between 3/4.5.2001 at about 12.15 a.m., Jaswant Singh
(PW.1) received a telephone call from Dr. Amarjeet Singh Chawla (PW.4)
to the effect that Jaswant Singh’s daughter was perturbed and,
therefore, he must immediately reach the house of his son-in-law Kaku
Singh. Buta Singh (PW.15), informant, also proceeded towards the
house of Kaku Singh deceased, alongwith his son Gurmail Singh. They
met Jaswant Singh (PW.1) and Geeta (PW.16), his daughter in the lane.
The main door of the house was closed but the window of the door was
open. They went inside through the window and found two cots lying on
some distance where fresh blood was lying covered with sand. They also
found the dead body of Kaku Singh in the pool of blood covered by a
quilt in the room.

B. On being asked, Geeta (PW.16) (deaf and dumb), wife of Kaku
Singh deceased communicated by gestures that Darshan Singh, respondent-
accused, had stayed with them in the night. He had given a pill with
water to Kaku Singh and thus he became unconscious. Two more persons,
accomplice of Darshan Singh came from outside and all the three
persons inflicted injuries on Kaku Singh with sharp edged weapons.
Geeta (PW.16) got scared and ran outside. The motive for committing
the offence had been that one Chhindri Bhatni was having illicit
relationship with Kaku Singh, deceased, and about 8-10 months prior to
the date of incident Kaku Singh caused burn injuries to Geeta (PW.16)
at the instigation of Chhindri Bhatni. However, because of the
intervention of the community people, Kaku Singh, deceased, severed his
relationship with Chhindri Bhatni, who became annoyed and had sent her
brother Darshan Singh alongwith other persons who killed Kaku Singh.

C. On the basis of the said report FIR No. 262 of 2001 was
registered under Sections 449, 302, 201 and 120B IPC against the
respondent at P.S Hanumangarh and investigation ensued. The respondent
was arrested and during interrogation, he made a voluntary disclosure
statement on the basis of which the I.O. got recovered a blood stained
Kulhari and clothes the respondent was wearing at the time of
commission of offence.

D. After completion of the investigation, the police filed
chargesheet against the respondent under Sections 302 and 201 IPC and
the trial commenced. During the course of trial, the prosecution
examined as many as 23 witnesses and tendered several documents in
evidence. However, Geeta (PW.16) was the sole eye-witness of the
occurrence, being deaf and dumb, her statement was recorded in sign
language with the help of her father Jaswant Singh (PW.1) as an
interpreter. After completion of all the formalities and conclusion of
the trial, the trial court placed reliance upon the evidence of Geeta
(PW.16) and recovery etc., and convicted the respondent vide judgment
and order dated 15.1.2003 and imposed the punishment as mentioned here-
in-above.

E. Aggrieved, the respondent preferred Criminal Appeal No. 96 of
2003 before the High Court which has been allowed vide impugned
judgment and order dated 29.5.2006.

Hence, this appeal.

3. Dr. Manish Singhvi, learned Additional Advocate General,
appearing for the appellant-State, has submitted that the prosecution
case was fully supported by Geeta (PW.16), Jaswant Singh (PW.1) and
Buta Singh (PW.15) which stood fully corroborated by the medical
evidence. Dr. Rajendra Gupta (PW.17) proved the post-mortem report and
supported the case of the prosecution. Therefore, the High Court
committed an error by reversing the well-reasoned judgment of the trial
court. Thus, the appeal deserves to be allowed.

4. Per contra, learned counsel appearing for the respondent has
opposed the appeal contending that the deposition of Geeta (PW.16)
cannot be relied upon for the reason that she is deaf and dumb and her
statement has not been recorded as per the requirement of the
provisions of Section 119 of the Evidence Act, 1872. The deposition of
Jaswant Singh (PW.1) cannot be relied upon as he was having an eye on
the property of Kaku Singh, deceased. The High Court has considered
the entire evidence and re-appreciated the same in correct perspective.
There are fixed parameters for interfering with the order of acquittal
which we do not fit in the facts and circumstances of the case,
therefore, the appeal is liable to be dismissed.

5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.

Undoubtedly, Kaku Singh, deceased, died a homicidal death. Dr.
Rajendra Gupta (PW.17), who conducted the post-mortem examination on
the dead body of Kaku Singh, found the following injuries:

i) Incised wound 4-1/2” x 1” bone deep fracture on the right lateral
side of face mandible region.
ii) Incised wound 5-1/2” x 2” bone deep all structure of neck cut
wound.
He opined that the cause of death was injury to vessel of
neck, trachea due to injury no. 2 which was sufficient in the ordinary
course of nature to cause death.

6. The only question that remains for consideration is whether the
respondent could be held responsible for causing the death of Kaku
Singh, deceased.

Geeta (PW.16) is the star witness of the prosecution. According
to her at 6.30 p.m. on the day of incident, respondent-accused came to
her house. The accused and her husband consumed liquor together. The
respondent-accused had mixed a tablet in the glass of water and the
same was taken by her husband Kaku Singh. She served the food to both
of them and subsequently, all the three persons slept on cots in the
same room. During the night two persons also joined the respondent-
accused. It was at 11.30 p.m., accused Darshan Singh had taken out a
kulhari from his bag and gave blows on the neck and cheek of her
husband. She raised a cry but accused caught her by the hair and asked
to keep quiet otherwise she would also be killed. The dead body was
taken by the accused alongwith accompanying persons and was put in a
room and locked the same from outside. In the court, Geeta (PW.16)
witness indicated that she could read and write and she had written
telephone number of her father Jaswant Singh (PW.1). It was on her
request that Dr. Amarjeet Singh Chawla (PW.4) informed her father.
After sometime, Jaswant Singh (PW.1) came there on scooter and saw the
place of occurrence.

7. Jaswant Singh (PW.1) deposed that he reached the place of
occurrence after receiving the telephone call from Dr. Amarjeet Singh
Chawla (PW.4) and after coming to know about the murder of Kaku Singh,
he informed Buta Singh (PW.15), brother of deceased Kaku Singh.
Jaswant Singh (PW.1) reached the clinic of Dr. Amarjeet Singh Chawla
(PW.4), in the way, he met Buta Singh (PW.15) and his son Gurmail
Singh. They came to the house of Kaku Singh, deceased and found the
blood covered with sand and also the dead body of Kaku Singh lying on a
cot in a room covered with quilt. Geeta (PW.16) informed him through
gestures that respondent-accused Darshan Singh had killed him with
kulhari while Kaku Singh was sleeping. She also told Jaswant Singh
(PW.1) about the illicit relationship of Chhindri Bhatni with Kaku
Singh, deceased and because of the intervention of community persons,
Kaku Singh had severed relationship with Chhindri Bhatni. The latter
got annoyed and got Kaku Singh killed through her brother Darshan
Singh, respondent-accused.

8. Buta Singh (PW.15), brother of deceased Kaku Singh, narrated
the incident as had been stated by Jaswant Singh (PW.1).

9. Dr. Rajendra Gupta, (PW.17), who conducted the post-mortem on
the said dead body supported the case of the prosecution to the extent
that Kaku Singh, deceased, died of homicidal death.

10. Gurtej Singh (PW.2) the recovery witness deposed about the
inquest report of the dead body and taking in custody of empty strip of
tablet, blood stained soil and simple soil and moulds etc. from the
spot.

11. Hari Singh (PW.7), the recovery witness of kulhari (Ext. P-12)
at the instance of respondent-accused Darshan Singh supported the
prosecution case to the extent of the said recovery.

12. Ramjilal (PW.23), Investigating Officer, gave full details of
lodging an FIR at midnight and explained all steps taken during the
investigation, recoveries referred to here-in-above, recording of
statements of witnesses under Section 161 Cr.P.C., sending the
recovered material for FSL report and arrest of Darshan Singh,
respondent-accused etc.

13. Dr. Amarjeet Singh Chawla (PW.4) deposed that Geeta (PW.16) had
asked him to give a telephone call to her father and he had accordingly
informed her father. After sometime, her father Jaswant Singh (PW.1)
had arrived on scooter. In the cross-examination, he explained that
Geeta (PW.16) was dumb and deaf, however, could read and write and she
had written the telephone number of her father as 55172 and, thus, he
could contact her father.

14. The respondent-accused in his examination under Section 313
Cr.P.C., denied all allegations. The trial court found the evidence on
record trustworthy and in view thereof, convicted the respondent-
accused and sentenced him as referred to hereinabove.

15. The High Court re-appreciated the entire evidence and came to the
following conclusions:
(I) There were major contradictions in ocular evidence and medical
evidence. As per the statement of Geeta (PW.16), Kaku Singh, deceased
and Darshan Singh, respondent-accused had consumed liquor in the
evening but this was not corroborated from medical evidence. Dr.
Rajendra Gupta (PW.17) has admitted that there was nothing to show that
deceased Kaku Singh had consumed liquor. Her version of giving a pill
for intoxication of deceased could not be proved by medical evidence.
The viscera was sent to Forensic Science Laboratory but the report did
not show that any sort of poison had been administered to the deceased.

(II) The version of Geeta (PW.16) did not appear to be trustworthy
as she deposed that Darshan Singh accused, Kaku Singh deceased and the
witness had slept in the same room. It was natural that a husband and
wife would not allow a stranger to sleep with them, even if Darshan
Singh, accused, was known to them. In view of the fact that
relationship between Geeta and Chhindri Bhatni had never been cordial,
it could not be believed that Geeta (PW.16) would permit the brother of
Chhindri Bhatni to sleep with them.
(III) Geeta (PW.16) had admitted in her cross-examination that
Chhindri Bhatni had 10 brothers and none of them had ever visited her
house. Chhindri Bhatni was living in the same house with deceased and
Geeta. She further admitted that she had never seen Darshan Singh,
respondent-accused, prior to the date of incident. Even, she could not
disclose the features of the accused to the police. In such a fact-
situation, the question of sleeping all of them together could not
arise.
(IV) There could be no motive for Darshan Singh, respondent-accused,
to kill Kaku Singh, deceased for the reason that even as per deposition
of Geeta (PW.16), Kaku Singh had severed the relationship with Chhindri
Bhatni long ago.
(V) The name of Darshan Singh, respondent-accused, did not find
place in the FIR. The accused persons had been mentioned therein as
Chhindri Bhatni and her brother.
(VI) So far as the recovery of kulhari (Ext. P-12) is concerned,
even if believed, did not lead to any interference for the simple
reason that FSL report (Ext. P-64) revealed that there was no human
blood found on kulhari. Therefore, the evidence of recovery of kulhari
could not be used as incriminating circumstance against the accused.
(VII) The evidence on record revealed that Geeta (PW.16) and Jaswant
Singh (PW.1) were apprehending that Kaku Singh deceased would alienate
his irrigated land to Chhindri Bhatni and, therefore, it became
doubtful whether Darshan Singh, respondent/accused could have any
motive to kill Kaku Singh, deceased.
(VIII) The evidence of Geeta (PW.16) was recorded in sign language
with the help of her father Jaswant Singh (PW.1). Admittedly, neither
she nor her father while acting as her interpreter had been
administered oath. The signs have been recorded alongwith its
interpretation. There was possibility of misinterpretation of the
signs made by her, as her father could do it purposely, the statement
of Geeta (PW.16) did not inspire confidence.
(IX) Deposition of Geeta (PW.16) could not be relied upon as it was
not safe for the court to embark upon the examination of deaf and dumb
witness, on her information without the help of an expert or a person
familiar of her mode of conveying ideas to others in day to day life.
Further, such a person should not be an interested person. In the
instant case, Jaswant Singh (PW.1) had participated in the
investigation and was an interested person.

16. We have also gone through the entire evidence and concur with
the findings recorded by the High Court.
Basic argument which has been advanced by both the parties before
us is on the admissibility and credibility of sole eye-witness Geeta
(PW.16).
Admittedly, Geeta (PW.16) had not been administered oath, nor
Jaswant Singh (PW.1), her father who acted as interpreter when her
statement was recorded in the court. In view of provisions of Sections
4 and 5 of the Oaths Act, 1969, it is always desirable to administer
oath or statement may be recorded on affirmation of the witness. This
Court in Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952
SC 54, has categorically held that the main purpose of administering of
oath to render persons who give false evidence liable to prosecution
and further to bring home to the witness the solemnity of the occasion
and to impress upon him the duty of speaking the truth, further such
matters only touch credibility and not admissibility.

However, in view of the provisions of Section 7 of the Oaths Act,
1969, the omission of administration of oath or affirmation does not
invalidate any evidence.

17. In M.P. Sharma & Ors. v. Satish Chandra, District Magistrate,
Delhi & Ors., AIR 1954 SC 300, this Court held that a person can “be a
witness” not merely by giving oral evidence but also by producing
documents or making intelligible gestures as in the case of a dumb
witness (See Section 119 of the Evidence Act) or the like.

18. The object of enacting the provisions of Section 119 of the
Evidence Act reveals that deaf and dumb persons were earlier
contemplated in law as idiots. However, such a view has subsequently
been changed for the reason that modern science revealed that persons
affected with such calamities are generally found more intelligent,
and to be susceptible to far higher culture than one was once supposed.
When a deaf and dumb person is examined in the court, the court has to
exercise due caution and take care to ascertain before he is examined
that he possesses the requisite amount of intelligence and that he
understands the nature of an oath. On being satisfied on this, the
witness may be administered oath by appropriate means and that also be
with the assistance of an interpreter. However, in case a person can
read and write, it is most desirable to adopt that method being more
satisfactory than any sign language. The law required that there must
be a record of signs and not the interpretation of signs.

19. In Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182, this
Court has considered the evidentiary value of a dying declaration
recorded by means of signs and nods of a person who is not in a
position to speak for any reason and held that the same amounts to a
verbal statement and, thus, is relevant and admissible. The Court
further clarified that `verbal’ statement does not amount to `oral’
statement. In view of the provisions of Section 119 of the Evidence
Act, the only requirement is that witness may give his evidence in any
manner in which he can make it intelligible, as by writing or by signs
and such evidence can be deemed to be oral evidence within the meaning
of Section 3 of the Evidence Act. Signs and gestures made by nods or
head are admissible and such nods and gestures are not only admissible
but possess evidentiary value.

20. Language is much more than words. Like all other languages,
communication by way of signs has some inherent limitations, since it
may be difficult to comprehend what the user is attempting to convey.
But a dumb person need not be prevented from being a credible and
reliable witness merely due to his/her physical disability. Such a
person though unable to speak may convey himself through writing if
literate or through signs and gestures if he is unable to read and
write.
A case in point is the silent movies which were understood
widely because they were able to communicate ideas to people through
novel signs and gestures. Emphasised body language and facial
expression enabled the audience to comprehend the intended message.

21. To sum up, a deaf and dumb person is a competent witness. If
in the opinion of the Court, oath can be administered to him/her, it
should be so done. Such a witness, if able to read and write, it is
desirable to record his statement giving him questions in writing and
seeking answers in writing. In case the witness is not able to read
and write, his statement can be recorded in sign language with the aid
of interpreter, if found necessary. In case the interpreter is
provided, he should be a person of the same surrounding but should not
have any interest in the case and he should be administered oath.

22. In the instant case, there is sufficient material on record that
Geeta (PW.16) was able to read and write and this fact stood proved in
the trial court when she wrote the telephone number of her father. We
fail to understand as to why her statement could not be recorded in
writing, i.e., she could have been given the questions in writing and
an opportunity to reply the same in writing.

23. Be that as it may, her statement had been recorded with the
help of her father as an interpreter, who for the reasons given by the
High Court, being an interested witness who had assisted during the
trial, investigation and was examined without administering oath, made
the evidence unreliable. In such a fact-situation, the High Court has
rightly given the benefit of doubt and acquitted the respondent.

24. We are fully aware of our limitation to interfere with an order
against acquittal. In exceptional cases where there are compelling
circumstances and the judgment under appeal is found to be perverse,
the appellate court can interfere with the order of acquittal. The
appellate court should bear in mind the presumption of innocence of the
accused and further that the trial Court’s acquittal bolsters the
presumption of his innocence. Interference in a routine manner where
the other view is possible should be avoided, unless there are good
reasons for interference.

 

25. If we examine the judgment of the High Court in light of the
aforesaid legal proposition, we do not find it to be a fit case to
interfere with the order of acquittal.

The appeal lacks merit and, is accordingly, dismissed.

 

………………………..J.
(Dr. B.S. CHAUHAN)

 

………………………..J.
(DIPAK MISRA)
New Delhi,
May 21, 2012

 

———————–
17

 

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