Baneshwar Marandi & Ors vs The State of Jharkhand

Under order dated 15.09.2017 a report was called for from the concerned court about the status of the case and also xerox copy of the attested to be true copy of evidence of PW-4 as it was filed by the learned counsel for the petitioner alongwith the bail application.

Further the trial court was directed to issued notice to PW-4, the victim, PW-1-Father and PW-3-Mother of the victim and after their appearance the trial court was directed to explore the possibility to provide one of the benefits out of 9 schemes as sponsored by NALSA and executed by the JHALSA and DLSA in Association with Secretary, DLSA, Sahibganj under the guidance of Principal District and Sessions Judge-cum-Chairman, DLSA, Sahibganj and also provide interim compensation to the victim under the Jharkhand Victim Compensation Scheme and submit its report.

Perused the report dated 15.12.2017 submitted by Chairman DLSA, Sahibganj which reveals that the PW-4 appeared alongwith her father and the scheme for her rehabilitation was formulated and it was decided for sanction of Rs.3 lac in favour of the victim-PW-4 under the Jharkhand Victim Compensation Scheme.

Further, for providing one of the benefits out of 9 schemes has been discussed in the meeting of DLSA, Sahibganj on 30.11.2017 in which the Deputy Commissioner-cum-Vice Chairman, DLSA, has assured to extend the same at the earliest.

Further the xerox copy of the attested to be true copy of evidence of PW-4 has been submitted by the trail court and the report reveals that out of 7 witnesses, 6 witnesses have been examined and the doctor is yet to be examined and the next dated fixed in this case is 01.12.2017.

Since this case has been filed u/s 376(G) of the IPC and Section 4 of POCSO Act and the victim is deaf and dumb and only with the support of interpreter his evidence was recorded, but the report does not reveals that as to whether while recording the evidence of PW-4, the victim, the trail court has followed the provisions of section 119 of the Indian Evidence Act, which reads as follows:- 119. 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 of a special educator in recording the statement, and such statement shall be video graphed.

In view of the law laid down by the judgment of Hon''ble Karnataka High Court in Dilawarsab Alisab Jakati Vs. State of Karnataka, reported in 2005 Cri.LJ 2687, Hon''ble Andhra Pradesh High Court in The Public Prosecutor High Court of A.P. Vs. Lingisetty Sreenu reported in 1997 Crl. LJ 4003, Hon''ble Kerala High Court in Kadungoth Alavi Vs. State of Kerala reported in 1982 CrLJ 0094 and Hon''ble Gujarat High Court in Kumbhar Musa Alib Vs. State of Gujarat reported in AIR 1966 Gujarat 101 have been complied or not?

It appears that the victim is minor and the deposition of PW-4 does not reveals that the provision of Section 36 of the POCSO Act has been complied or not.

Under the said circumstance, call for a fresh report from the court below as to whether the aforesaid judgment (supra) provision of law observed by the court regarding the evidence of PW-4.

Further the Principal District Judge-cum-Chairman, DLSA, Sahibganj is directed to ensure as to whether the compensation of Rs.3 lac has been paid to the victim or not and also submit a report regarding providing one of the benefits out of 9 schemes as sponsored by NALSA and executed by the JHALSA. Let the Member Secretary, JHALSA, Nyay Sadan Doranda Ranchi be added as O.P. No.2.

Let a copy of this bail application alongwith the entire order-sheet be handed over to Member Secretary, JHALSA, Nyay Sadan Doranda Ranchi latest by 15.01.2018 and he is directed to take instruction and submit a report regarding the amount which was released by the State Government under the Jharkhand Victim Compensation Scheme for the Sahibganj District.

The required reports must be submitted on or before 15.03.2018 before this Court.

List this case on 15.03.2018.

Till then, further proceeding in connection with Ranga P.S. Case No. 73/2015, G.R. No.693/2015 subsequently S.C. No.92/2016 pending in the court of Addl. Sessions Judge-I, Rajmahal shall remain stayed.

Let a copy of this order be communicated to the Principal District Judge-cum-Chairman, DLSA, Sahibganj and the Secretary, DLSA, Sahibganj.