Hanumant vs State Of Maharashtra

Heard Shri. Nilesh S. Ghanekar, learned counsel for the appellant and Shri. S. J. Salgare, learned APP for respondent/State.

Considering the important issue of mode of recording of evidence of deaf and dumb victim girl, the appeal is admitted.

With the consent of the parties, the matter is taken up for final disposal at the stage of admission.

The appellant has been convicted for offence u/s 376(2)(1) IPC for committing rape on a deaf and dumb girl and is sentenced to suffer RI for 10

years and to pay fine of Rs. 10,000/Â, in default to suffer RI for three months. He is also convicted for offence u/s 323 IPC. On 16.11.2016, the

victim's brother lodged FIR at Shirur Police Station, Tq. Shirur Kasar, Dist. Beed. As per the FIR, the informant had five sisters and the victim was

deaf and dumb. She was aged 23 years. Since 7Â8 days prior to the FIR, the victim girl had abdominal pains and was feeling weakness. When she

was taken to the Civil Hospital, it was disclosed that she was pregnant for five months. When the informant and his parents made enquiry with her as

to with whom she had relations, she pointed by signs the house of the accused and stated that the person residing there had entered her house before

Ramjan and used force to press her neck and thereafter committed sex with her. FIR was registered at Crime No. 226/2016 and was investigated

into. The investigation revealed that the victim was illiterate and was not even knowing the scientific sign language of the deaf and dumb persons. Her

statement was recorded through an interpreter from mentally retarded school and its video recording was done.

Shri. S. J. Salgare, learned APP submits that, the victim girl has delivered a child and there was DNA testing which proved that the accused was

biological father of the child. The accused has taken a defence of total denial. Shri. Ghanekar, learned counsel for the appellant submits that, when

witness or victim girl is deaf or dumb, her evidence should be recored as per Section 119 of the Evidence Act. He relies on the judgment of the Apex

Court in State of Rajasthan vs. Darshan Singh @ Darshan Lal reported in 2012 AIR SCW (S.C.) 303, 6wherein it is laid down that, 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.

Shri. Ghanekar submits that, since the victim girl was illiterate, first course to record her evidence in writing was not possible but the ld. trial Judge

committed error in recording her statement with the aid of interpreter without giving him oath. Besides, the interpreter was the same person who had

recorded her statement u/s 161 Cr.P.C. The ld. trial Judge was bound to record the signs made by victim girl while giving answers. He argued that,

though there is no specific defence that the act was committed with the consent, the prosecution is bound to show that if there was sexual intercourse

it was against the will or without the consent of the victim girl. She was major and cannot be presumed to be mentally retarded or idiot. She is capable

of giving consent and if the act has taken place with her consent, there would be no offence. He points out that, the victim girl had not disclosed the

incident to anybody for a period of more than five months. Even the FIR was not immediately lodged after knowledge of her pregnancy. Shri.

Ghanekar relies on the evidence of Dr. Babasaheb Dhakane (PW6) to submit that the pregnancy of the victim girl was detected by her relatives in

August 2016 only whereas the FIR is filed in November 2016. The victim's brother has turned hostile. He also pointed out that, as per Section 119, it

is mandatory to record the evidence of deaf and dumb person with videography. This has not been followed. The victim girl was not in a position to tell

her name and age. No questions were asked to make enquiry about her intellectual capacity. Considering the facts, there was no fair trial and the

accused has been prejudiced.

Per contra, learned APP submits that, statement of deaf and dumb was recorded with the help of interpreter and it was also videographed. Her

evidence is supported with DNA report shows that the accused is biological father of the child begotten by her. He refers to the evidence of PW3

that, she has identified the accused at the time of her evidence and showed by signs that he had pressed her throat and had moved her hand on her

stomach indicating that the accused is responsible for her pregnancy.

Considering the facts, the most material issue in this matter is, whether PW3 the victim girl was consenting party or not? She was major and it is

nobody's case that she was not sound. She was capable of giving consent. There are some facts which may support the defence story that she was

consenting as there was delay in reporting the matter to police. Nonetheless, there can be reasons which can be accepted for delay in lodging the FIR

in such matters.

I find that, the ld. trial Judge while dealing with a case of deaf and dumb girl ought to have considered the provisions of Section 119 and the apex

court's judgment on the same. The trial Court did not verify her understanding capacity. Though evidence of the witness was recorded by appointing

an interpreter, the ld. trial Judge has not followed certain conditions. No oath was administered to the interpreter that he would fully and correctly

interpret the questions put to the witness and shall also fully and correctly interpret the answers given by the witness in sign language to the court. As

per Section 119 of Evidence Act amended from 03.02.2013, the proviso lays down that, when 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. The apex Court

has observed that, the Judge has not only to record the interpretation given by the interpreter but also he has to record the signs made by the witness.

This is difficult and now the videography will solve the problem faced by the Judge in recording the signs. These provisions are not followed.

Considering the facts, it is difficult to determine whether the prosecutrix was a consenting party or not. In the light of these facts, the conviction

cannot be sustained and the matter will have to be remanded to the Sessions Judge with direction to record the evidence of PW3Âvictim girl afresh by

following the provisions of Section 119 as interpreted by the apex Court in Darshan Singh @ Darshan Lal's case (supra). The Judge shall record the

competency to understand and interpret the sign language of deaf and dumb person. The Judge shall give oath to the interpreter for correctly

interpreting the questions to the witnesses and the answers given by the victim to the court. Once it is done, the evidence shall be recorded and the

same shall be videographed. The prosecution shall make arrangement of the videography of the evidence. The focal point of the evidence should be,

whether the act was with consent or without consent. However, the parties shall be at liberty to lead evidence and challenge the same on any other

legally permissible point according to law.

Considering the facts the appeal is partly allowed. The conviction is set aside. The matter is remanded to the trial Court to record evidence of the

prosecutrix again and decide the matter afresh. Since the accused is in Jail from 17.11.2016, he is permitted to file fresh Bail Application which the

trial Court shall consider on its own merits.

The appellant is directed to remain present in the trial Court on 08.07.2019. The ld. Trial Judge shall hear the matter expeditiously and shall dispose

it of within one month from the date of receipt of record and appearance of the parties. The Registrar shall forward the record immediately.

In view of disposal of main appeal, nothing survives in the connected Criminal Application and same stands disposed of.