Chattisgarh High Court
Rahul Alias Santu vs State Of Chhattisgarh on 13 February, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:8402-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 2228 of 2024
1 - Rahul Alias Santu S/o Surendra Sarthi, Aged About 23 Years, R/o
Ujiyarpur, Sonvarsha, P.S.-Pondi, District-Koriya (C.G.)
... Appellant
versus
1 - State of Chhattisgarh Through- Police Station- Pondi, District-
Manendragarh-Chirmiri-Bharatpur (M.C.B.) (C.G.)
... Respondent
(Cause-title taken from Case Information System) For Appellant : Mr. Abhinav Dubey, Advocate.
For State Mr. N.K. Jaiswal, Deputy Govt. Advocate.
Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 13.02.2026
1. Though the matter has been listed today for hearing on I.A. No.01/2024 which is an application for suspension of sentence and grant of bail, however, with the consent of the present criminal appeal is heard finally.
2. In view of the above, I.A. No.01/2024 is disposed of.
3. The present criminal appeal has been filed by the appellant Digitally signed by MOHAMMED AADIL KHAN against the judgment of conviction and sentence dated Date: 2026.02.19 11:54:08 +0530 2 25.10.2024 passed by the learned Additional Session Judge F.T.S.C. (POCSO) Manendragarh, District Koriya (C.G.) in Special Criminal Case No. 33/2023, whereby the appellant has been convicted and sentenced in the following manner with a direction to run all the jail sentences concurrently:-
Conviction Sentence
U/s 366 of the IPC R.I. for 3 years and fine of Rs.100/-, in
default of payment of fine further S.I.
for 1 month,
U/s 376(3) of the IPC R.I. for 20 years and fine of Rs.500/-,
in default of payment of fine further S.I.
for 2 months,
U/s 6 read with Section R.I. for 20 years and fine of Rs.500/-, 5 (V) of POCSO Act in default of payment of fine further S.I. for 2 months.
4. Brief facts of the case are that on 22-10-2021 the mother of the victim, PW-1 lodged a written report to the police that at about 06:30 p.m. when she had gone to tap (uy) to fetch water and when she came back to her house, she saw the accused in her house. She scolded him and he went away. After some time when she had gone to the hotel of her son, her neighbour informed her that her daughter is being taken by the accused towards shrubs.
She rushed to her house and could not found her daughter there.
She was in search of her daughter along with other persons of the vicinity and when she called by her name, then she raised her voice and when they had gone to the place they saw the accused 3 running from that place and her daughter was also there naked.
They took her daughter back to the house and then she informed the incident that the accused committed rape upon her. Her daughter is minor, dumb and differently abled. The dehati nalisi Ex.-P/1 was recorded and the victim was sent for her medical examination to Community Health Center Manendragarh where Doctor Kumari Nivedita PW-3 medically examined her and gave her report Ex.-P/5. While medically examining the victim the doctor noticed abrasions present on both legs and observed that the victim was not cooperating in her medical examination. She opined that sexual intercourse cannot be appreciated properly as the person was not cooperating during examination and advised UPT, HIV, HbsAg and VDRL test. Two slides of vaginal swab of the victim were prepared, sealed and handed over to police for its chemical examination. The spot map Ex.-P/2 was prepared by police. Another spot map Ex.-P/11 was prepared by the Patwari.
With respect to age and date of birth of the victim police has seized progress report card of the victim of class 4 vide seizure memo Ex.-P/4 in which the date of birth of the victim is mentioned as 13-02-2007. The school register Ex.-P/8C was seized from the school vide seizure memo Ex.-P/7 and after retaining its attested true copy Ex.-P/8C the register was returned back to the school.
The certificate with respect to her date of birth issued by Head Master of the school has also been seized vide seizure memo Ex.-P/9. The FIR Ex.-P/28 was registered against the appellant for 4 offence under Section 363, 376 of the IPC and Section 4 of POCSO Act. The medical certificate of physically handicapped person issued by the District Medical Board Korea Ex.-P/27C has also been seized by police which shows that the victim has suffered from Mental Retardation with Cerebral Palsy and her disability is 60%. The appellant was arrested on 22-10-2021 and he too was sent for his medical examination to Community Health Center Manendragarh where he was medically examined by PW-
5 Doctor O.L. Verman who gave his report Ex.-P/10. According to the medical examination report of the appellant, the appellant was able to perform sexual intercourse. The vaginal slides of the victim, her clothes, semen slide of the appellant and his underwear were sent for chemical examination to regional FSL, Ambikapur, District Surguja from where report Ex.-P/24 was received and according to the FSL report, semen and sperm was found on the vaginal slide of the victim, semen slide of the appellant and his underwear. Statement of the witnesses under Section 161 of the Cr.P.C. and statement of the victim under Section 164 of the Cr.P.C. have been recorded and after completion of usual investigation charge sheet was filed against the appellant for offence under Section 363, 376(2)(B) of the IPC and Section 4 of the POCSO Act before the learned trial Court.
5. The learned trial Court has framed charge against the appellant for offence under Section 363, 366, 376(2)(l), 376(3) of the IPC 5 and Section 5(V)/6 of the POCSO Act. The appellant denied the charge and claimed trial.
6. In order to prove the charge against the appellant the prosecution has examined as many as 13 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. has also been recorded in which he denied the circumstances that appeared against him, pleaded innocence and has submitted that he has been falsely implicated in the offence.
7. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentence him as mentioned in the earlier part of this judgment. Hence, this appeal.
8. Learned counsel appearing for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt.
There are material omissions and contradictions in the evidence of the prosecution witnesses which cannot be made basis to convict him for the offence in question. The evidence of the victim has been recorded through sign language and she was assisted by her mother who is an interested witness. From the evidence of the victim it has not been established that the appellant committed rape upon her. He would further submit that no external injuries have been found on the body of the victim and there is no sign of any struggle. Even as per the allegation made by the victim and her mother, there is no alarm raised by victim at the time of 6 alleged incident. Recording of the evidence of the victim through sign language by mother would prejudice the trial as well as defence of the accused and the learned trial Court should have recorded her evidence through any independent and expert with sign language. The evidence produced by the prosecution is not sufficient to hold the accused guilty for the alleged offence. He would further submit that the prosecution has also failed to establish that the victim was minor on the date of incident and less than 18 years of age, further she was suffered from any mental or physical disability. Merely producing certificate allegedly issued by the District Medical Board is not sufficient to hold her differently abled. The school register has not been proved in accordance with law and it cannot be relied upon to determine the age of the victim. Therefore, there is no sufficient evidence against the appellant and he is entitled for acquittal.
9. Per contra, learned counsel appearing for the State has supported the impugned judgment and submits that but for minor omission and contradiction the evidence of the prosecution witnesses are reliable and sufficient to hold guilt of the appellant for the alleged offence. Though the evidence of the victim has been recorded through sign language with the help of her mother, but it has been recorded in presence of the accused and he has not made any objection at that time. Further, the manner in which the victim gave her evidence in sign language that too before the Court, it cannot be said that she was being influenced by her mother in any 7 manner or her evidence is not satisfying the requirement of recording evidence of disabled person. The injuries on her thigh were found by the doctor and in the FSL report semen and sperm were found on her vaginal slide which clearly established the guilt of the appellant. Further, her mother has seen the accused fleeing from the place where her daughter was found in half naked condition and her clothes were disturbed. All these evidence are sufficient to hold him guilty which the learned trial Court has rightly appreciated. He would further submit that the age of the victim has been proved by the school records and evidence of PW-4 who was In-charge Head Master of the school. Therefore, there is no merit in the appeal and the same is liable to be dismissed.
10. We have heard learned counsel for the parties and perused the record of the learned trial Court.
11. During course of the arguments when we are considering the evidence of the victim we observed that the evidence of the victim is recorded through sign language with the help of her mother who was appointed as interpreter for recording the evidence of the victim. It is alleged that the victim is partially dumb and differently abled. In support of her contention the prosecution has relied upon the document Ex.-P/27C which a certificate issued by the District Medical Board, District Hospital Korea in which it has been certified that the victim is suffering from Mental Retardation with Cerebral Palsy and her disability is 60%. The said certificate has 8 been proved by PW-13 Doctor Sunil Kumar Gupta who is President of District Medical Board, District Korea who stated that after examining the victim along with other members of District Medical Board they issued the certificate Ex.-P/27C and found her suffering from Mental Retardation with Cerebral Palsy with 60% disability. In cross-examination he admitted that the certificate was initially prepared in the year 2013 and it was renewed in the year 2017 and 2019. When it has been proved that the victim is a differently abled girl, her evidence is required to be recorded in a particular manner which has been provided in Section 118 and 119 of the Indian Evidence Act, 1872. It is necessary to notice here the said provisions of Section 118 and 119 of the Indian Evidence Act, 1872 which read as under:-
"118. Who may testify. -- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation. -- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.1
[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 or a special educator in recording the statement, and such statement shall be video graphed.]"
1 Subs. by Act 13 of 2013, s. 27 for s. 119 (w.e.f. 3-2-2013).
912. In the present case, the victim PW-2 is a dumb and differently-
abled girl. She communicated through sign language. Her mother PW-1 had interpreted her sign and no independent interpreter was appointed by the learned trial Court. Her mother PW-1 is the informant and material prosecution witness in the case. There is no record that the learned trial Court examined whether the interpreter was neutral. The mother being emotionally and personally involved cannot be equated with an independent interpreter. Her dual role as informant, material witness and interpreter of the victim, creates serious procedural irregularity.
The defect is not mere technicality, credibility of victim's testimony is foundational to the prosecution case. If medium of communication itself is questionable, the evidentiary foundation becomes vulnerable.
13. In the case of Darshan Singh @ Darshanlal Vs. State of Rajasthan, 2006 SCC OnLine Raj. 277, the Rajasthan High Court has observed in para 13 that:-
"13. A Division Bench of the Kerala High Court in Kadungoth Alavi v. State of Kerala reported in 1982 Cri LJ 94 while impressing upon the need to examine a deaf and dumb witness with the help of an expert or some other person, who is very much familiar with the witness has observed, As the learned Sessions Judge cannot be expected to have anything more than a layman's knowledge in conversing with a deaf and dumb person it was highly improper on his part to embark upon the examination of P. W. 4 without the help of an expert or a person familiar with his mode of conveying ideas to others in day-to-day life.10
The Kerala High Court dealing with the question of statement of deaf and dumb witness to be recorded by somebody else referring to the Calcutta High Court's case in Ah Soi (1926 (27) Cri LJ 805) (supra) observed as follows:
If somebody else is available, it is better the services of a person who is a witness in the case is not made use of to interpret his evidence or to converse with him. In Ah Soi v. King Emperor AIR 1926 Cal 922 : 1926 (27) Cri LJ 805, it has been held that a witness who took active part during the investigation of the case and who gave evidence before the committing Magistrate and who was willing to give evidence on the side of the prosecution in the Sessions trial should not be chosen as interpreter. The Calcutta High Court said that this is opposed to the elementary ideas of justice.
Thus, before recording the statement of deaf and dumb witness, the court is required to ascertain that he possess the requisite amount of intelligence, and that he understands the nature of oath. Not only this, but he is also required to record the satisfaction to that effect. The court is required to ascertain, if the witness either by writing or sign can make intelligible of what he has to speak. If he is able to communicate his statement perfectly by writing. It will be more satisfactory method of taking evidence. When such a witness is not able to write, then he can make sign showing what he wants to say. If. it is by signs, those signs must be recorded and not only the interpretations of those signs. It is necessary to enable the appellate court to know whether the interpretation of the sign is correct or not. It is not safe for a court to embark upon the examination of a deaf and dumb witness on his own without the help of an expert or a person familiar with his mode of conveying ideas to others in day-to- day life. However, such a person should not be an interested person, who had participated in the investigation and who is also a witness in the same trial."
14. The aforesaid judgment of Rajashan High Court has been upheld by the Hon'ble Supreme Court in the case of State of Rajasthan 11 Vs. Darshan Singh alias Darshan Lal, (2012) 5 SCC 789 and in para 29 of its judgment has held that:-
"29. 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."
15. The crux of the matter was that the interpreter should be a person of the same surrounding, but should not have any interest in the case, but in the present case the interpreter appointed by the learned trial Court is the mother of the victim and who is the material witness in the case who has been examined as PW-1 and informant of the case.
16. In the matter of Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat, (2004) 4 SCC 158 the Hon'ble Supreme Court emphasises that fairness of trial is foundation of criminal jurisprudence and the courts must intervene where procedural irregularities impair justice. Where the interpreter is also a material witness particularly complainant, possibility of influence whether intentional or unconscious cannot be ignored. (see also Alavi Vs. State of Kerala, 1982 CrLJ 1994).
17. Under the provision of Section 427 of Bhartiya Nagrik Suraksha Sanhita,2023 (in short 'BNSS, 2023')/386 of Code of Criminal Procedure, 1973 (in short 'the Cr.P.C.') the appellate Court is empowered to order retrial where the interest of justice so 12 demands, subsection (b)(i) of Section 427 of BNSS, 2023 reads as under:-
Powers of Appellate Court.
427. After perusing such record and hearing the appellant or his advocate, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 418 or section 419, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--
xxxxxx xxxxxx
(b) in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or"
18. The Hon'ble Supreme Court in the matter of Ajay Kumar Ghoshal and others Vs. State of Bihar and another, (2017) 12 SCC 699 has observed in para 10 to 17 of its judgment that:-
"10. Section 386 Cr.P.C. deals with the powers of the appellate court. As per Section 386 (b) Cr.P.C,in an appeal from a conviction, the appellate court may:
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.
11. Though the word "retrial" is used under Section 386(b)(i) Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the court refused to hear certain witnesses who were supposed to be heard.
1312. "De novo" trial means a "new trial" ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold "de novo" trial. But the question is when such power should be exercised. As stated in Pandit Ukha Kolhe vs. State of Maharashtra (1964) SCR 926, the Court held that: (AIR p. 1537, para 11) "11. An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons."
13. This Court, in State of M.P. v. Bhooraji, (2001) 7 SCC 679 while dealing with the question whether the High Court should have quashed the trial proceedings only on account of declaration of the legal position made by the Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act, this Court stated: (SCC p. 685, para 8) "8. ....A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert "a failure of justice".
Observing that any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial, inin State of M.P. v. Bhooraji, (2001) 7 SCC 679, the Court went on to say further as follows: (SCC p. 685 para 8) "8....This is because the appellate court has plenary powers for revaluating and reappraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be 14 a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence, the said course can be resorted to when it becomes unpreventable for the purpose of averting "a failure of justice". The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the court and deposed their versions in the very same case. To them and the public the re- enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation."
14. In Bhooraji's case [State of M.P. v. Bhooraji, (2001) 7 SCC 679], the Court referred to Chapter XXXV of the Code and, particularly, Sections 461, 462 and 465 (1). After noticing the above provisions, the Court observed in paragraphs (15) and (16) of the order as follows: (SCC p.687) "15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
16. What is meant by "a failure of justice" occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani vs. State of Karnataka {2001 (2) SCC 577} thus: (SCC p.585, para 23) '23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment, 1977 (1) All ER 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."
15. In Gopi Chand vs. Delhi Administration, AIR 1959 SC 609, a Constitution Bench of this Court was concerned with the criminal appeals wherein plea of the validity of the trial and of the orders of conviction and sentence was raised by the appellant. That was a case where the appellant was charged for three offences which were required to be tried as a warrant case by following the procedure prescribed in the Code of Criminal Procedure, 1860 but he was tried 15 under the procedure prescribed for the trial of a summons case. The procedure for summons case and warrants case was materially different. The Constitution Bench held that having regard to the nature of the charges framed and the character and volume of evidence led, the appellant was prejudiced; accordingly, set aside the orders of conviction and sentence and the Constitution Bench held as under:- (AIR pp. 619-20, para 29) "29. ....the offences with which the Appellant stands charged are of a very serious nature; and though it is true that he has had to undergo the ordeal of a trial and has suffered rigorous imprisonment for some time that would not justify his prayer that we should not order his retrial. In our opinion, having regard to the gravity of the offences charged against the appellant, the ends of justice require that we should direct that he should be tried for the said offences de novo according to law. We also direct that the proceedings to be taken against the appellant hereafter should be commenced without delay and should be disposed as expeditiously as possible."
16. In Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat, (2004) 4 SCC 158, [BestBakery case] being an extraordinary case, the Supreme Court was convinced that the witnesses were threatened to keep themselves away from the Court and in such facts and circumstances of the case, not only the Court directed a 'de novo' trial but made further direction for appointment of the new prosecutor and retrial was directed to be held out of the State of Gujarat. The law laid down in Best Bakery case for retrial was in the extraordinary circumstances and cannot be applied for all cases.
17. After considering the question a "speedy trial" and "fair trial" to a person accused of a crime and after referring to a catena of decisions and observing that guiding factor for retrial must always be demand of justice, in Mohd. Hussain @ Julfikar Ali v. State (NCT of Delhi), (2012) 9 SCC 408, this Court held as under: (SCC pp. 427-28, paras 40-41) "40. "Speedy trial" and "fair trial" to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and 16 gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of an accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered.
41. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked."
19. Article 21 of the Constitution of India guarantees of the fair trial.
Fairness exists to the accused, victim and the integrity of the judicial process. The irregularity in the present case strikes at the manner of recording the most crucial evidence.
20. From the evidence of the victim PW-2 it transpires that her mother has been appointed as interpreter by the Court and then the evidence has been recorded through her mother in sign language. Her mother though has stated that she could understand the sign language of her daughter, but she is not expert and has not obtained any expertization in the same field. The interpreter so appointed for the witness shall not be interested witness and should be independent one. It is also for the reason that the accused is also unaware about the said sign language.
1721. Considering the entire facts and circumstances of the case and the aforesaid law laid down by the Hon'ble Supreme Court and the High Courts, the irregularity in the present case, ends of justice would be best served by directing retrial of the case afresh and recording of the victim's evidence through an independent interpreter.
22. Having considered the manner in which the evidence of the victim has been recorded by appointing her mother as interpreter for sign language, we are of the considered opinion that it would prejudice the trial of the case, the impugned judgment of conviction and sentence can be set aside on this ground alone and the matter may be remitted back to the learned trial Court for its retrial.
23. Therefore, without commenting anything over merits and aspects of the case, we allow the present criminal appeal filed by the appellant and set aside the impugned judgment of conviction and sentence passed by the learned trial Court and restore Special Criminal Case No.33/2023. The matter is remitted back to the learned trial Court for its retrial following the procedure prescribed under the provisions of Section 118 and 119 of the Indian Evidence Act, 1872 with respect to recording the evidence of the victim by appointing independent expert in sign language. The learned trial Court is directed to conduct retrial of the case and pass the judgment afresh in accordance with law after providing complete opportunity of hearing and examination of the witnesses to the accused. All this exercise shall be done by the learned trial Court within four months from the date of receipt of record of the trial Court.
24. The record of the trial Court be sent back immediately to the concerned trial Court.
1825. The parties are directed to appear before the learned trial Court on 09-03-2026.
26. The appellant is at liberty to avail remedy of claiming bail before the appropriate Court.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Aadil