Punjab-Haryana High Court
Raja @ Rajender And Others vs State Of Haryana on 7 December, 2012
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No.S. 611 SB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.S. 611 SB of 2009
Date of decision 07.12.2012.
Raja @ Rajender and others
...... Appellants.
versus
State of Haryana
..... Respondent.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present : Mr. Baldev Singh, Senior Advocate with
Mr. Deepinder Singh, Advocate for appellants.
Mr. Amandeep Singh, AAG, Haryana.
K.C.PURI, J.
Appellants-Raja @ Rajender and others have directed the present appeal against the judgment dated 12.2.2009 and order dated 17.2.2009 passed by Shri A.D.Gaur, learned Additional Sessions Judge, (Fast Track Court), Bhiwani vide which the accused-appellants stood convicted under Sections 366 and 376 (2)(g) of the Indian Penal Code ( in short - the IPC ) and sentenced to undergo rigorous imprisonment for a Criminal Appeal No.S. 611 SB of 2009 2 period of five years and to pay a fine of Rs.500/- each and in default of payment of fine to further undergo simple imprisonment for a period of fifteen days each under Section 366 read with Section 34 of the IPC. They were further sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/- each. In default of payment of fine to further undergo simple imprisonment for a period of fifteen days each under Section 376 (2)(g) read with Section 34 of the IPC. Both the sentences were however ordered to run concurrently.
2. The case of the prosecution in brief is that on 9.12.2006 at about 4.45p.m., prosecutrix, a deaf and dumb woman went to answer the call of nature, in the area of village Tosham and did not return to her house. The complainant had gone to attend the marriage in the neighbourhood and returned back at about 8/9p.m. and he was told by his children that their mother had not returned. He suspected that his wife being helpless and handicapped might have been kidnapped by anyone with bad intentions. The complainant along with his nephew Mukesh went to the jungle near the hillock and at about 11.00p.m. found his wife lying in unconscious state near the temple Baba Mungipa. He tried to revive his wife and brought her home where she regained conscious and while weeping disclosed by signs that five boys committed rape upon her after putting cloth in her mouth and she disclosed by giving signals that they should be arrested. She also asked him to call her brother Mahabir. He further stated that Raj Kumar, Raja and three other boys had kidnapped his deaf and dumb wife and committed rape upon her. On the basis of aforesaid statement, FIR was registered and Criminal Appeal No.S. 611 SB of 2009 3 investigation commenced. Statements of the prosecution witnesses were recorded. Site plan of the place of occurrence was also got prepared. The prosecutrix was got medico-legally examined. The accused were arrested. After completion of necessary investigation, challan against the accused was presented in the Court. Accused Pawan was declared proclaimed offender.
3. The Illaqa Magistrate after complying with the formalities under Section 208 of the Cr.P.C., committed the case to the Court of Sessions vide order dated 22.10.2007.
4. The trial Court framed charges under Sections 376 (2)(g) and 366 read with Section 34 of the IPC, to which the accused pleaded not guilty and claimed trial.
5. In order to prove its case prosecution examined HC Prem Kumar (PW-1), Indiwar SIS, SP Office, Bhiwani (PW-2), Ramesh Kumar, Patwari Halqa, Tosham II, Dr. Sudha Garg (PW-4), Dr. Ravinder Singh (PW-5), Dr. Niraj Indora (PW-6), HC Raj Pal (PW-7), Shri Sanjay Sandhir, JMIC, Panipat (PW-8), Shri V.P.Sirohi, ACJM, Kaithal (PW-9), Satpal complainant (PW-10), prosecutrix (PW-11), SI Virender Singh (PW-12), Constable Tajender Kumar (PW-13), EASI Rajbir Singh (PW-14) and closed the prosecution evidence.
6. After closure of the prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure. They pleaded their innocence and stated to be falsely implicated in the present case. However, they did not lead any evidence in defence. Criminal Appeal No.S. 611 SB of 2009 4
7. The trial Court, after hearing the learned counsel for the parties, convicted and sentenced the accused vide judgment dated 12.2.2009 and order dated 17.2.2009, as aforesaid.
8. Feeling dissatisfied with the aforesaid judgment dated 12.2.2009 and order dated 17.2.2009, the present appeal has been preferred by the accused.
9. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
10. Learned counsel for the appellants has submitted that the case of the prosecution hinges upon the testimony of the prosecutrix alone. The prosecutrix is admittedly a deaf and dumb lady and her testimony can only be relied upon in case the same is inconsonance with Section 119 of the Indian Evidence Act. The said provision clearly lays down that deaf and dumb person which can make things intelligible by writing or singing and that writing must be written and signed made in the open Court. In the present case, the prosecutrix was able to write but her testimony has not been recorded in writing. The said fact makes the prosecution case doubtful.
11. According to the prosecution story, Rajbala (sister-in-law) of the prosecutrix (Jethani) acted as an interpreter. It is contended that Rajbala interpreter is an interested witness and wants the success of the case by hook and crook. There was every possibility of manipulating the things in favour of the prosecution by the interpreter. During the course of recording statement under Section 164 of the Cr.P.C. of the prosecutrix, Satpal husband of the prosecutrix, acted as interpreter. Husband of the prosecutrix Criminal Appeal No.S. 611 SB of 2009 5 has not appeared in the Court as interpreter for the reasons best known to the prosecution. It is further contended that in this case the interpreter was appointed by the Court but that interpreter has categorically stated that she was unable to understand the signs and gestures of the prosecutrix.
12. It is further contended that Rajbala interpreter has not taken the Oath that she will interpret the things truly. It is contended that in case the testimony of the prosecutrix is taken out in that case, the prosecution story falls on the ground as sand castle. It is contended that the Hon'ble Apex Court in authority State of Rajasthan vs. Darshan Singh @ Darshan Lal reported as 2012 (2) RCR (Criminal ) page 987 held that the High Court has rightly discarded the testimony of deaf and dumb witness on the ground that the witness has not been administered oath and also on the ground that person who has been appointed as interpreter is an interested person in the success of the case. So, it is submitted that statement of prosecutrix be disbelieved and all the accused be acquitted by giving them benefit of doubt.
14. In reply to the above noted submissions, the learned Assistant Advocate General, Haryana has supported the judgment of the trial Court. It is submitted that facts of the case titled State of Rajasthan vs. Darshan Singh @ Darshan Lal's case (supra) are totally distinguishable to the facts of the present case. Oath was administered by the Court to the prosecutrix in this case whereas in authority State of Rajasthan vs. Darshan Singh @ Darshan Lal's case (supra) Oath was not administered. The other grounds for discarding the testimony of deaf and dumb person in authority State of Criminal Appeal No.S. 611 SB of 2009 6 Rajasthan vs. Darshan Singh @ Darshan Lal's case (supra) was that the interpreter was an interested person. However, counsel for the State has submitted that in the present case, the gesture/sign made by the prosecutrix has been recorded by the trial Court. Even if the gestures made by the prosecutrix is taken into account, in that case a clear case of gang rape is made out. The prosecutrix was a victim in the present case. She has categorically recognized the appellants as assailants of sexual assault i.e. gang rape upon her. In authority State of Rajasthan vs. Darshan Singh @ Darshan Lal's case (supra), father and victim were only the witnesses and there is nothing on the file that gestures made by that witness were recorded by the trial Court. The facts of the present case are totally distinguishable to the facts of State of Rajasthan vs. Darshan Singh @ Darshan Lal's case (supra). There was no reason for the prosecutrix and her family member to falsely implicate the appellants. No motive for false implication of accused/appellants in such a heinous crime has been brought on the record. The trial Court has observed that the accused belongs to different localities and the prosecution has no axe to grind against them. A deaf and dumb married lady having children was subjected to rape at the hands of appellants. The medical evidence corroborated the version given by the prosecutrix. Learned State counsel has further submitted that though a case of gang rape is made out against the appellants and minimum prescribed sentence for that offence is ten years, however, the trial Court has awarded the imprisonment for seven years only and the accused have been convicted under Section 376 of the IPC only. However, he feels Criminal Appeal No.S. 611 SB of 2009 7 handicap for getting the appellants sentenced enhanced under Section 376 (2)(g) of the IPC as there is no appeal preferred by the State. So, prayer has been made for dismissal of the appeal.
15. I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties.
16. In order to properly appreciate the facts of the case, the provisions of Section 119 of the Indian Evidence Act, 1872 (hereinafter referred as Act ) are reproduced as under :-
"119. Dumb witnesses.- 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 sign; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence."
17. So, from the bare perusal of the Section 119 of the Evidence Act, it is revealed that the statement of deaf and dumb witness can be recorded by writing or by signs. Shri Sanjay Sandhir, Judicial Magistrate Ist Class, Panipat (PW-8) has stated that prosecutrix is illiterate and she can write her name only. So, in these circumstances, the arguments advanced by the counsel for the appellant that her testimony should have been recorded in writing cannot be accepted as according to Shri Sanjay Sandhir, Judicial Magistrate Ist Class, Panipat (PW-8), the prosecutrix was illiterate. Merely she has signed the statement does not prove the fact that she could make statement in writing. So, the only other manner in which statement of prosecutrix could be recorded is by way of her signs/gestures.
18. Learned counsel for the appellant has submitted that while recording statement under Section 164 of the Cr.P.C., Satpal husband of the Criminal Appeal No.S. 611 SB of 2009 8 prosecutrix was the interpreter whereas in the Court Rajbala sister-in-law of the prosecutrix appeared as interpreter. So, the prosecution story is doubtful.
19. I have considered the said submission and have gone through the records of the case.
20. It was only at the objection of defence counsel that Satpal has not acted as interpreter in the Court. The case was adjourned and thereafter Rajabala sister-in-law of the prosecutrix acted as an interpreter.
21. The other ground taken by the defence counsel for discarding the testimony of prosecutrix is that oath has not been administered on Rajbala interpreter. However, this objection is required to be overruled in view of authority State of Rajasthan vs. Darshan Singh @ Darshan Lal's case (supra). In the said authority, it has been held that deaf and dumb person is a competent witness. The omission of administration of oath or affirmation does not invalidate any evidence. It has been further observed that administer oath or statement may be recorded on affirmation of the witness. However, the omission of administration of oath or affirmation does not invalidate any evidence.
22. In the present case, oath has been administered to the prosecutrix by the interpreter as is clear from the testimony of the prosecutrix.
23. The other ground taken by learned counsel for the appellants for discarding the testimony of the prosecutrix is that sister-in-law of the prosecutrix has acted as interpreter and it is unsafe to rely upon the testimony given by the interpreter in view of authority State of Rajasthan Criminal Appeal No.S. 611 SB of 2009 9 vs. Darshan Singh @ Darshan Lal's case (supra).
24. I have carefully considered the said ruling.
25. In authority State of Rajasthan vs. Darshan Singh @ Darshan Lal's case (supra), the deaf and dumb person was a witness and the signs given by the said witness were interpreted by the relative witness. In those circumstances, the Hon'ble Apex Court reached to the conclusion that under those circumstances, it is unsafe to rely upon the testimony of the witness who has appeared through interpreter. However, in the present case, the prosecutrix is not a simple witness but the victim in the present case. The testimony of the prosecutrix has been recorded by the Court by giving the details of the sign given by the prosecutrix.
26. In the present case, statement under Section 164 of the Cr.P.C. was recorded by the Judicial Magistrate on the interpretation made by Satpal interpreter. No doubt, the statement made by the witness under Section 164 of the Cr. P.C. is not a substantial evidence but the Court can take into account that in her statement under Section 164 of the Cr.P.C., the prosecutrix has supported the case of the prosecution. The trial court recorded the statement of the prosecutrix through interpreter and the trial Court has given details of each sign/gesture made by her. For example, the oath was administered to the prosecutrix, the interpreter has folded her hand whereupon the witness has also folded her hand where upon the interpreter has stated that the witness has taken oath of speaking truth. The next question put to this witness was regarding age. Upon this interpreter signal with her both hands and then lifted her right hand in inquiry position Criminal Appeal No.S. 611 SB of 2009 10 whereupon the witness lifted her both hands indicating five fingers three times and then raising one finger of one hand only, upon which interpreter stated that witness has given her age as 31 years. So, the sign given by the prosecutrix makes the things clear regarding her age. The other question regarding children and education of the children etc. has been answered by the prosecutrix in a sign language which makes the things understandable to a commoner. A question was put to give the total number of assailants. This question was put by interpreter making gesture with her right hand upon which the witness raised five fingers of one hand and then made a circle with index finger and thumb inserted in finger of other hand in that hole, to which interpreter replied that witness has stated that five persons had committed sexual intercourse with her. A question was put to the prosecutrix whether all the assailants are present in the Court, on the inquiry gesture of the interpreter, the prosecutrix raised her four fingers and then raised one finger and making the signs with her fingers of her right hand by closing the fist and opening and closing the same to which interpreter stated that four persons are present in the court while one is not present.
27. Another question was put to the witness how many times wrong act was committed with you and individual by each assailants. The interpreter made inquiry sign to which the prosecutrix gesture by raising three fingers first then two fingers and one raising her index finger three times and the same has been interpreted that two assailants committed wrong act one each. The very important question which was put to the prosecutrix was that can she recognize those persons, if they are present or Criminal Appeal No.S. 611 SB of 2009 11 not ? To answer that question, interpreter moved her hand upon her face and then made inquiry upon which the witness the prosecutrix has put her hand against her face and interpreter has replied that she can recognize the assailants as the witness has put her right hand before her face indicating a mirror in front of her. Thereafter, the prosecutrix had pointed out towards the accused individually who were present in the Court with the police officials. So, in this manner, the prosecutrix has recognized all the four accused in the present as assailants.
28. In authority State of Rajasthan vs. Darshan Singh @ Darshan Lal's case (supra), there was nothing on the file that the Court has recorded the signs, which were made by the witness and how these signs made in the statement of that witness can be believed in a case under Section 302 of the IPC. However, in the present case, the trial Court has not only relied upon the statement of interpreter but upon the gestures/signs made by the prosecutrix while relying the statement of the prosecutrix. So, in these circumstances, authority State of Rajasthan vs. Darshan Singh @ Darshan Lal's case (supra), is distinguishable to the facts of the present case.
29. Keeping in view the above discussion, I have no hesitation in holding that the signs made by the prosecutrix indict the present appellants as the persons who had committed rape upon the prosecutrix. The report of the Forensic Science Laboratory, Madhuban (Haryana) further lends support to the prosecution version. Human semen was detected on the vaginal swab, underwear, petticoat etc. sent for analysis. Dr. Sudha Garg (PW-4) Criminal Appeal No.S. 611 SB of 2009 12 after seeing the report of Forensic Science Laboratory has given opinion that prosecutrix was subjected to sexual intercourse. Moreover, no solid reason for falsely implicating the appellants in such a heinous crime has been given. Prosecutrix is mother of three children and was deaf and dumb and she was subjected to rape at the hands of appellants. The trial Court has convicted the appellants only under Section 376 of the IPC and not under Section 376 (2)(g) of the IPC. However, there is no appeal preferred by the State and as such no ground for interference regarding the quantum of sentence in a gang rape is made out.
30. Consequently, the appeal is without any merit and the same stands dismissed.
31. A copy of this judgment be sent to the trial Court for strict compliance.
December 07 , 2012 ( K. C. PURI ) sv JUDGE