Karnataka High Court
Sri Prasad B @ Kunhzi vs State Ofkarnataka on 30 June, 2025
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NC: 2025:KHC:22881
CRL.A No. 1216 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 1216 OF 2018 (C)
BETWEEN:
SRI. PRASAD B @ KUNHZI
S/O BALAKRISHNA,
AGED ABOUT 23 YEARS,
RESIDENT OF ANDAGOVE VILLAGE,
SUNTICOPPA,
KODAGU-573 115.
...APPELLANT
(BY SRI. B. LETHIF, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY
KUSHALNAGAR CIRCLE P.S.-573 201,
Digitally KODAGU DISTRICT.
signed by ...RESPONDENT
SWAPNA V
Location:
(BY SMT. RASHMI JADHAV, ADDL. SPP)
High Court of
Karnataka THIS CRL.A. IS FILED U/S.374(2) CR.P.C., PRAYING TO
(A) CALL FOR THE RECORDS IN SPL. CASE NO.62 OF 2017 ON
THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, KODAGU-MADIKERI; (B) SET-ASIDE THE JUDGMENT
OF CONVICTION AND SENTENCE DATED 05.04.2018 PASSED
IN S. CASE NO.62/2017 ON THE FILE OF THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, KODAGU-MADIKERI AND
ACQUIT THE APPELLANT OF THE ALLEGED CHARGE FOR THE
OFFENCE UNDER SECTION 376(2)(j) AND 376(2)(L) OF INDIAN
PENAL CODE BY ALLOWING THE APPEAL AS PRAYED.
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NC: 2025:KHC:22881
CRL.A No. 1216 of 2018
HC-KAR
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The appellant being the accused in SC No.62/2017 on the file of the learned III Additional District and Sessions Judge, Kodagu, Madikeri, is impugning the judgment of conviction and order of sentence dated 05.04.2018 convicting him for the offences punishable under Sections 376(2)(j) and 376(2)(l) of IPC, sentencing to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.7,500/- each for the offence punishable under Sections 376(2)(j) and 376(2)(l) of IPC, with default sentences.
2. Brief facts of the case as made out by the prosecution is that, during July 2016, the accused had forcible sexual intercourse with PW3, who was deaf and dumb and impregnented her. Later, she gave birth to the male child on 18.04.2017 at Madikeri District Hospital. Therefore, it is stated that the accused has committed the offences punishable under Sections 376(2)(j) and 376(2)(l) of IPC. -3-
NC: 2025:KHC:22881 CRL.A No. 1216 of 2018 HC-KAR
3. Learned Magistrate took cognizance of the offences and committed the matter to the Sessions Court. The accused appeared before the Trial Court and pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 9 and got marked Exs.P1 to 16 in support of its contention. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and accordingly, convicted and sentenced him as stated above. Being aggrieved by the same, the accused is before this Court.
4. Heard Sri B. Lethif, learned counsel for the appellant and Smt. Rashmi Jadhav, learned Additional SPP for the respondent/State. Perused the materials including the Trial Court records.
5. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the appellant has made out any grounds to interfere with the impugned judgment of -4- NC: 2025:KHC:22881 CRL.A No. 1216 of 2018 HC-KAR conviction and order of sentence passed by the Trial Court to acquit him for the charges leveled against him?"
My answer to the above point is in the 'Affirmative' for the following:
REASONS
6. It is the contention of the prosecution that PW3 is the victim, aged 30 years and she is deaf and dumb. The accused who is the relative of PW1 - the mother of victim, committed forcible sexual assault on PW3 in her house, which resulted in giving birth to the male child on 18.04.2017. The first information came to be filed by the mother of the victim on 06.04.2017 and FIR came to be registered. Investigation was undertaken and the charge sheet came to be filed.
7. PW1 is the informant, the mother of the victim and paternal aunt of the accused. First information as per Ex.P1 discloses that the victim delivered the male child on 18.04.2017 just 12 days after filing of the complaint - Ex.P1. The contention of the prosecution is that, PW1 is the eye witness, who had seen the accused committing the offences. However, -5- NC: 2025:KHC:22881 CRL.A No. 1216 of 2018 HC-KAR she has just scolded him and sent him out of the house, but she had not chosen to file the complaint immediately. The incident took place in the month of July, 2016 and the first information is filed belatedly i.e., after about eight months. She has not explained as to why there was such an inordinate delay in filing the complaint. It was the duty of Investigating Officer to explain what lead to the delay in lodging the first information. He has not taken any pain for finding out the reasons for the delay in filing the first information. It is pertinent to note that Column 3(i) of the FIR - Ex.P12 relates to the reason for delay in lodging the first information. No reasons have been assigned to explain the delay either in the first information or in the FIR.
8. PW1 being the informant and the mother of the victim girl, who is said to be the eye witness to the incident has not supported the case of the prosecution. She has turned completely hostile. Nothing has been elicited from her to disbelieve her version. PW2 is the translator, who assisted to translate the version of PW3, who is deaf and dumb. He states that PW3-victim communicated that there was forcible sexual assault on her by the accused. But, strangely, the victim is -6- NC: 2025:KHC:22881 CRL.A No. 1216 of 2018 HC-KAR aged 30 years. Even after delivering the child, she has not chosen to support the case of the prosecution and she has also turned hostile. Of course, during cross-examination by the learned Prosecutor, a stray sentence was elicited from her that the accused has committed forcible sexual assault. During cross-examination by the learned counsel for the accused, she has admitted that such offence was committed by the accused. Simply on the basis of stray sentence elicited by PW3 that the accused has committed forcible sexual assault, it cannot lead to conviction of the accused. Some corroboration is necessary in that regard.
9. PW4 is the Doctor, who assisted PW3 in delivery of her child and produced the case sheet as per Ex.P3. PW5 is the Doctor, who collected the blood sample of the victim, child and the accused. PW6 is the Police Constable, who arrested the accused. PW7 is the Investigating Officer, who received the first information and registered the FIR. PW8 is the Circle Inspector, who carried out further investigation and filed the final report.
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10. PW9 is the material witness - the Scientific Officer, DNA Centre, FSL, Bengaluru, who spoke about the DNA report- Ex.P16, according to which, the accused is the biological father of the child delivered by the victim. On the basis of evidence of PW9, the contention of the prosecution is that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt.
11. Learned counsel for the appellant-accused placed reliance on the decision of Gujarat High Court in Premjibhai Bachubhai Khasiya Vs State of Gujarat & Another1, to contend that the DNA report cannot be the sole basis to convict the accused. He also placed reliance on the decision of the Hon'ble Apex Court in Karandeep Sharma @ Razia @ Raju Vs State of Uttarkhand2, wherein, the same position of law has been re-iterated.
12. The position of law is that even though the DNA report is positive, it cannot be the conclusive evidence and cannot be the sole basis to record conviction. It could be taken into consideration as corroborative piece of evidence. 1 2009 SCC Online Guj 12076 2 2025 SCC Online SC 773 -8- NC: 2025:KHC:22881 CRL.A No. 1216 of 2018 HC-KAR Unfortunately, neither PW1 nor PW3 have supported the case of the prosecution.
13. It is the contention of learned counsel for the appellant that, at most, it could be a consensual act on the part of the accused and the victim. Of course, no such defence was taken up before the Trial Court. However, the burden lies on the prosecution to prove that the act in question was committed forcibly by the accused. Except the stray sentence elicited by PW3, her evidence is inconsistent, which changed at each stage. Hence, it is not safe to rely on such evidence as the basis to convict the accused. Under such circumstances, the benefit of doubt will have to be given to the accused and he is entitled to be acquitted.
14. PW3 - the victim girl is admittedly deaf and dumb. Section 118 of Indian Evidence Act, does not treat such a person as a person incompetent to testify, or in other words, even if a person is deaf and dumb, he is competent to testify, unless Court consider that such person is prevented from understanding the questions put to or from giving rational answers to the questions.
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15. In M P Sharma and Others Vs Satish Chandra, District Magistrate, Delhi and others3, the Hon'ble Apex Court has 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. Section 119 of the Indian Evidence Act deals with the witness unable to communicate verbally. This Section provides that 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 and the evidence so given shall be deemed to be oral evidence. The proviso to Section 119 guides the Court if the witness is unable to communicate verbally, to take the assistance of interpreter or special educator in recording the statement and it mandates such statement shall be videographed.
16. Before enacting Section 119 of Evidence Act, the deaf and dumb persons were considered in law as idiots. Such a view was subsequently changed in view of the advent in modern science and when it is revealed that such persons are 3 AIR 1954 SC 300
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NC: 2025:KHC:22881 CRL.A No. 1216 of 2018 HC-KAR generally more intelligent than a normal person, it has resulted in enacting Section 119 of Evidence Act.
17. The Hon'ble Apex Court in State of Rajasthan Vs Darshan Singh @ Darshan Lal4, considered all these aspects of the matter and also highlighted that the silent movies are understood widely because they are able to communicate ideas to the people through novel signs and gestures emphasizing body language and facial expressions enabled the audience to comprehend the intended message. In paragraph 21, the Hon'ble Apex Court held as under:
"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 4 AIR 2012 SC 1973
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NC: 2025:KHC:22881 CRL.A No. 1216 of 2018 HC-KAR have any interest in the case and he should be administered oath."
18. Thus, the procedure to be followed while recording the evidence of a person who is both deaf and dumb is well settled. In the present case, PW3 - the victim is aged 30 years. Her evidence was recorded with the assistance of PW2 - the official translator for such deaf and dumb. The witness was treated hostile by the learned Prosecutor and she was cross examined. During such cross examination, the witness admitted the suggestion that the accused is her younger brother and that the child was born to her because of the accused. But she denied all other suggestions during cross examination. During cross examination by the learned counsel for the accused, witness states that she has not studied the sign language by going to any school and she cannot understand what is being told to her by PW2 with sign language. Admittedly, the Trial Court has not verified with the witness as to whether she can read and write or whether she can understand the signs made by PW2. However, PW3 never objected to the signs made by PW2 and she appears to have
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NC: 2025:KHC:22881 CRL.A No. 1216 of 2018 HC-KAR replied to the signs made by PW2 and the same appears to have been recorded by the Trial Court.
19. From the materials on record, it cannot be said that PW3 even though a deaf and dumb lacks necessary intelligence to understand the questions put to her and to give rational answers. Even such defence was not taken by the accused before the Trial Court or before this Court. Therefore, the competency of PW3 as a witness is not in dispute. Similarly, competency of PW3 to give or to deny consent is also not in dispute.
20. The Trial Court while appreciating the evidence of PW3 held in paragraph 35 as under:
"35. PW3, the victim, is both deaf and dumb, Thus, she is unable to communicate her consent for having sexual intercourse, incapable of giving her consent and suffering from physical disability. Hence, the question of consent having been obtained by the accused from PW3 to have sexual intercourse with her is immaterial."
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21. I do not find any basis or justification for this observation made by the Trial Court. It was never the contention of the prosecution that PW3 being deaf and dumb was unable to give consent. The very fact that she explained the incident to her mother for filing the first information, she gave her statement with the signs and her evidence was recorded before the Trial Court with the help of PW2 - the official translator go to show that she was capable of understanding the questions put to her and to give rational answers. Her capacity to understand things was quite normal except the fact that she was hard of hearing and expressing in words. Under such circumstances, it cannot be held that she was incapable of giving consent.
22. When PW1 - the mother of PW3 is the eye witness to the incident and even after witnessing the incident do not register the first information, PW3 the victim was aged 30 years and the first information came to be lodged belatedly i.e., just about 12 days before delivery of the child - the fact that PWs.1 and 3 have turned hostile and have not supported the case of the prosecution lead to a probable conclusion that the act complained of may be with the consent of PW3. When such
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NC: 2025:KHC:22881 CRL.A No. 1216 of 2018 HC-KAR an interpretation is possible on facts of the case, I am of the opinion that the benefit of doubt could be extended to the accused to acquit him.
23. The Trial Court proceeded to convict the accused on the misconception that PW3 even though aged 30 years, was incapable of giving consent as she was deaf and dumb and that Ex.P16 - the DNA report establishes that the accused is the biological father of the male child born to PW3. When the opinion formed by the Trial Court regarding incapacity of PW3 to give consent is unsustainable, the only ground for convicting the accused is DNA report.
24. The DNA report is only the opinion expressed by an expert. It is advisory in nature. The Court is not bound by the evidence of an expert. No doubt, it is a valuable tool to guide the Court in arriving at a conclusion. At the most, such reports could be best corroborative piece of evidence to buttress the findings of the Court regarding guilt of the accused, but it cannot be a conclusive proof and the sole basis to prove the guilt of the accused for the purpose of convicting him.
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25. In view of the discussions held above, I am of the opinion that the accused is entitled for the benefit of doubt and he is to be acquitted. The impugned judgment of conviction and order of sentence passed by the Trial Court is liable to be set aside. Accordingly, I answer the above point in the affirmative and proceed to pass the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment of conviction and order of sentence dated 05.04.2018 passed in S.C.No.62/2017 by III Additional District and Sessions Judge, Kodagu, Madikeri, for the offences punishable under Sections 376(2)(j) and 376(2)(l) of IPC is hereby set aside.
(iii) Consequently, the accused is acquitted for the offences punishable under Sections 376(2)(j) and 376(2(l) of IPC.
(iv) Bail bond of the accused and that of his sureties shall stand cancelled.
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(v) Fine amount, if any, deposited by the accused is ordered to be refunded to them after appeal period is over.
Registry to send back the Trial Court records along with copy of this judgment for information and for needful action.
Sd/-
(M G UMA) JUDGE TL List No.: 1 Sl No.: 9