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4. Case of the prosecution, in brief, is that victim is a deaf and mute girl belonging to Scheduled Tribe community. On 26.02.2020, her mother Chameli Bai (PW-2) submitted a written complaint (Ex.P-6) at Police Station Gariyaband stating that the victim is her eldest daughter, deaf and mute since childhood, educated up to Class VIII and capable of understanding signs. On the date of incident i.e. 26.02.2020, she and her husband had gone to the agricultural field in the morning at about 7:00 a.m. At about 10:00 a.m., her son Satish (PW-3) came to the field and informed that the victim had gone to the toilet situated in the badi near their house and had not returned for some time. When he went near the toilet and knocked the door, he heard sounds from inside. Thereafter, through an opening in the rear wall, he saw accused- Gangaram Sinha and the victim inside the toilet without lower garments. Shortly thereafter, accused opened the door and fled away. It was further alleged that after returning home, when the victim was asked through signs, she disclosed that while she had gone to the toilet, accused followed her, pushed her inside, closed the door, forcibly removed her clothes and committed sexual intercourse against her will. It was also stated that accused used to come near their house for mason work and was known to the family. On the basis of written complaint, FIR (Ex.P-7) was registered against accused- Gangaram under Section 376 of IPC.

9. Criminal Appeal No.607 of 2024:- Learned counsel for the appellant/accused submits that the conviction and sentence of appellant under Section 376 of IPC is unsustainable both in law and on facts. It is contended that the testimony of the victim, being a deaf and mute witness, was recorded through an interpreter and, therefore, required strict scrutiny and reliable corroboration. According to learned counsel, the possibility of imperfect interpretation cannot be completely ruled out. It is further contended that the medical evidence does not support the allegation of forcible sexual intercourse, as no external or genital injury and no fresh signs of violence were found on the body of the victim, and the doctor has not given any definite opinion regarding recent forcible intercourse. It is also submitted that PW-3 brother of the victim, did not witness the actual act of penetration and merely saw the accused and the victim inside the toilet, which, by itself, is insufficient to establish the offence of rape. It is further argued that the FSL report (Ex.P-23) only indicates the presence of semen and does not establish absence of consent, and thus the possibility of consensual intimacy cannot be ruled out. On these grounds, it is prayed that the impugned judgment of conviction be set aside and the appellant/accused be acquitted of the charge levelled against him.

14. In the present case, the first and principal witness is the victim. Since she is admittedly deaf and mute, her evidence was recorded with assistance of interpreter Sheila Yadav (PW-7). Before appreciating such evidence, it is necessary to notice that Section 119 of the Indian Evidence Act, 1872 expressly recognizes testimony of a witness unable to speak through writing or signs and such evidence is substantive oral evidence if properly interpreted in open Court. PW-7 Sheila Yadav, Interpreter, has stated that she is trained in dealing with speech and hearing impaired persons, having completed D.Ed. in special education, and has worked as a teacher and thereafter as Principal of Vidyanidhi Multi Disability Special Residential School, Kokdi, District Gariyaband. She was called by the police to interpret the signs of the victim. She examined the victim and found that she was capable of understanding signs and expressing herself through gestures.

16. It is well settled that merely because a witness is deaf and dumb, her testimony cannot be discarded. Evidence given through gestures or signs with the assistance of a competent interpreter is admissible and can form the basis of conviction if it inspires confidence.

17. In this regard, in the matter of State of Rajasthan v. Darshan Singh, (2012) 5 SCC 789 , it has been held as under:

"26. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs.