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2. The prosecution case in brief is that on February 09, 2013 at about 7.28 PM, PW12 HC Laxman Singh was handed-over DD No.18, Ex.PW- 12/A informing that a boy was kidnapping a girl and the said boy was apprehended by the caller at K Block complex. On reaching the spot, he found Chander Singh apprehended by public. Raj Kumar who made the call to the PCR was found to be the maternal uncle of the prosecutrix, who was a minor, deaf and dumb girl aged 12 years. Statement of the mother of the prosecutrix was recorded wherein she stated that at around 7.00 PM her daughter aged 12 years who was deaf and dumb had gone to throw garbage in the dustbin. She returned back in a perplexed and perturbed condition. When she and her brother asked her, she explained by sign language that near the dustbin one man pressed her mouth, her breast and the lower abdomen. The prosecutrix ran towards her house after freeing herself from his clutches. She and her brother along with the prosecutrix went to the dustbin where her daughter pointed out towards a boy whose name was revealed as Chander Singh, S/o of Sukhbir Singh who was apprehended by her brother. Her brother made the PCR call. Chander Singh was apprehended at the spot and both the prosecutrix and Chander Singh were got medically examined.
6. This Court need not note the testimony of any other witness except the prosecutrix PW-2 for the reason no other person witnessed the incident and her mother PW-4 whose evidence would be relevant and admissible under Section 6 and 8 of the Evidence Act. Statement of the prosecutrix in the Court was recorded with the assistance of PW-3 Rita Kanojia, Assistant Teacher/ Support Person working at Nursery Primary School for Deaf, Sector-4, Rohini, an institution run by the Delhi Government, Social Welfare Department. The learned Trial Court after being satisfied noted the relevant portion of the testimony of the prosecutrix as under:
8. The twin arguments raised by learned counsel for the appellant are that since the prosecutrix could not be cross-examined her testimony cannot be read in evidence and even if the offence is proved against the appellant, the same would fall under Section 7 punishable under Section 8 of POCSO Act and not under Section 9(k) punishable under Section 10 of the POCSO Act.
9. As noted above the prosecutrix is a deaf and dumb girl and obviously would not be able to face grilling cross-examination which learned counsel for the appellant attempted to do. However even in cross-examination on the relevant point as to where the incident took place she was able to explain by drawing. The purpose of cross-examination is to test the veracity of the version of the complainant which in this case was explained by gestures by the prosecutrix to her mother on whose statement the FIR was registered and who also deposed as PW-4 in the witness box. Nothing could be elicited from the mother of the prosecutrix in cross-examination. The prosecutrix had stood by her complaint even in her deposition before the Court and her testimony cannot be brushed aside merely because she has not been able to answer irrelevant and unnecessary questions put to her in the cross- examination.
"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.