LawforAll

advocatemmmohan

My photo
since 1985 practicing as advocate in both civil & criminal laws

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - SHARE THE KNOWLEDGE

Tuesday, May 22, 2012

How to record the evidence of deaf and dumb? = 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.


                         ?                                         REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.870 of 2007






    State of Rajasthan                                   …..Appellant


                                   Versus


    Darshan Singh @ Darshan Lal                      ….. Respondents










                                  JUDGMENT


    Dr. B.S. CHAUHAN, J.




    l.           This  Criminal  Appeal  has  been  preferred  against  the
    judgment and order dated 29.5.2006 in D.B. Criminal Appeal  No.  96  of
    2003 passed by the High Court of Judicature for  Rajasthan  at  Jodhpur
    setting aside the judgment and order  dated  15.1.2003  passed  by  the
    Additional Sessions Judge (Fast  Track)  Hanumangarh,   convicting  the
    respondent herein of the  offences  punishable  under  Section  302  of
    Indian Penal Code, 1860 (hereinafter referred as  `IPC’)  and  imposing
    the punishment to suffer rigorous imprisonment for life and  to  pay  a
    fine of Rs. 500/- in  default  to  further  undergo  one  month  simple
    imprisonment.


    2.      Facts and circumstances giving rise to this appeal are that:
    A.      Buta Singh (PW.15) lodged an oral report on  4.5.2001  at  1.00
    a.m.  at  P.S.  Hanumangarh,  District  Hanumangarh  stating  that   on
    intervening night between 3/4.5.2001 at about 12.15 a.m., Jaswant Singh
    (PW.1) received a telephone call from Dr. Amarjeet Singh Chawla  (PW.4)
    to  the  effect  that  Jaswant  Singh’s  daughter  was  perturbed  and,
    therefore, he must immediately reach the house of his  son-in-law  Kaku
    Singh.  Buta Singh (PW.15),  informant,   also  proceeded  towards  the
    house of Kaku Singh deceased, alongwith his son  Gurmail  Singh.   They
    met Jaswant Singh (PW.1) and Geeta (PW.16), his daughter in  the  lane.
    The main door of the house was closed but the window of  the  door  was
    open.  They went inside through the window and found two cots lying  on
    some distance where  fresh blood was lying covered with sand. They also
    found the dead body of Kaku Singh in the pool of  blood  covered  by  a
    quilt in the room.


    B.      On being asked, Geeta (PW.16) (deaf and  dumb),  wife  of  Kaku
    Singh deceased communicated by gestures that Darshan Singh, respondent-
    accused, had stayed with them in the night.  He had given a  pill  with
    water to Kaku Singh and thus he became unconscious. Two  more  persons,
    accomplice of Darshan Singh   came  from  outside  and  all  the  three
    persons inflicted injuries on Kaku  Singh  with  sharp  edged  weapons.
    Geeta (PW.16) got scared and ran outside.  The  motive  for  committing
    the offence had been  that  one  Chhindri  Bhatni  was  having  illicit
    relationship with Kaku Singh, deceased, and about 8-10  months prior to
    the date of incident Kaku Singh caused burn injuries to  Geeta  (PW.16)
    at the  instigation  of  Chhindri  Bhatni.   However,  because  of  the
    intervention of the community people, Kaku Singh, deceased, severed his
    relationship with Chhindri Bhatni, who became annoyed and had sent  her
    brother Darshan Singh alongwith other persons who killed Kaku Singh.


    C.      On the basis of the  said  report  FIR  No.  262  of  2001  was
    registered under Sections 449,  302,  201  and  120B  IPC  against  the
    respondent at P.S Hanumangarh and investigation ensued.  The respondent
    was arrested and during interrogation, he made a  voluntary  disclosure
    statement on the basis of which the I.O. got recovered a blood  stained
    Kulhari  and  clothes  the  respondent  was  wearing  at  the  time  of
    commission of offence.


    D.       After  completion  of  the  investigation,  the  police  filed
    chargesheet against the respondent under Sections 302 and 201  IPC  and
    the trial commenced.    During the course  of  trial,  the  prosecution
    examined as many as 23 witnesses  and  tendered  several  documents  in
    evidence.  However,  Geeta (PW.16) was  the  sole  eye-witness  of  the
    occurrence, being   deaf and dumb, her statement was recorded  in  sign
    language with the help  of  her  father  Jaswant  Singh  (PW.1)  as  an
    interpreter.  After completion of all the formalities and conclusion of
    the trial, the trial court placed reliance upon the evidence  of  Geeta
    (PW.16) and recovery etc., and convicted the respondent  vide  judgment
    and order dated 15.1.2003 and imposed the punishment as mentioned here-
    in-above.


    E.      Aggrieved, the respondent preferred Criminal Appeal No.  96  of
    2003 before the High  Court  which  has  been  allowed  vide   impugned
    judgment and order dated 29.5.2006.


            Hence, this appeal.


    3.       Dr.  Manish  Singhvi,  learned  Additional  Advocate  General,
    appearing for the appellant-State, has submitted that  the  prosecution
    case was fully supported by Geeta (PW.16),  Jaswant  Singh  (PW.1)  and
    Buta Singh (PW.15)  which  stood  fully  corroborated  by  the  medical
    evidence. Dr. Rajendra Gupta (PW.17) proved the post-mortem report  and
    supported the case of  the  prosecution.   Therefore,  the  High  Court
    committed an error by reversing the well-reasoned judgment of the trial
    court.  Thus, the appeal deserves to be allowed.


    4.      Per contra, learned counsel appearing for  the  respondent  has
    opposed the appeal contending that  the  deposition  of  Geeta  (PW.16)
    cannot be relied upon for the reason that she is deaf and dumb and  her
    statement  has  not  been  recorded  as  per  the  requirement  of  the
    provisions of Section 119 of the Evidence Act, 1872.  The deposition of
    Jaswant Singh (PW.1) cannot be relied upon as he was having an  eye  on
    the property of Kaku Singh, deceased.  The High  Court  has  considered
    the entire evidence and re-appreciated the same in correct perspective.
     There are fixed parameters for interfering with the order of acquittal
    which we do not fit  in  the  facts  and  circumstances  of  the  case,
    therefore, the appeal is liable to be dismissed.


    5.      We have considered the rival submissions made  by  the  learned
    counsel for the parties and perused the records.


            Undoubtedly, Kaku Singh, deceased, died a homicidal death.   Dr.
    Rajendra Gupta (PW.17), who conducted the  post-mortem  examination  on
    the dead body of Kaku Singh, found the following injuries:


       i) Incised wound 4-1/2” x 1” bone deep fracture on the right  lateral
          side of face mandible region.
      ii) Incised wound 5-1/2” x 2” bone deep  all  structure  of  neck  cut
          wound.
               He opined that the cause of death was injury  to  vessel  of
    neck, trachea due to injury no. 2 which was sufficient in the  ordinary
    course of nature to cause death.


    6.      The only question that remains for consideration is whether the
    respondent could be held responsible for  causing  the  death  of  Kaku
    Singh, deceased.


            Geeta (PW.16) is the star witness of the prosecution. According
    to her at 6.30 p.m. on the day of incident, respondent-accused came  to
    her house. The accused and her husband consumed liquor  together.   The
    respondent-accused had mixed a tablet in the glass  of  water  and  the
    same was taken by her husband Kaku Singh. She served the food  to  both
    of them and subsequently, all the three persons slept on  cots  in  the
    same room. During the night two persons  also  joined  the  respondent-
    accused. It was at 11.30 p.m., accused Darshan Singh had  taken  out  a
    kulhari from his bag and gave blows  on  the  neck  and  cheek  of  her
    husband.  She raised a cry but accused caught her by the hair and asked
    to keep quiet otherwise she would also be killed.  The  dead  body  was
    taken by the accused alongwith accompanying persons and was  put  in  a
    room and locked the same  from outside.  In the  court,  Geeta  (PW.16)
    witness indicated that she could read and write  and  she  had  written
    telephone number of her father Jaswant Singh  (PW.1).  It  was  on  her
    request that Dr. Amarjeet Singh  Chawla  (PW.4)  informed  her  father.
    After sometime, Jaswant Singh (PW.1) came there on scooter and saw  the
    place of occurrence.


    7.      Jaswant Singh (PW.1) deposed  that  he  reached  the  place  of
    occurrence after receiving the telephone call from Dr.  Amarjeet  Singh
    Chawla (PW.4) and after coming to know about the murder of Kaku  Singh,
    he informed  Buta  Singh  (PW.15),  brother  of  deceased  Kaku  Singh.
    Jaswant Singh (PW.1) reached the clinic of Dr.  Amarjeet  Singh  Chawla
    (PW.4), in the way, he met Buta  Singh  (PW.15)  and  his  son  Gurmail
    Singh.  They came to the house of Kaku Singh, deceased  and  found  the
    blood covered with sand and also the dead body of Kaku Singh lying on a
    cot in a room covered with quilt.  Geeta (PW.16)  informed him  through
    gestures that respondent-accused Darshan  Singh  had  killed  him  with
    kulhari while Kaku Singh was sleeping.  She  also  told  Jaswant  Singh
    (PW.1) about the illicit relationship  of  Chhindri  Bhatni  with  Kaku
    Singh, deceased and because of the intervention of  community  persons,
    Kaku Singh had severed relationship with Chhindri Bhatni.   The  latter
    got annoyed and got Kaku  Singh  killed  through  her  brother  Darshan
    Singh, respondent-accused.


    8.      Buta Singh (PW.15), brother of deceased  Kaku  Singh,  narrated
    the incident as had been stated by Jaswant Singh (PW.1).


    9.      Dr. Rajendra Gupta, (PW.17), who conducted the  post-mortem  on
    the said dead body supported the case of the prosecution to the  extent
    that Kaku Singh, deceased, died of homicidal death.


    10.     Gurtej Singh (PW.2) the  recovery  witness  deposed  about  the
    inquest report of the dead body and taking in custody of empty strip of
    tablet, blood stained soil and simple soil and  moulds  etc.  from  the
    spot.


    11.     Hari Singh (PW.7), the recovery witness of kulhari (Ext.  P-12)
    at the instance  of  respondent-accused  Darshan  Singh  supported  the
    prosecution case to the extent of the said recovery.


    12.     Ramjilal (PW.23), Investigating Officer, gave full  details  of
    lodging an FIR at midnight and explained all  steps  taken  during  the
    investigation,  recoveries  referred  to  here-in-above,  recording  of
    statements  of  witnesses  under  Section  161  Cr.P.C.,  sending   the
    recovered  material  for  FSL  report  and  arrest  of  Darshan  Singh,
    respondent-accused etc.


    13.     Dr. Amarjeet Singh Chawla (PW.4) deposed that Geeta (PW.16) had
    asked him to give a telephone call to her father and he had accordingly
    informed her father.  After sometime, her father Jaswant  Singh  (PW.1)
    had arrived on scooter.  In the cross-examination,  he  explained  that
    Geeta (PW.16) was dumb and deaf, however, could read and write and  she
    had written the telephone number of her father as 55172 and,  thus,  he
    could contact her father.


    14.     The respondent-accused in his  examination  under  Section  313
    Cr.P.C., denied all allegations.  The trial court found the evidence on
    record trustworthy and  in  view  thereof,  convicted  the  respondent-
    accused and sentenced him as referred to hereinabove.


   15. The High Court re-appreciated the entire evidence and  came  to  the
       following conclusions:
    (I)     There were major contradictions in ocular evidence and  medical
    evidence.  As per the statement of Geeta (PW.16), Kaku Singh,  deceased
    and Darshan  Singh,  respondent-accused  had  consumed  liquor  in  the
    evening but this was  not  corroborated  from  medical  evidence.   Dr.
    Rajendra Gupta (PW.17) has admitted that there was nothing to show that
    deceased Kaku Singh had consumed liquor. Her version of giving  a  pill
    for intoxication of deceased could not be proved by  medical  evidence.
    The viscera was sent to Forensic Science Laboratory but the report  did
    not show that any sort of poison had been administered to the deceased.


    (II)    The version of Geeta (PW.16) did not appear to  be  trustworthy
    as she deposed that Darshan Singh accused, Kaku Singh  deceased and the
    witness had slept in the same room.  It was natural that a husband  and
    wife would not allow a stranger to sleep with them,   even  if  Darshan
    Singh,  accused,  was  known  to  them.   In  view  of  the  fact  that
    relationship between Geeta and Chhindri Bhatni had never been  cordial,
    it could not be believed that Geeta (PW.16) would permit the brother of
    Chhindri Bhatni to sleep with them.
    (III)   Geeta  (PW.16)  had  admitted  in  her  cross-examination  that
    Chhindri Bhatni had 10 brothers and none of them had ever  visited  her
    house.  Chhindri Bhatni was living in the same house with deceased  and
    Geeta.  She further admitted that she had  never  seen  Darshan  Singh,
    respondent-accused, prior to the date of incident.  Even, she could not
    disclose the features of the accused to the police.  In  such  a  fact-
    situation, the question of sleeping all  of  them  together  could  not
    arise.
    (IV)    There could be no motive for Darshan Singh, respondent-accused,
    to kill Kaku Singh, deceased for the reason that even as per deposition
    of Geeta (PW.16), Kaku Singh had severed the relationship with Chhindri
    Bhatni long ago.
    (V)     The name of Darshan Singh,  respondent-accused,  did  not  find
    place in the FIR.  The accused persons had been  mentioned  therein  as
    Chhindri Bhatni and her brother.
    (VI)    So far as the recovery of kulhari  (Ext.  P-12)  is  concerned,
    even if believed, did not lead  to  any  interference  for  the  simple
    reason that FSL report (Ext. P-64) revealed that  there  was  no  human
    blood found on kulhari.  Therefore, the evidence of recovery of kulhari
    could not be used as incriminating circumstance against the accused.
    (VII)   The evidence on record revealed that Geeta (PW.16) and  Jaswant
    Singh (PW.1) were apprehending that Kaku Singh deceased would  alienate
    his irrigated  land  to  Chhindri  Bhatni  and,  therefore,  it  became
    doubtful whether  Darshan  Singh,  respondent/accused  could  have  any
    motive to kill Kaku Singh, deceased.
    (VIII)  The evidence of Geeta (PW.16) was  recorded  in  sign  language
    with the help of her father Jaswant Singh (PW.1).  Admittedly,  neither
    she  nor  her  father  while  acting  as  her  interpreter   had   been
    administered  oath.  The  signs  have  been  recorded   alongwith   its
    interpretation.  There was  possibility  of  misinterpretation  of  the
    signs made by her, as her father could do it purposely,  the  statement
    of Geeta (PW.16) did not inspire confidence.
    (IX)    Deposition of Geeta (PW.16)  could not be relied upon as it was
    not safe for the court to embark upon the examination of deaf and  dumb
    witness, on her information without the help of an expert or  a  person
    familiar of her mode of conveying ideas to others in day to  day  life.
    Further, such a person should not  be  an  interested  person.  In  the
    instant  case,  Jaswant  Singh   (PW.1)   had   participated   in   the
    investigation and was an interested person.


    16.     We have also gone through the entire evidence and  concur  with
    the findings recorded by the High Court.
          Basic argument which has been advanced by both the parties  before
    us is on the admissibility and credibility of  sole  eye-witness  Geeta
    (PW.16).
          Admittedly, Geeta (PW.16) had  not  been  administered  oath,  nor
    Jaswant Singh (PW.1), her father who  acted  as  interpreter  when  her
    statement was recorded in the court.  In view of provisions of Sections
    4 and 5 of the Oaths Act, 1969, it is always  desirable  to  administer
    oath or statement may be recorded on affirmation of the witness.   This
    Court in Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952
    SC 54, has categorically held that the main purpose of administering of
    oath to render persons who give false evidence  liable  to  prosecution
    and further to bring  home to the witness the solemnity of the occasion
    and to impress upon him the duty of speaking the  truth,  further  such
    matters only touch credibility and not admissibility.

        However, in view of the provisions of Section 7 of the  Oaths  Act,
    1969, the omission of administration of oath or  affirmation  does  not
    invalidate any evidence.

    17.   In M.P. Sharma & Ors. v.  Satish  Chandra,  District  Magistrate,
    Delhi & Ors., AIR 1954 SC 300, this Court 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 (See Section 119 of the Evidence Act) or the like.

    18.     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  be
    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 required that  there  must
    be a record of signs and not the interpretation of signs.

    19.     In Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182, this
    Court has considered the  evidentiary  value  of  a  dying  declaration
    recorded by means of signs and nods  of  a  person  who  is  not  in  a
    position to speak for any reason and held that the same  amounts  to  a
    verbal statement and, thus,  is  relevant  and  admissible.  The  Court
    further clarified that `verbal’ statement does  not  amount  to  `oral’
    statement. In view of the provisions of Section  119  of  the  Evidence
    Act, the only requirement is that witness may give his evidence in  any
    manner in which he can make it intelligible, as by writing or by  signs
    and such evidence can be deemed to be oral evidence within the  meaning
    of Section 3 of the Evidence Act. Signs and gestures made  by  nods  or
    head are admissible and such nods and gestures are not only  admissible
    but possess evidentiary value.

    20.     Language is much more than words.  Like  all  other  languages,
    communication by way of signs has some inherent limitations,  since  it
    may be difficult to comprehend what the user is attempting  to  convey.
    But a dumb person need not be  prevented  from  being  a  credible  and
    reliable witness merely due to  his/her  physical  disability.  Such  a
    person though unable to speak may convey  himself  through  writing  if
    literate or through signs and gestures if he  is  unable  to  read  and
    write.
            A case in point is the  silent  movies  which  were  understood
    widely because they were able to communicate ideas  to  people  through
    novel  signs  and  gestures.  Emphasised  body  language   and   facial
    expression enabled the audience to comprehend the intended message.

    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
    have any interest in the case and he should be administered oath.

    22.    In the instant case, there is sufficient material on record that
    Geeta (PW.16) was able to read and write and this fact stood proved  in
    the trial court when she wrote the telephone number of her  father.  We
    fail to understand as to why her statement could  not  be  recorded  in
    writing, i.e., she could have been given the questions in  writing  and
    an opportunity to reply the same in writing.

    23.     Be that as it may, her statement had  been  recorded  with  the
    help of her father as an interpreter, who for the reasons given by  the
    High Court, being an interested witness who  had  assisted  during  the
    trial, investigation and was examined without administering oath,  made
    the evidence unreliable. In such a fact-situation, the High  Court  has
    rightly given the benefit of doubt and acquitted the respondent.

    24.     We are fully aware of our limitation to interfere with an order
    against acquittal. In exceptional  cases  where  there  are  compelling
    circumstances and the judgment under appeal is found  to  be  perverse,
    the appellate court can interfere with  the  order  of  acquittal.  The
    appellate court should bear in mind the presumption of innocence of the
    accused and further that  the  trial  Court’s  acquittal  bolsters  the
    presumption of his innocence. Interference in a  routine  manner  where
    the other view is possible should be avoided,  unless  there  are  good
    reasons for interference.

    25.     If we examine the judgment of the High Court in  light  of  the
    aforesaid legal proposition, we do not find it to  be  a  fit  case  to
    interfere with the order of acquittal.

           The appeal lacks merit and, is accordingly, dismissed.




                                              ………………………..J.
                                              (Dr. B.S. CHAUHAN)




                                                    ………………………..J.
                                              (DIPAK MISRA)
    New Delhi,
    May 21, 2012



-----------------------
17