After completing the entire transaction of purchasing a car for 11 lakhas and add, the subsequent price decrease offer to the public is not amount unfair trade practice and it is not deficiency of service the price of the car is declared as Rs.9,99,999/- in the special offer. Despite that opponent No. 2 has recovered Rs.11,63,876/- from the complainant. The Opponent No.2 has usurped the benefit of special offer and has recovered excess amount of Rs.1,38,877/-. The complainant No.2 has usurped the same. Agreement is over on 3.9.08. Car is delivered to the complainant. Amount has been paid. Full and final payment has been made. Thereafter if any advertisement has been published between 6.9.08 to 9.9.08, the complainant is not entitled to get the benefit. Because the agreement was over and price was paid before that. No special offer was published in newspaper on the dates on which agreement of car was over. The complainant is therefore not entitled to get benefit of offer. It is the say of the complainant that had the Opponent No.2 informed about such offer, the complainant would not have purchased the car as is purchased. He would have purchased the car at a lesser price under the offer. So we do not agree with the contention of complainant that opponents have resorted to unfair trade practice. Because the seller is not bound to declare the secrets of his trade. Again the seller is not bound to inform the consumer about the date of advertisement of the scheme. There are no such rules. If the seller is kept in ban like this then seller cannot do business before the scheme. Under these circumstances, we do not agree with the contention of complainant that Opponent No.2 is bound to inform about future scheme and by not doing so, opponent No.2 has resorted to unfair trade practice.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 94  OF  2012

(From the order dated 22.09.2011 in Appeal No.491/2010 of Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

Shri Shankerlal L. Sachdev, Advocate

Meera, 36/C/A,

Bhuj – Kachchh,

Gujarat                                                                                               ........ Petitioner

            Vs.

1. The Managing Director,

     Skoda Auto India Pvt. Ltd.

     A/1/1, M.I.D.C.,

     Five Star Industries Area,

     Shendra,

     Aurangabad – 431 201

2. The Manager,

    Torque Automotive Pvt. Ltd.

    G-4, Shapath IV, Opp. Karnavati Club,

    S.G. Highway,

     Ahmedabad                                                                            ........ Respondents

REVISION PETITION NO. 95  OF  2012

(From the order dated 22.09.2011 in Appeal No.520/10 and Appeal No.491/2010 of Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

Shri Shankerlal L. Sachdev, Advocate

Meera, 36/C/A,

Bhuj – Kachchh,

Gujarat                                                                                               ........ Petitioner

            Vs.

1. The Manager,

    Torque Automotive Pvt. Ltd.

    G-4, Shapath IV, Opp. Karnavati Club,

    S.G. Highway,

     Ahmedabad

2. The Managing Director,

     Skoda Auto India Pvt. Ltd.

     A/1/1, M.I.D.C.,

     Five Star Industries Area,

     Shendra,

     Aurangabad – 431 201                                                         ........ Respondents

BEFORE:

       HON'BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER

       HON’BLE MR.S.K.NAIK, MEMBER

       

For the Complainant            :     Mr. Aditya Narain, Ms. Astha Tyagi and

                                                       Ms. Suchi Singh, Advocates.

PRONOUNCED ON 09^th MAY, 2012.

ORDER

PER JUSTICE R.C.JAIN, PRESIDING MEMBER

Challenge in these revision petitions is to the common order dated 22.9.2011 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (for short “the State Commission”) in Appeal No.491 of 2010.  The appeals before the State Commission were filed against the order dated 19.3.2010 passed by the District Forum, Kachchh-Bhuj in Complaint Case No. 245 of 2008, thereby allowing the complaint of the complainant and directing the opposite parties to pay a sum of Rs.12,57,150/- to the complainant and upon payment of such amount, the complaint was directed to handover possession of the car in question and to execute the necessary documents required in connection with the transfer of the vehicle in favour of the opposite parties.  The District Forum also awarded a compensation of Rs.50,000/- to the complainant towards mental shock and harassment suffered by the complainant.

2.      Aggrieved by the said order, Skoda India Pvt. Ltd., the manufacturer of the car filed Appeal No.520 of 2010 and M/s. Torque Automotive Pvt. Ltd., the dealer/distributor of the car filed Appeal No.491 of 2010 for setting aside the findings and order passed by the District Forum.  The State Commission on consideration of the matter and going by the pleas put forth on behalf of the manufacturer and dealer/distributor of the car in question has, however, allowed the appeal and set aside the order passed by the District Forum and as a consequence dismissed the complaint filed by the complainant.

3.      Aggrieved by the said order, the original complainant has filed these petitions.

4.      We have heard Mr. Aditya Narain, learned Counsel representing the complainant/petitioner and have considered his submissions.  Mr. Narain would assail the findings and orders passed by the State Commission primarily on the ground that the same are not based on correct and proper appreciation of the facts and circumstances of the case and least the evidence and material brought on record.  He submits that the chain of events which followed w.e.f. 2.9.2009 to 9.9.2009 would point out the adoption of unfair trade practice by the opposite parties/respondents inasmuch as the dealer/distributor of the car had shown undue haste in effecting the delivery of the car in question to the complainant on 3.9.2008 even without its registration with the concerned Motor Transport Authority of the State and by delivering the car on a temporary registration number which was against the provisions of the Motor Vehicle Act, as no vehicle can be brought on road without its registration under the Motor Vehicle Act.  That apart, it is pointed out that the opposite party/dealer has manipulated certain documents, particularly, in regard to the insurance of the vehicle.  We have noted  these submissions simply to be rejected because we find that all these pleas were urged from the side of the petitioner before the State Commission in response to the pleas of the opposite parties/dealers in appeals.  The State Commission has given its consideration to these pleas and rejected them by giving cogent reasons as under:

“10.   The complainant has purchased Skoda Octavia Ambient Car for Rs.11,63,876.00 after deducting rebate of Rs.25,000/- on 3.3.2008.  The complainant deposited to sum of Rs.1,77,873.00 in the account of Opponent No.2 at Bhuj.  The complainant has obtained Insurance Cover for the period from 3.9.08 to 2.9.09.  The Opponent No.2 had delivered the car. The complainant had applied for loan to HDFC Bank, Gandhidham.  A loan of Rs.9,61,039.00 was sanctioned on 2.8.08 (sic 2.9.08).   Disbursement order cum-delivery order was sent to Opponent No.2 by the Bank.  The same was delivered to Sanjiv Rana by Shri Hiren Suchdev – the son of the complainant. The complainant has thus paid full amount to opponent No.2, has taken delivery of the car from opponent No.2.  The sale transaction of the car was over accordingly.  No dispute has been raised in this respect.  At the relevant time, it was decided to give rebate of Rs.25,000/-.  The said rebate has been given to the complainant.

11.    It appears from the original complaint of the complainant that it is the contention of the complainant that the price of the car is declared as Rs.9,99,999/- in the special offer.  Despite that opponent No. 2 has recovered Rs.11,63,876/- from the complainant. The Opponent No.2 has usurped the benefit of special offer and has recovered excess amount of Rs.1,38,877/-. The complainant No.2 has usurped the same.  Agreement is over on 3.9.08.  Car is delivered to the complainant.  Amount has been paid.  Full and final payment has been made.  Thereafter if any advertisement has been published between 6.9.08 to 9.9.08, the complainant is not entitled to get the benefit.  Because the agreement was over and price was paid before that.  No special offer was published in newspaper on the dates on which agreement of car was over.  The complainant is therefore not entitled to get benefit of offer.  It is the say of the complainant that had the Opponent No.2 informed about such offer, the complainant would not have purchased the car as is purchased. He would have purchased the car at a lesser price under the offer.  So we do not agree with the contention of complainant that opponents have resorted to unfair trade practice.  Because the seller is not bound to declare the secrets of his trade.  Again the seller is not bound to inform the consumer about the date of advertisement of the scheme. There are no such rules.  If the seller is kept in ban like this then seller cannot do business before the scheme.  Under these circumstances, we do not agree with the contention of complainant that Opponent No.2 is bound to inform about future scheme and by not doing so, opponent No.2 has resorted to unfair trade practice.

12.    The insurance of above car has been obtained from Bhuj. The period of insurance is mentioned as 3.9.08 to 2.9.09.  In cover note the dates are changed and in that date is shown as 8.9.08 in place of 2.9.08.  The period of insurance has been changed to 2.9.08 to 7.9.09 in place of 3.9.08 to 2.9.09.  It is the contention of complainant that the benefit under the advertisement dated 9.9.08 has been usurped by Opponent No.2. We do not agree with this contention because there is no evidence to show that who has changed the date, in Cover note or that the Opponent No.2 has changed the same. Again even if the dates are changed, the advertisement was for the period from 9.9.08 to 17.9.08.  Meaning thereby that the customer who purchases the can during that period can get benefit.  If Opponent No.2 wanted to take benefit, he would not have changed date to 8.9.08 under any circumstances but they would have tried to take benefit of advertisement by tampering with date as 9.9.08.  But such attempt has not been made by Opponent No.2.  There is no dispute that the scheme of less price was in respect of car that may be sold on 9.9.08. As per the say of complainant, the agreement was over on 3.9.08 and so the complainant cannot get benefit of advertisement published on 9.9.08.  Over and above that there  is no evidence to show that change in such dates of cover note are made by opponent and opponent no. 2 cannot get benefit by such change. Therefore we do not agree with the finding of learned Forum that as Opponent No. 2  has not offered proper explanation, adverse inference can be drawn against opponent no. 2 and that the opponent no. 2 has received the benefit of the scheme of 9.9.08.

13.    The car is sold to the complainant on 3.9.08. Even if registration has been effected on 8.9.08, neither complainant nor Opponent No.2 can take benefit of scheme of 9.9.08. Neither the complainant nor the Opponent No. 2 can get benefit of scheme of 9.9.08 because of delay caused in registration as mentioned hereinabove.  We therefore do not agree in the finding of learned Forum that there is delay in registration”.

5.      As regards the contention of the complainant that opposite parties have resorted to the adoption of the unfair trade practice, the State Commission rejected the same by stating that the complainant had purchased the car with full knowledge about its price, quality and other features as on the date of delivery, therefore, the dealer could not be said to have committed any deficiency in service or having resorted to unfair trade practice because some days later, the manufacturer of the car came out with a scheme for the sale of the car for a limited period of about 10 days effective from 9.9.2009 at a lesser price than the price at which the complainant had purchased the vehicle in question  on 3.9.2009, i.e., a week prior to the floating of the said scheme.  In our view also, going by the entirety of the facts and circumstances of the case, the sale of the car in question having been completed on 3.9.2009 itself after the complainant paid the entire price after arranging the same from the bank, he cannot be heard saying that the opposite party had adopted unfair trade practice because later on the price of the car in question was reduced by more than a lakh of rupees.  The argument about registration of the car subsequent to the date of sale with the Motor Transport Authority is also of no avail because many a times cars are delivered on the request of the owner with the temporary registration number or when the owner takes the responsibility of getting the car registered with the Motor Transport Authority.

6.      Learned Counsel for the petitioner has also placed on record judgment of the Apex Court in the case of Om Prakash Vs. Assistant Engineer, Haryana Agro Industries Corporation Ltd. & Anr. – (1994) 3 SCC 504, which has been decided on its own facts and cannot be applied to the facts and circumstances of the present case.

7.      It appears to us that by filing the present complaint the complainant had attempted to misuse the jurisdiction of the Consumer Fora established under the provisions of the Consumer Protection Act, 1986. The said statute has been enacted by the Parliament with the sole object of providing a legitimate succor to the bonafide consumers who have been wronged at the hands of the seller/manufacturers of the goods and provider of services.

8.      In the case in hand, what has surprised us is the order passed by the District Forum in this case granting a relief like payment of Rs.12,57,150/- and compensation of Rs.50,000/- to the complainant.  Even if the District Forum could take a view that the opposite parties had committed some act of deficiency, the kind of relief granted by the District Forum to the complainant was certainly not called for and could not be justified in any event.  The State Commission has given cogent reasons as to why the opposite parties could not be held guilty of any deficiency in service or unfair trade practice on the part of the opposite parties and we have no reasons to differ with the same.  We find the findings and the order of the State Commission are eminently justified in the facts and circumstances of the case and on the basis of material on record.  The order does not suffer from any illegality, material irregularity much less any jurisdictional error which warrants interference by this Commission in exercise of its supervisory jurisdiction under Clause (b) of Section 21 of the Consumer Protection Act, 1986. 

9.      In view of the above, the revision petitions are devoid of any merits and are accordingly dismissed with no order as to costs.

…………………………….

( R. C. JAIN, J. )

PRESIDING MEMBER

…………………..……….

     ( S.K. NAIK)

MEMBER

K

how to ascertain benefit of doubt ?=“…Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant…” Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. In view of the above, we are of the considered opinion that the acquittal in the instant case by the trial court was totally illegal, unwarranted and based on mis-appreciation of evidence for the reason that the court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1340 of 2007


    Ramesh Harijan
    …..Appellant


                                   Versus




    State of U.P.                                                   ....
    Respondent






                                  JUDGMENT


    Dr. B.S. CHAUHAN, J.




    l.             This criminal appeal  has  been  preferred  against  the
    judgment and  order  dated  23.3.2007  passed  by  the  High  Court  of
    Allahabad in Government Appeal No. 1246 of 1999 by which the High Court
    has reversed the judgment of Additional District  and  Sessions  Judge,
    Basti in Sessions Trial No. 312 of 1996 dated 2.2.1999  acquitting  the
    appellant.  Thus, the High Court has convicted the  appellant  for  the
    offence punishable under Sections 302 and 376  of  Indian  Penal  Code,
    1860  (hereinafter  called  as  `IPC’)  and  awarded   him   the   life
    imprisonment for both the offences. However, both  the  sentences  have
    been directed to run concurrently.


    2.       Facts and circumstances giving rise to this appeal are that:
    A.      One Smt. Batasi Devi (PW.2)  lodged  an  FIR  on  2.2.1996   in
    Haraiya Police Station  alleging  that  her  daughter  Renu,  aged  5-6
    years, was found dead on her cot  in  Muradipur,  the  village  of  her
    maternal grandmother on 30.1.1996 at about 9.00 p.m. Initially, she had
    been told that her daughter died of  paralysis and she  was  buried  at
    the bank of Manorama river.  Later on she got information from   Shitla
    Prasad Verma (PW.8), Jata Shankar Singh (PW.7) and other persons of the
    same village that her daughter had been raped  and  killed  by  Ramesh,
    appellant.  She also made a request that the dead body of the child  be
    exhumed and sent for post-mortem.


    B.      On the order of the concerned  Sub-Divisional  Magistrate,  the
    dead body of Renu was dug out from the grave and sent  for  post-mortem
    on 3.2.1996.  The autopsy was conducted by Dr. Ajay  Kumar   Verma  and
    Dr. S.S. Dwedi of District Hospital.  In their opinion, death  was  due
    to shock and haemorrhage as a result of ante-mortem vaginal injuries.


    C.       On the basis of the post-mortem report, Case Crime No.  22  of
    1996 was registered against the appellant under Sections  302  and  376
    IPC.  After having the investigation, the police filed the  chargesheet
    against the  appellant.   During  the  trial  prosecution  examined  14
    witnesses to prove its case including Kunwar Dhruv Narain Singh (PW.1),
    the scribe of the FIR, Batasi Devi (PW.2), mother of the deceased Renu,
    Jata Shankar  Singh  (PW.7),  Shitla  Prasad  Verma  (PW.8)  and  after
    conclusion of the trial and considering the  evidence  on  record,  the
    trial court vide its judgment and order dated  2.2.1999  acquitted  the
    appellant of both the aforesaid charges.


    D.      Being aggrieved, the State preferred Criminal Appeal  No.  1246
    of 1999 which has been allowed by the  High  Court  vide  judgment  and
    order dated 23.3.2007 and the appellant has been convicted and  awarded
    the sentence of life imprisonment on both counts.
                 Hence, this appeal.


    3.      Shri Rajender Parsad Saxena, learned counsel appearing for  the
    appellant, has submitted that High Court  has  committed  an  error  by
    reversing the well-reasoned judgment of acquittal by the  trial  court.
    There is no iota of evidence against the  appellant  on  the  basis  of
    which the conviction can be sustained.  The evidence relied upon by the
    High Court particularly that of Kunwar Dhruv Narain Singh (PW.1),  Jata
    Shankar Singh (PW.7)  and  Shitla  Prasad  Verma  (PW.8)  cannot  stand
    judicial scrutiny as these witnesses had been motivated; improvement in
    the depositions of Jata Shankar Singh (PW.7) and  Shitla  Prasad  Verma
    (PW.8) had been to the extent that it is liable to be  discarded  as  a
    whole.  The other witnesses have turned hostile,  therefore,  there  is
    nothing on record to show that the appellant  was  connected  with  the
    crime by any means.  There is no evidence on record  on  the  basis  of
    which it can be established that Renu (deceased) used to sleep  in  the
    house of the appellant or the appellant had an  opportunity  to  commit
    the offence.  The findings recorded by the High Court are perverse  not
    being based on  evidence on record.  Thus, the appeal  deserves  to  be
    allowed.


    4.      On the contrary, Shri  Manoj  Kumar  Dwivedi,  learned  counsel
    appearing for the State has vehemently opposed  the  appeal  contending
    that the judgment of the trial court has rightly been reversed  by  the
    High Court being contrary to the evidence on record.   The  High  Court
    has recorded the findings of fact on correct appreciation of  evidence.
      Thus, no interference is warranted.   The  appeal  is  liable  to  be
    dismissed.


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


    6.      Admittedly, Renu, aged  5-6  years  of  age,  died  of  vaginal
    injuries.  The post-mortem report disclosed the  following  ante-mortem
    injuries:
           ?(1)   Contusion 4 cm x 2 cm over the right side face  below  the
           right ear lobules on upper part of the neck.
           (2)      Contusion 5 cm x 3 cm over the left side face in  front
           and above tragus of the left ear.
           (3)   Abraded contusion 4 cm X 3 cm over the back of  the  right
           shoulder joint and scapular region.
           (4)   Contusion 3 cm x 2 cm over the  upper  part  of  the  left
           scapula and back portion of the shoulder tip.
           (5)   Abraded contusion 4 cm x 1 cm on each side of  office  and
           labia majora.
           (6)   Abraded with tearing of labia majora of both side 2 cm x 1
           cm.
           (7)   Hymen absent, lower part of  vagina  badly  lacerated  and
           pubic lower part upper abdomen, and vaginal  tear  up  to  upper
           part of Guel orifice.
                     The internal examination of the supra pubic region  on
           opening the abdomen revealed that blood and gases  were  present
           and the lower part of the uterus had a bloodstained tear 1 cm  x
           1 cm. The cause of death was shock and  haemorrhage.  The  death
           could have taken place on 30.1.1996 between 9.00 or 9.30 pm.  If
           a hard object like a human penis was inserted in the  vagina  it
           could have caused the injuries Nos. 6 and 7.”


    7.      The prosecution has examined Kunwar Dhruv Narain Singh  (PW.1),
    the scribe of the FIR lodged by  Batasi  Devi  (PW.2),  mother  of  the
    deceased Renu. He deposed  that  Renu  was  living  with  her  maternal
    grandmother Smt. Phulpatta Devi who was totally blind and a  very  poor
    woman.   Her thatched house had fallen down so she used to sleep in the
    house of Ramesh, appellant which was adjacent to her house.   Renu  was
    found dead on 30.1.1996 in the night on her cot in the house of Ramesh,
    appellant.    Ramesh,  appellant  made  the  extra-judicial  confession
    before him in presence of Jata Shankar Singh (PW.7) and  Shitla  Prasad
    Verma (PW.8).  The father of Ramesh used to work in his house, however,
    at the relevant time, he was working in Sidharth  Nagar.   Batasi  Devi
    (PW.2) had come to him and asked him to write the FIR so that  she  can
    lodge the same  with  the  police  station.   However,  he  denied  the
    suggestion that he had a grudge against Ramesh,  appellant  as  it  was
    because of the appellant and his  father  that  other  persons  of  the
    village were not working at his house.


    8.      Batasi Devi (PW.2), mother of Renu, deceased, deposed that  her
    mother was very poor and her house was having a thatched roof which had
    fallen down so she used to sleep in  the  house  of  Ramesh,  appellant
    which is in very close proximity of her house.  In the  fateful  night,
    Renu slept with her  maternal  grandmother  in  the  house  of  Ramesh,
    appellant. She had been informed that her daughter died  of  paralysis.
    Renu had been buried at the bank of Manorama river.   However,  on  the
    next day, the rumour broke out that Ramesh,  appellant,  had  committed
    rape and she died of the same.  Then, she lodged the FIR.


    9.      Jata Shankar Singh (PW.7) deposed that  he  was  originally  of
    another village but was living in the  house  of  Kunwar  Dhruv  Narain
    Singh (PW.1), in the same village for 15-16 years.    He told  that  on
    30.1.1996 when he was returning alongwith Shitla Prasad  Verma  (PW.8),
    to his house  after  marketing  at  about  9.00  p.m.,  he  heard  some
    whispering near the house of appellant Ramesh.  He was having  a  torch
    so he focussed  it  in  the  same  direction  and  found  that  Ramesh,
    appellant was committing rape on a little girl of  6  years  beneath  a
    tree situated outside his house.  His  associate  Shitla  Prasad  Verma
    (PW.8) raised a cry as a result of which some persons from the  village
    gathered but appellant Ramesh ran out.  The girl had died of rape.


    10.     Shitla Prasad Verma (PW.8).  has supported the prosecution case
    narrating the similar facts as stated by Jata Shankar Singh (PW.7).


    11.     Doctor Ajay Kumar Verma (PW.11) who has conducted  the  autopsy
    on the body of Renu, deceased, supported the prosecution  case  to  the
    extent that deceased was having the ante-mortem injuries  as  mentioned
    hereinabove on her body.


    12.     Sharafat Hussain, S.I.,  (PW.13),  the  Investigating  Officer,
    deposed that he had recovered a part of  Khatari  (thin  mattress)  and
    white sheet with which  Renu  was  covered.  He  tried  to  search  the
    appellant/accused, however, the appellant could  be  arrested  at  3.35
    a.m.  in the intervening night of 3/4.2.1996 from the junction of three
    roads at Mahulghat when he was waiting for some transport to leave  the
    area.


    13.     The prosecution also examined Sumaiya Devi (PW.3), Urmila  Devi
    (PW.4), Hira Devi (PW.6), Sona  Devi  (PW.9).  However,  they  did  not
    support the prosecution case and had been declared hostile.   According
    to the aforesaid witnesses, they reached  the place of occurrence after
    having the information of Renu’s death and they  found  her  dead  body
    lying at the house of her maternal grandmother Smt. Phulpatta Devi.


    14.     The learned trial court  after  appreciating  the  evidence  on
    record acquitted the appellant on the following grounds:
        I) The prosecution could not produce any evidence to prove that  in
           the night of the incidence, Renu, deceased, had been sleeping in
           the house of the appellant Ramesh or  her  dead  body  had  been
           lying  on the cot in his house.
       II) Smt. Phulpatta, maternal  grandmother  of  Renu,  deceased,  was
           neither examined, nor  any  satisfactory  explanation  had  been
           given for not examining her.
      III) The deposition of Kunwar  Dhruv  Narain  Singh  (PW.1)  was  not
           worthy of reliance as he has deposed that the appellant had made
           extra-judicial  confession  before  him   for   committing   the
           aforesaid crime in the presence of Jata Shankar Singh (PW.7) and
           Shitla Prasad Verma (PW.8).   Such statement had not  been  made
           by either of the said witnesses.
       IV) Kunwar Dhruv Narain Singh (PW.1)  was  a  Jamindar  and  it  was
           because of the appellant’s father that other poor  persons  were
           not rendering service to  him  and  Kunwar  Dhruv  Narain  Singh
           (PW.1) had been inimical to the appellant.
        V) The deposition of Sumaiya Devi (PW.3), Urmila Devi (PW.4),  Hira
           Devi (PW.6) and Sona Devi (PW.9)  was  not  in  support  of  the
           prosecution case and all the aforesaid four witnesses  had  been
           cross-examined  but  they  could  not  be  held  to  be  hostile
           witnesses.
       VI) Sharafat Hussain, S.I., (PW.13), the Investigating Officer,  had
           recovered a part of the bed sheet and it had been sent for  CFSL
           report and to the said recovery Ram Prasad alias Parsadi  (PW.5)
           and   Bhikari  (PW.10)  did  not  support  the   recovery   and,
           therefore, recovery of the aforesaid incriminating  material  is
           to be disbelieved.
      VII) The evidence of Jata Shankar  Singh  (PW.7)  and  Shitla  Prasad
           Verma (PW.8) could not be relied upon as they had made knowingly
           improvements in the case of having  last  seen  Renu,  deceased,
           with the appellant  rather  distorted  the  whole  case  of  the
           prosecution totally as both of them had deposed  that  they  had
           seen the appellant committing rape on Renu, deceased.

    15.     In the  appeal,  the  High  Court  has  reversed  the  findings
    recorded by the trial court on the following grounds:


        I) There was sufficient  evidence  on  record  to  show  that  Smt.
           Phulpatta Devi, maternal  grandmother  of  Renu,  deceased,  was
           totally blind and a  very  poor  woman  and  the  roof  of   her
           thatched house had fallen and she used to sleep in the house  of
           the appellant Ramesh in her neighbourhood with Renu, deceased.
       II) It was no one’s case that Kunwar Dhruv Narain Singh  (PW.1)  was
           inimical to the appellant for any reason whatsoever as  none  of
           the witnesses had deposed  that  after  the  appellant’s  father
           joined  the  service,  he  had  supported  the  other  villagers
           financially and, therefore, they stopped working at the house of
           Kunwar Dhruv Narain Singh (PW.1).
      III) The witnesses Sumaiya Devi (PW.3), Urmila Devi (PW.4), Hira Devi
           (PW.6) and Sona Devi (PW.9), once had  been   cross-examined  by
           the prosecution as they had  not   supported  the  case  of  the
           prosecution, the trial  court  was  wrong  that  they  were  not
           hostile witnesses.   Similarly  remained  the  position  of  the
           witnesses of the recovery of sheet cover and bichona i.e. of Ram
           Prasad alias Parsadi (PW.5) and  Bhikari (PW.10).
       IV) The evidence of Kunwar Dhruv Narain Singh (PW.1),  Jata  Shankar
           Singh (PW.7) and Shitla Prasad Verma (PW.8) could be relied upon
           at least to the extent  that  deceased  was  last  seen  in  the
           company of the appellant.
        V) The  trial  court  had  given  undue  importance  to  the  minor
           contradictions in the depositions of  the  witnesses.  In  fact,
           there was evidence that after committing the crime outside,  the
           appellant brought the corpus of the child and placed it  on  the
           cot.


    16.     The law of interfering with the judgment of acquittal is  well-
    settled. It is to the effect that only in exceptional cases where there
    are compelling circumstances and the judgment in appeal is found to  be
    perverse, the appellate court can  interfere  with  the  order  of  the
    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  innocence.   Interference  in  a  routine
    manner where the other view is possible should be avoided, unless there
    are good reasons for  interference.   (Vide:   State  of  Rajasthan  v.
    Talevar & Anr., AIR 2011 SC 2271; State of U.P. v. Mohd. Iqram &  Anr.,
    AIR 2011 SC 2296; Govindaraju @ Govinda v. State by Srirampuram  Police
    Station & Anr., (2012) 4 SCC 722; and State of Haryana v.  Shakuntla  &
    Ors., (2012) 4 SCALE  526).


    17.     In the aforesaid fact-situation, we have to weigh as to whether
    the High Court is justified in reversing  the  judgment  and  order  of
    acquittal recorded by the trial court.
            We have been taken through the entire evidence  on  record  and
    after re-appreciating the same we can unhesitatingly record that:
    (i)     Undoubtedly, the trial court has not made any reference to  the
    depositions of Batasi Devi (PW.2) and also of Kunwar Dhruv Narain Singh
    (PW.1) in respect to the fact that the thatched house of roof  of  Smt.
    Phulpatta Devi, maternal grandmother of Renu, deceased  had fallen  and
    she as well as Renu used to sleep in the  house  of  Ramesh,  appellant
    which was in very close vicinity of  Smt. Phulpatta’s house.  Ganga Ram
    (DW.1) has stated that on the day of occurrence,  Smt.  Phulpatta  Devi
    and Renu did not sleep in the house  of  Ramesh,  however,  as  he  was
    living permanently in the city and did not say that he was  present  on
    that  day  in  the  village,  his  evidence  cannot   be   taken   into
    consideration so far as this issue is concerned.   The defence did  not
    cross-examine  Kunwar Dhruv Narain Singh (PW.1) and Batasi Devi  (PW.2)
    on this issue. Thus, the trial court committed an error recording  such
    finding of fact.
    (ii)    It has come on record that Smt. Phulpatta  Devi  was   an  old,
    infirm and totally blind woman and it was for this  reason  that  Renu,
    deceased was left for her assistance. The trial court ought not to have
    drawn adverse inference for not examining Smt. Phulpatta  Devi  by  the
    prosecution.  Thus, the adverse inference drawn by the trial  court  on
    this count is unwarranted and uncalled for.
    (iii)   The trial court has held that Kunwar Dhruv Narain Singh  (PW.1)
    had been inimical  to  Ramesh  and  his  family  for  the  reason  that
    appellant’s father had been working in the agricultural  field  at  the
    said witness and after  joining  the  service  appellant’s  father  had
    rendered financial help to other poor persons of the village  and  thus
    those poor persons were not available for work to the said witness.  In
    this regard, the defence has examined Ganga Ram (DW.1) who had  deposed
    that the appellant’s father had been  looking  after  the  agricultural
    work of that witness, however, joined the service  in  court  14  years
    prior to the date of incident and Ganga Ram’s family was  also  looking
    after the agricultural work of the  said witness but 8  years prior  to
    the date of incident. He had also left the village and opened a  beetle
    shop in the city after getting financial aid from appellant’s father.
            Such an  evidence is required to be examined in  the  light  of
    attending circumstances and particularly taking into consideration  the
    proximity of time. Time is the greatest heeler. In case the appellant’s
    father had left  working in the field of the witness 14 years prior  to
    the date of incident and Ganga Ram’s (DW.1) family  has  left  8  years
    prior to  the said date, the time gap itself  falsifies  the  testimony
    for the reason that the time gap is a factor  of  paramount  importance
    in this regard. More so, it is not the  defence  case  that  any  other
    family or labour was  available  in  the  village  to  look  after  the
    agricultural work of the said witness.
    (iv)    The recovery of part of the  sheet  and  white  clothes  having
    blood and semen  as per the FSL report  has been  dis-believed  by  the
    trial court in view of the fact that Ram Prasad  alias  Parsadi  (PW.5)
    and Bhikari (PW.10)  did not support the prosecution  case  like  other
    witnesses who did not support the last seen  theory.  The  trial  court
    failed to appreciate that both the said  witnesses,  Ram  Prasad  alias
    Parsadi (PW.5) and Bhikari (PW.10) had admitted  their  signature/thumb
    impression on the recovery
            The factum of taking the material exhibits and preparing of the
    recovery memo with regard to the same and sending the cut out  portions
    to the Serologist who found the blood and semen  on  them  vide  report
    dated 21.3.1996 (Ext.  Ka 21) is not disputed.  The serological  report
    also revealed that the vaginal swab which was taken by the  doctor  was
    also human blood and semen stained.


    18.     It is a settled  legal  proposition  that  the  evidence  of  a
    prosecution witness cannot be  rejected  in  toto  merely  because  the
    prosecution chose to treat him as hostile and cross examine  him.   The
    evidence of such witnesses cannot be treated as effaced or  washed  off
    the record altogether but the same can be accepted to the  extent  that
    their version is found to be dependable on a careful scrutiny  thereof.
    (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra
    Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v.  State  of
    Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v.  State  of
    Madhya Pradesh, AIR 1991 SC 1853).


    19.     In State of U.P. v. Ramesh Prasad Misra &  Anr.,  AIR  1996  SC
    2766, this Court held that evidence of a hostile witness would  not  be
    totally rejected if spoken in favour of the prosecution or the  accused
    but required to be subjected to close scrutiny and that portion of  the
    evidence which is consistent  with  the  case  of  the  prosecution  or
    defence can be relied upon.   A similar view  has  been  reiterated  by
    this Court in Balu Sonba Shinde v. State of Maharashtra, (2002)  7  SCC
    543; Gagan Kanojia & Anr. v. State of  Punjab, (2006) 13 SCC 516; Radha
    Mohan Singh @ Lal Saheb & Ors. v. State  of  U.P.,  AIR  2006  SC  951;
    Sarvesh Narain  Shukla v. Daroga Singh & Ors., AIR  2008  SC  320;  and
    Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462.
                 Thus, the law can be summarised to  the  effect  that  the
    evidence of a hostile witness cannot  be  discarded  as  a  whole,  and
    relevant parts thereof which are admissible in law, can be used by  the
    prosecution or the defence.   (See also: C. Muniappan & Ors.  v.  State
    of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of
    Delhi), (2011) 2 SCC 36)


    20.     Undoubtedly, there may be some exaggeration in the evidence  of
    the prosecution witnesses, particularly,  that of  Kunwar Dhruv  Narain
    Singh (PW.1), Jata Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8).
     However, it is the duty of the court to unravel the  truth  under  all
    circumstances.

    21.     IN BALKA SINGH & ORS. V. STATE OF PUNJAB,  AIR  1975  SC  1962,
    THIS COURT CONSIDERED  A  SIMILAR  ISSUE,  PLACING  RELIANCE  UPON  ITS
    EARLIER JUDGMENT IN ZWINGLEE ARIEL V. STATE OF MADHYA PRADESH, AIR 1954
    SC 15 AND HELD AS UNDER:
           “The Court must make an  attempt  to  separate  grain  from  the
           chaff, the truth from the falsehood,  yet  this  could  only  be
           possible when the true is separable from  the  falsehood.  Where
           the grain cannot be separated from the chaff because  the  grain
           and the chaff are so inextricably mixed up that in  the  process
           of separation, the Court would have to reconstruct an absolutely
           new case for the prosecution by divorcing the essential  details
           presented by the prosecution completely from the context and the
           background against which they are made, then this principle will
           not apply.”




    22.     In Sukhdev Yadav & Ors.  v. State  of Bihar, AIR 2001 SC  3678,
    this Court held as under:
           “It is indeed necessary however to note that there would  hardly
           be a witness whose evidence does  not  contain  some  amount  of
           exaggeration  or  embellishment,  sometimes  there  would  be  a
           deliberate attempt to offer the same and sometimes the witnesses
           in their over anxiety to do better from the witness-box  details
           out an exaggerated account.”


    23.     A similar view has been re-iterated in Appabhai & Anr. v. State
    of Gujarat, AIR 1988 SC 696,  wherein  this  Court  has  cautioned  the
    courts below not to give undue importance to minor discrepancies  which
    do not shake the basic version of the prosecution case.  The  court  by
    calling into aid its vast experience of men and  matters  in  different
    cases must evaluate the entire material  on  record  by  excluding  the
    exaggerated version given by any witness for the reason that  witnesses
    now-a-days go on adding embellishments to their version perhaps for the
    fear of their testimony being  rejected  by  the  court.  However,  the
    courts should not dis-believe the evidence of such witnesses altogether
    if they are otherwise trustworthy.


    24.     In Sucha Singh v. State of  Punjab,  AIR  2003  SC  3617,  this
    Court had taken note of its various earlier  judgments  and  held  that
    even if major portion of the evidence is found to be deficient, in case
    residue is sufficient to prove guilt of an accused, it is the  duty  of
    the court to separate grain from chaff. Falsity of particular  material
    witness or material particular would not ruin it from the beginning  to
    end. The maxim falsus in uno falsus in omnibus has  no  application  in
    India and the witness cannot be branded as a liar.  In case this  maxim
    is applied in all the cases it is to be feared that  administration  of
    criminal justice would come to a dead stop. Witnesses just cannot  help
    in giving embroidery to a story, however, true in the main.  Therefore,
    it has to be appraised in each case as to what extent the  evidence  is
    worthy of credence, and merely  because  in  some  respects  the  court
    considers the same to be insufficient or unworthy of reliance, it  does
    not necessarily follow as a matter of law that it must  be  disregarded
    in all respects as well.

    25.     In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra,  AIR
    1973 SC 2622,  this Court held :
           “…Thus too frequent acquittals of  the  guilty  may  lead  to  a
           ferocious penal law, eventually eroding the judicial  protection
           of the guiltless. For all these reasons it is true to say,  with
           Viscount Simon, that "a miscarriage of justice  may  arise  from
           the acquittal of the guilty no less than from the conviction  of
           the innocent ..." In short, our jurisprudential  enthusiasm  for
           presumed innocence must be moderated by the  pragmatic  need  to
           make criminal justice potent and realistic. A balance has to  be
           struck between chasing chance possibilities as  good  enough  to
           set the delinquent free and chopping the logic  of  preponderant
           probability to punish marginal innocents. We have adopted  these
           cautions in analysing the evidence and appraising the  soundness
           of  the  contrary  conclusions  reached  by  the  courts  below.
           Certainly, in the last analysis reasonable doubts  must  operate
           to the advantage of the appellant…”


    (See also: Bhagwan Singh & Ors. v. State of M.P.,  AIR  2002  SC  1621;
    Gangadhar Behera & Ors. v. State of Orissa, AIR  2002  SC  3633;  Sucha
    Singh  (supra); and S. Ganesan v. Rama Raghuraman & Ors., (2011) 2  SCC
    83).


    26.     Therefore, in such a case the paramount importance of the court
    is to ensure that miscarriage of justice is avoided.   The  benefit  of
    doubt particularly in every case may not  nurture  fanciful  doubts  or
    lingering suspicion and thereby destroy social  defence.  A  reasonable
    doubt is not an imaginary trivial or merely possible doubt, but a  fair
    doubt based upon reason and common sense.


    27.     In view of the above, we are of  the  considered  opinion  that
    the acquittal in the instant  case  by  the  trial  court  was  totally
    illegal, unwarranted and based on mis-appreciation of evidence for  the
    reason  that  the  court  had  given  undue  weightage  to  unimportant
    discrepancies and inconsistencies  which  resulted  in  miscarriage  of
    justice.   Thus, the High Court was fully justified  in  reversing  the
    order of acquittal.
            In view of the above, the appeal lacks merit and is accordingly
    dismissed.


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




                                                ………………………..J.
                                              (DIPAK MISRA)


    New Delhi,
    May 21, 2012


    -----------------------
21

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



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