Held :
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. (Para21)
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.
(Para
20)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.8 70 of 2007
State of Rajasthan …..Appellant
Versus
Darshan Singh @ Darshan Lal …..
Respondents
JUDGMENT :Dr. B.S. CHAUHAN, J.
1.
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 postmortem 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, respondentaccused 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 postmortem 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 crossexamination, 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, respondentaccused, 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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