to a deaf and dumb witness and involving an interpreter for understanding
the evidence of such a witness, the Supreme Court in the decision reported
as (2012) 5 SCC 789 State of Rajasthan Vs. Darshan Singh @ Darshan Lal held:
“26. The object of enacting the provisions of Section 119 of
the Evidence Act reveals that deaf and dumb persons were
earlier contemplated in law as idiots. However, such a view has
subsequently been changed for the reason that modern science
revealed that persons affected with such calamities are
generally found more intelligent, and to be susceptible to far
higher culture than one was once supposed. When a deaf and
dumb person is examined in the court, the court has to exercise
due caution and take care to ascertain before he is examined
that he possesses the requisite amount of intelligence and that
he understands the nature of an oath. On being satisfied on this,
the witness may be administered oath by appropriate means
and that also with the assistance of an interpreter. However, in
case a person can read and write, it is most desirable to adopt
that method being more satisfactory than any sign language.
The law requires that there must be a record of signs and not
the interpretation of signs.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered on: June 03, 2016
CRL.A. 751/2014
CHANDER SINGH Vs STATE
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By the instant appeal, the appellant Chander Singh challenges the
impugned judgment dated 17
th December, 2013 whereby he has been
convicted for the offence defined under Section 9(k), punishable under
Section 10 of The Protection of Children from Sexual Offences Act, 2002
(in short the POCSO Act) in FIR No.80/2013 registered at PS Mangol Puri
and the order on sentence dated 18th December, 2013 directing him to
undergo rigorous imprisonment for a period of six years and fine of `5,000/-
in default whereof to undergo simple imprisonment for a period of three
months.
2. The prosecution case in brief is that on February 09, 2013 at about
7.28 PM, PW12 HC Laxman Singh was handed-over DD No.18, Ex.PW-
12/A informing that a boy was kidnapping a girl and the said boy was
apprehended by the caller at K Block complex. On reaching the spot, he
found Chander Singh apprehended by public. Raj Kumar who made the call
to the PCR was found to be the maternal uncle of the prosecutrix, who was a
minor, deaf and dumb girl aged 12 years. Statement of the mother of the
prosecutrix was recorded wherein she stated that at around 7.00 PM her
daughter aged 12 years who was deaf and dumb had gone to throw garbage
in the dustbin. She returned back in a perplexed and perturbed condition.
When she and her brother asked her, she explained by sign language that
near the dustbin one man pressed her mouth, her breast and the lower
abdomen. The prosecutrix ran towards her house after freeing herself from
his clutches. She and her brother along with the prosecutrix went to the
dustbin where her daughter pointed out towards a boy whose name was
revealed as Chander Singh, S/o of Sukhbir Singh who was apprehended by
her brother. Her brother made the PCR call. Chander Singh was
apprehended at the spot and both the prosecutrix and Chander Singh were
got medically examined.
3. Statement of prosecutrix was recorded under Section 164 Cr.P.C. with
the help of interpreter Ms.Rita Kanojia PW-3 before the learned
Metropolitan Magistrate. Learned Magistrate questioned her generally.
When she was able to the tell the name of her parents, sister and replied that
she had no brother, her statement was recorded under Section 164 Cr.P.C.
wherein she stated “He had mustache. He gagged my mouth with his hand.
He pressed my breast with his hand. Then he caught hold of my hand. He
was taking me by catching hold of my hand. He tried to press me by both
his hands. When I tried to run away he gave a slap on my face. He had
done it twice earlier. Do not want to say anything more”.
4. Though MLC of the prosecutrix was conducted obviously there would
be no such injury which could be reflected in the MLC. After investigation
was completed and charge-sheet was filed, Chander Singh was charged for
offence defined under Section 7 and punishable under Section 8 of POCSO
Act, besides Section 354-A IPC to which he pleaded not guilty.
5. During the course of trial, besides the prosecutrix who was examined
as PW-2, her father, mother and maternal uncle were examined as PW-1,
PW-4 and PW-5 respectively. The interpreter Ms.Rita Kanojia was
examined as PW-3 and the learned Metropolitan Magistrate as PW-8. To
prove the age of the prosecutrix the investigating officer produced the
certificate from the school Ex.PW-14/D which noted her date of birth as
February 17, 2000. Thus the prosecutrix was 8 days less than 13 years on
the date of incident.
6. This Court need not note the testimony of any other witness except
the prosecutrix PW-2 for the reason no other person witnessed the incident
and her mother PW-4 whose evidence would be relevant and admissible
under Section 6 and 8 of the Evidence Act. Statement of the prosecutrix in
the Court was recorded with the assistance of PW-3 Rita Kanojia, Assistant
Teacher/ Support Person working at Nursery Primary School for Deaf,
Sector-4, Rohini, an institution run by the Delhi Government, Social
Welfare Department. The learned Trial Court after being satisfied noted the
relevant portion of the testimony of the prosecutrix as under:
“Q. Aap batao ki kya hua tha?
Ans. The witness has stood up and look back towards the back
wall of the Court room where the accused is sitting. She has
then made a gesture with her hand by closing her mouth and
then holding her hand. She has also made gesture by putting
hand on her abdomen and on her lower back. The gesture has
been interpreted by Ms.Rita Kanojia to state that the accused,
present in the Court today, had shut the mouth of witness by his
hand and had held her hand. He also put his hand on her
abdomen and lower back.
The witness has now made gesture by holding both her
hands in a cross position in front of her and pointed towards
accused. The gesture has been interpreted by Ms.Rita Kanojia
to state that accused had embraced her.
Q. Phir kya hua:
Ans. The witness has again held her hand and made gesture of
being dragged and then getting her hand free and then gesture
of running. The gestures have been interpreted by Ms.Rita
Kanojia to state that accused had dragged the witness and that
the witness managed to free herself and run away.
Q. Phir Kya hua:
Ans. The witness has made lip formation of word „mummy‟
and also gesture of holding her hand and calling. This gesture
has been interpreted by Ms.Rita Kanojia to state that the victim
went to her mother and brought her at that place.
Q. Phir Kya hua?
Ans. The witness has made lip formation of word „mummy‟
and also made gesture of pulling of cart with her hands. This
gesture has been interpreted by Ms.Rita Kanojia to state that
the mother and father of the victim came there. She also states
that by gesture of pulling of cart, the witness referring to her
father, who is working as labourer.
Q. Phir Kya hua:
Ans. The witness has made gesture with lips to state that
„mummy‟ and pulling of cart gesture with her hand and pointed
towards accused and then made gesture of holding her hand.
These gestures have been interpreted by Ms.Rita Kanojia to
state that the accused was caught hold of by the parents of the
witness.
Q. Phir Kya hua?
Ans. The witness made round bangle like gesture around her
hand, this gesture has been interpreted by Ms.Rita Kanojia to
state that the police had come and taken the accused.”
7. Questions such as whether the incident took place in the morning or
evening or at what distance were asked which the witness could not explain
by gestures, however she made a drawing which was taken on record as
Annexure P-1 wherein she drew a house in the form of a hut and a passage
thus clearly showing that the incident took place just a few yards away from
her house on the road. The testimony of the prosecutrix through her sign
language inspires confidence and is sufficient to prove the offence
committed by Chander Singh.
8. The twin arguments raised by learned counsel for the appellant are
that since the prosecutrix could not be cross-examined her testimony cannot
be read in evidence and even if the offence is proved against the appellant,
the same would fall under Section 7 punishable under Section 8 of POCSO
Act and not under Section 9(k) punishable under Section 10 of the POCSO
Act.
9. As noted above the prosecutrix is a deaf and dumb girl and obviously
would not be able to face grilling cross-examination which learned counsel
for the appellant attempted to do. However even in cross-examination on
the relevant point as to where the incident took place she was able to explain
by drawing. The purpose of cross-examination is to test the veracity of the
version of the complainant which in this case was explained by gestures by
the prosecutrix to her mother on whose statement the FIR was registered and
who also deposed as PW-4 in the witness box. Nothing could be elicited
from the mother of the prosecutrix in cross-examination. The prosecutrix
had stood by her complaint even in her deposition before the Court and her
testimony cannot be brushed aside merely because she has not been able to
answer irrelevant and unnecessary questions put to her in the crossexamination.
10. Section 119 of the Indian Evidence Act, 1872 provides:
“119. Dumb witnesses.- A witness who is unable to speak may
give his evidence in any other manner in which he can make it
intelligible, as by writing or by signs, but such writing must be
written and the signs made in open Court. Evidence so given
shall be deemed to be oral evidence.”
11. While dealing with the mode of recording, non-administration of oath
to a deaf and dumb witness and involving an interpreter for understanding
the evidence of such a witness, the Supreme Court in the decision reported
as (2012) 5 SCC 789 State of Rajasthan Vs. Darshan Singh @ Darshan Lal
held:
“26. The object of enacting the provisions of Section 119 of
the Evidence Act reveals that deaf and dumb persons were
earlier contemplated in law as idiots. However, such a view has
subsequently been changed for the reason that modern science
revealed that persons affected with such calamities are
generally found more intelligent, and to be susceptible to far
higher culture than one was once supposed. When a deaf and
dumb person is examined in the court, the court has to exercise
due caution and take care to ascertain before he is examined
that he possesses the requisite amount of intelligence and that
he understands the nature of an oath. On being satisfied on this,
the witness may be administered oath by appropriate means
and that also with the assistance of an interpreter. However, in
case a person can read and write, it is most desirable to adopt
that method being more satisfactory than any sign language.
The law requires that there must be a record of signs and not
the interpretation of signs.
27. In Meesala Ramakrishan v. State of A.P. [(1994) 4 SCC
182 : 1994 SCC (Cri) 838] , 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 the 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.
28. 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.
29. 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.”
12. It is further required to be noted that the purpose of cross-examination
is to ascertain the truth in relation to the acquisition leveled against an
accused person and a discretion is vested in the Court to control the crossexamination.
A party cross-examining a deaf and dumb witness like any
other witness is required to act within the bounds of law and cannot be
permitted to cross-examine the witness all and sundry on irrelevant
questions. Section 138 of the Indian Evidence Act itself provides that the
examination and cross-examination of a witness must relate to relevant facts
but the cross-examination need not be confined to the facts to which the
witness testified in his examination-in-chief. The purpose is that in crossexamination
besides relevant facts, facts which impeach the credibility of
the witness and shake his creditworthiness can also be asked. However still
the first portion of Section 138 of the Evidence Act qualifies this right
confining the cross-examination to relevant facts though it may not have
been so deposed in the examination-in-chief. It is the duty of a Judge to
control the cross-examination to prevent any abuse and to protect a witness
from being unfairly dealt with. Sections 149 to 152 of the Evidence Act
prohibit asking questions without reasonable grounds, which are indecent
and scandalous in nature, or which are intended to insult or annoy the
witness.
13. When a deaf and dumb witness is under cross-examination, the Court
is required to take due care of the fact that vocabulary of such a person is
limited as he or she speaks through sign language and it may not be possible
for that witness to answer, or in detail explain every answer by sign
language. This disability of a limited vocabulary of sign language does not
affect either the competence or the credibility of such witness. The Court is
required to exercise control over the cross-examination keeping in view the
ability of the witness to answer the questions.
14. From the examination of the witness which was in question-answer
form and the response to the cross-examination wherein the witness drew
and explained the distance where the incident took place, it can safely be
held that there was sufficient compliance of the right to cross-examination
provided to an accused and the testimony of this witness is not required to
be effaced.
15. It would be now apposite to note the testimony of PW-4 the mother of
the prosecutrix who deposed that on February 09, 2013 at about 7.00 PM her
daughter had gone to throw the garbage in the public dustbin near her house.
When her daughter came back from the public dustbin she was very nervous
and perplexed. When she asked from her by making gestures the
prosecutrix told her by gestures that one person misbehaved with her by
pressing her mouth and breast and putting his hand on her lower back side.
On hearing this she along with her husband and the prosecutrix went to the
said place i.e. public dustbin at „K‟ block where the appellant was present
and her daughter pointed towards the appellant as the person who had
misbehaved with her. On seeing them, appellant tried to run away from
there but in the meanwhile her brother also came there and apprehended the
appellant. The conduct of prosecutrix pointing out towards appellant as the
person soon after the incident when she was in a perplexed and nervous
condition forms part of the transaction of the incident itself and is thus
admissible under Section 6 and 8 of the Evidence Act. On being pointed
out, the conduct of the appellant trying to run away from the spot is also
relevant and admissible under Section 8 of the Indian Evidence Act. The
evidence on record as discussed aforesaid proves beyond reasonable doubt
the offence committed by Chander Singh.
16. The only issue which now arises for consideration is whether
appellant can be convicted for offence defined under Section 7 and
punishable under Section 8 of the POCSO Act or defined under Section 9(k)
and punishable under Section 10 of POCSO Act. The appellant was charged
for offence defined under Section 7 and punishable under Section 8 of
POCSO Act i.e. “sexual assault”. Section 7 POCSO Act defines the term
sexual assault as physical contact without penetration. The punishment for
the same is provided in Section 8 wherein the minimum sentence is 3 years
which may extend to 5 years with fine. Section 9 of POCSO Act defines
“aggravated sexual assault” which is punishable under Section 10 POCSO
Act. Section 9 POCSO Act defines different types of sexual assault which
would be termed as aggravated sexual assault. Sub-clause (k) of Section 9
POCSO Act provides that whoever, taking advantage of a child‟s mental or
physical disability, commits sexual assault on the child would be punished
for aggravated sexual assault as per Section 10 of POCSO Act wherein the
minimum punishment is of 5 years imprisonment which may extend to 7
years and fine.”
17. In the facts of the case this Court is not required to go into whether
aggravated sexual assault is made out or not from the evidence on record,
for the reason there was no charge for aggravated sexual assault framed
against the appellant. It is trite law that though charged with a major offence
an accused can be convicted for a minor offence, however the vice-versa is
impermissible which has been done by the learned Trial Court.
18. Section 222 of Cr.P.C. provides –
“222. When offence proved included in offence charged (1) When a
person is charged with an offence consisting of several particulars, a
combination of some only of which constitutes a complete minor
offence, and such combination is proved, but the remaining
particulars are not proved, he may be convicted of the minor offence,
though he was not charged with it.
(2) When a person is charged with an offence and facts are proved
which reduce it to a minor offence, he may be convicted of the minor
offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of
an attempt to commit such offence although the attempt is not
separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction
of any minor offence where the conditions requisite for the initiation
of proceedings in respect of that minor offence have not been
satisfied.”
19. Dealing with Section 237 Cr.PC 1898 which is akin to Section 222 of
Cr.PC 1973, the Constitution Bench of the Supreme Court in the decision
reported as AIR 1956 SC 116 Willie (William) Slaney Vs. State of Madhya
Pradesh giving illustrations held-
“There is no reason to think that section 535 of the Code of
Criminal Procedure is not also to be understood with reference to the
same context. There may be cases where, a trial which proceeds
without any kind of charge at the outset can be said to be a trial
wholly contrary to what is prescribed by the Code. In such case the
trial would be illegal without the necessity of a positive finding of
prejudice. By way of illustration the following classes of cases may
be mentioned :
(a) Where there is no charge at all as required by the Code
from start to finish - from the Committing Magistrate's court to the
end of the Sessions trial; the Code contemplates in section 226 the
possibility of a committal without any charge and it is not impossible
to conceive of an extreme case where the Sessions trial also proceeds
without any formal charge which has to be in writing and read out
and explained to the accused (section 210(2) and section 251(A)(4)
and section 227).
The Code requires that there should be a charge and it should
be in writing. A deliberate breach of this basic requirement cannot be
cured by the assertion that everything was orally explained to the
accused and the assessors or jurors, and there was no possible or
probable prejudice.
(b) Where the conviction is for a totally different offence from
the one charged and not covered by sections 236 and 237 of the Code.
On a charge for a minor offence, there can be no conviction for a
major offence, e.g., grievous hurt or rioting and murder. The omission
to frame a separate and specific charge in such cases will be an
incurable irregularity amounting to an illegality.”
20. Consequently, the conviction of Chander Singh is altered to one for
offence defined under Section 7 and punishable under Section 8 of POCSO
Act. The punishment for sexual assault prescribed under Section 8 is
imprisonment for not less than 3 years which may extend upto 5 years and to
pay fine as well. The conduct of Chander Singh in sexually assaulting a
deaf and dumb girl who was not in a position to protect herself fully
warrants maximum punishment. Consequently, the order on sentence of
Chander Singh is altered and modified. Chander Singh is directed to
undergo rigorous imprisonment for a period of 5 years and to pay a fine of
`10,000/- in default whereof to undergo simple imprisonment for a period of
1 month.
21. Appeal is disposed of.
22. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.
23. TCR be returned
(MUKTA GUPTA)
JUDGE
JUNE 03, 2016
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