In the High Court at Aurangabad, this criminal appeal challenging a conviction for rape under Section 376 IPC was dismissed. The Single Judge held that the interpreter was independent and expert, the gesture recording complied with the Indian Evidence Act, and prejudice was not established.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
(1) Cri.Appeal681-11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 681 OF 2011
Ramesh Hilal Ahire,
Age : 21 years, Occu. Business,
R/o Pimpalwada Mhalsa, Taluka
Chalisgaon, District Jalgaon
APPELLANT
VERSUS1. The State of Maharashtra, through Bayjabai w/o Hiraman Ahire
2. Bayjabai Hiraman Ahire, Age : 35 years, Occu. Household, R/o Pimpalwada Mhalsa, Taluka Chalisgaon, District Jalgaon.
RESPONDENTS
....
Mr. K.P. Chaware, advocate for the appellant.
Mr. T.S. Lodhe, A.P.P. for the respondent No. 1.
Mr. A.P. Basarkar, advocate for the respondent No. 2.
....
CORAM : M.T. JOSHI,J.
DATE OF RESERVING : 30.04.2012
DATE OF PRONOUNCING: 13.06.2012
JUDGMENT:
1. Aggrieved by the conviction for the offence
punishable under section 376 of the Indian Penal Code
and consequential sentence to suffer rigorous
imprisonment for seven years and to pay a fine of
Rs. 3000/-, the present appeal is preferred by the
original accused.
(2) Cri.Appeal681-11
2.The prosecution case in short is as under:-
.The prosecutrix - about 35 years old lady -
is a completely hearing and speech impaired lady.
She as well as her husband used to reside away from
her elder sister-in-law in the village as detailed in
the F.I.R. The prosecutrix as well as her husband
used to beg in the village to earn their livelihood.
.In the circumstances, on 8th March, 2010 at
about 4.30 p.m., the complainant lady was given
information by the villagers that the prosecutrix was
weeping in her home. The complainant lady, therefore,
went there. She found that the prosecutrix had
swollen face and certain blood stains on her blouse.
The complainant lady, therefore, enquired with the
proecutrix by gestures to find out as to what had
happened. By the gestures, the prosecutrix told the
complainant lady that when in the noon of the day,
she (prosecutrix) went to the field in order to bring
certain firewood, a person bet her and thereafter
committed forcible sexual intercourse with her. When
the complainant lady asked the prosecutrix by signs
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as to who was the person, she (prosecutrix) indicated
towards the whole of the lane where she was residing.
In the circumstances, the complainant lady took the
prosecutrix in the lane whereupon she specifically
pointed the house of the present accused/appellant -
Ramesh. As the accused was not at home, his nephew
Raju fetched the accused from his field. Upon that,
the prosecutrix pointed a finger to him and made
gestures which indicated that the accused had
committed sexual intercourse with the prosecutrix in
the field. Thereafter, the complainant lady enquired
with the prosecutrix about the place of occurrence.
Upon that, the prosecutrix took the complainant lady
and their relatives to the field of the accused and
showed the specific place in Bajra crop. Thereupon,
the complainant lady alongwith some relatives went to
Mehunbare Police Station on the next day. There, the
complainant lady filed the complaint explaining all
the above facts.
3.Upon registration of the crime, the
investigation was taken over by PW No. 8 PSI Deelip
Karle. The Investigating Officer called PW2 Sunita
Pazare, a teacher working in the school of hearing
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and speech impaired students at Chalisgaon. With the
help of the said expert, the prosecutrix was
interrogated and her statement was recorded in
question and answer form. The expert also was taken
to the spot of occurrence in order to interpret the
gestures of the prosecutrix. There, in the field, the
specific place was shown of which the spot panchanama
was recorded.
.The prosecutrix was referred to the
Municipal Hospital, Chalisgaon. She was examined by
PW9 Dr. Devsing Chavan (since retired) on the very
same day i.e. on 9th March, 2010 at 10.15 p.m. He
inter alia found that there was contusion over the
left cheek of the prosecutrix. He found that the
vulva, libia minora and libia majora of the
prosecutrix were swollen. Few pubic hairs were
matted. Sticky fluid was present in vagina while
hymen was old torn. The Medical Officer preserved the
blood swab sample of the fluid for chemical analysis.
.Accused Ramesh was arrested after seven days
i.e. on 16th March, 2010. He was also examined by
the very same Medical Officer wherein it was found
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that the appellant was capable of committing sexual
intercourse.
4.The clothes of the prosecutrix as well as
those of the accused were seized and were also sent
for chemical analysis. The chemical analysis report
showed that the saree, blouse and petticoat of the
prosecutrix had considerable number of blood stains
of `A' group. As regards other articles, the analysis
was inconclusive.
5.Before the learned Sessions Judge, in all
ten witnesses were examined. Those were PW1 - the
complainant lady, PW2 - Interpreter Smt. Sunita
Pazare, PW3 - the prosecutrix herself, who has made
certain gestures in the court hall and were
interpreted by PW2 Smt. Sunita Pazare. PW4 - Namdeo
Mali was the panch witness to the seizure of the
clothes of the prosecutrix. PW5 Krushnarao Devkar
and PW7 Machhindra Patil were the panch witnesses to
the spot of occurrence. PW6 - Police Constable
Chandrasing Patil was the carrier of the articles to
the Chemical Analyzer. PW8 PSI Deelip Karle as well
as PW10 P.I. Sitaram Kolhe had conducted the
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investigation in the case while PW9 Dr. Devsing
Chavan - Medical Officer had examined the prosecutrix
and the accused, as detailed above.
6.The learned Sessions Judge believing that
the testimony of the prosecutrix as interpreted by
the expert coupled with the corroborative pieces of
evidence of the complainant lady to whom immediate
statement was made by the prosecutrix and the medical
evidence concluded that the prosecution has proved
its case beyond reasonable doubt. Therefore, the
conviction came to be recorded and the sentence, as
detailed supra, was awarded.
7.Number of arguments on facts, were raised
before the learned Sessions Judge as is seen from the
impugned judgement. It was submitted that there was
delay in lodging the FIR. However, according to the
learned Sessions Judge, there was no delay and
whatever delay was there, the same was explained.
Next of the circumstance, according to the learned
Sessions Judge, was that no enmity is suggested
between the prosecutrix and the accused and simply it
was stated that a false allegation is made against
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him. However, in view of the corroboration to the
statement of the prosecutrix, the conviction came to
be recorded.
8.The learned counsel for the appellant
- Mr. K.P. Chaware exclusively made two submissions.
While recording the statement of the prosecutrix, who
was completely hearing and speech challenged, her
gestures were not recorded by the learned Sessions
Judge. He, therefore, submitted that there was no
fair trial, hence, the present case is required to be
remanded back to the learned Sessions Judge for
enquiry afresh to the above extent. Secondly, he
submitted that the evidence recorded would clearly
show that PW2 Sunita Pazare is not an independent
interpreter but had taken active part in the
investigation and as such, the trial is vitiated.
9.On the other hand, the learned A.P.P.
submitted that there is no necessity to record the
signs of the prosecutrix and in the circumstances, he
submitted that the appeal be dismissed.
10.On the basis of this material, following
points arise for my determination:
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(I)Whether the case deserves to be
remanded to the learned trial court for
enquiry afresh ?
AND
II) If the answer to point No. (I) is
in the negative, then whether the
respondent/prosecution has proved that
the present appellant has committed
forcible sexual intercourse with the
prosecutrix ?
My finding to the point No. (I) is in the negative
and to the point No. (II) in the affirmative. The
appeal is, therefore, dismissed for the reasons to
follow.
REASONS :
11.The facts on record fully proved that the
appellant has committed forcible sexual intercourse
with the prosecutrix. PW1 - complainant lady had
deposed that upon hearing the fact that her sister-
in-law - the prosecutrix was weeping in her house,
she visited her to whom by signs, the prosecutrix
gave the narration as detailed above. She also
pointed towards the accused as the preparator of the
(9) Cri.Appeal681-11
crime. Thus, there was an immediate statement of the
prosecutrix to her sister-in-law. During cross-
examination, no suggestion was even given to the
complainant lady that no such statement was made by
the prosecutrix or the accused was not presented
before her upon which she pointed towards him. Only
few omissions as to where the prosecutrix actually
resided and regarding the time taken by the
prosecutrix to the Police Station, were put to her.
12.So far as PW2 expert Sunita Pazare coupled
with PW3 - the prosecurtix is concerned, a sole
suggestion was given that the incident did not take
place and she did depose falsely. As against this,
there is voluminous evidence on record like the
statement made by the prosecutrix through the
interpreter, deposition of the complainant lady
supported by the medical evidence of finding injury
over the cheek and swelling of libia minora, libia
majora, vulva of the prosecutrix on the next day of
the incident.
13.Each and every argument on facts raised by
the learned defence counsel in the trial court was
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dealt with by the learned Sessions Juge and there is
no reason to differ from the same.
14.The only questions, therefore, would be that
as to whether the impugned order is liable to be
quashed and the case is liable to be remanded to the
learned Sessions Judge for the reason that he failed
to record the signs or gestures made by the
prosecutrix which were interpreted by the interpreter
and whether the interpreter has any interest in the
prosecution prejudicial to the fair trial.
15.The controversy as regards first of the
questions revolves around the provisions of Section
119 of the Indian Evidence Act, 1872, which reads as
under :-
"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
evidences."
Mr. Chaware, learned counsel for the
16.
(11) Cri.Appeal681-11
appellant, heavily relied on the decisions in the
following cases :-
(i) Ah Soi vs. King Emperor (A.I.R. 1926 Calcutta 922)(ii) Darshan Singh alias Darshan Lal vs. The State of Rajasthan (2006 Cri LJ 3008)(iii)Kumbhar Musa Alib vs. State of Gujrat
(A.I.R. 1966 Guj. 101)
17.In the case of "Ah Soi vs. King
Emperor" (cited supra), a Chinaman, namely, Lewis was
an interpreter in the case for an eye witness who,
according to the prosecution, had seen the incident
of murder. The facts would show that the interpreter
on the next day of the incident went to the Assistant
Manager of the Mill where the deceased and accused
were working and reported him the death. Thereafter,
the room of the accused was searched to which the
said interpreter was one of the witness. This very
Chinaman Lewis stood as an interpreter for the eye
witness. He himself also independently deposed before
the Sessions Court regarding his reporting to the
Assistant Manager of the factory regarding the
murder, then his remaining present at the time of
(12) Cri.Appeal681-11
visiting the room of the accused. This very
interpreter when was cross-examined on behalf of the
accused, this very interpreter interpreted his own
version to the accused in vernacular.
18.In these circumstances, the Division Bench
of the Calcutta High Court had found that the accused
was more or less at the mercy of the interpreter.
Interpreter's conduct would show that he was ready
and willing to give evidence in the Sessions Court on
behalf of the prosecution and he himself interpreted
his own evidence alongwith other evidence to the
accused in vernacular. Thus, the interpreter was not
merely interpreter of the disabled witness but also
of all the other witnesses for interpreting the same
in vernacular. He was active throughout the
investigation and even before investigation, like
reporting to the Assistant Manager of the factory
about the incident. Under all these circumstances,
the High Court has observed that the Sessions Court
should not have chosen the very same person as an
interpreter.
19.In the present case, PW2 Sunita Pazare is
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resident of Chalisgaon. She is a teacher working in
the school of hearing and speech challenged children
for a period of five years preceding the present
incident. She attended the Police Station upon the
direction of the police only to interpret the
gestures made by the prosecutrix. Further, in order
to interpret her gestures at the spot of occurrence,
she was taken there where she again interpreted the
gestures to the Investigating Officer. She lateron
interpreted the signs of the prosecutrix in court.
This is the only role which has been played by the
said expert in the present case.
20.By no stretch of imagination it can be
called that PW2 Sunita Pazare had played any active
part in the investigation as found in the case of
"Ah Soi" (cited supra) by the Calcutta High Court.
The interpreter in that case was not only a witness
to certain facts of the case but has also interpreted
the versions of other witnesses in vernacular to the
accused and he himself was cross-examined by the
accused and the same was also interpreted by him
again to the accused. In those circumstances, the
Calcutta High Court severely condemned the procedure
(14) Cri.Appeal681-11
adopted by the learned Sessions Judge and directed
for re-trial. The facts in the present case detailed
supra, however, would show that the interpreter had
no interest in the prosecution case and she acted
merely on the direction either of the Investigating
Officer or of the learned Sessions Judge, being a
teacher in the school where hearing and speech
impaired children take education.
21.In the case of "Darshan Singh alias Darshan
Lal vs. the State of Rajasthan" (cited supra), PW16
Geeta Devi - a speech and hearing impaired lady - was
examined in court in presence of her father Jaswant
Singh. Her gestures were not recorded by the learned
Sessions Judge. The father had also taken part in
the investigation. Said Geeta Devi (PW16) by signs
made clear that she would not answer any questions
put in cross-examination. It was found that the
statement of Geeta Devi was also recorded with the
help of her father i.e. PW1 Jaswant Singh.
22.In the case of "Kumbhar Musa Alib vs. State
of Gujrat"(cited supra), without giving any
reasoning, the learned Judge of the Gujrat High Court
(15) Cri.Appeal681-11
observed that if evidence of "a deaf and dumb
witness" is to be recorded under section 119 of the
Evidence Act, there must be a record of signs and not
merely the interpretation of signs.
23.As regards the necessity to record the
gestures or signs of the witness, Section 119 of the
Indian Evidence Act only prescribes that the sign
should be made by such a witness in open court. The
learned Judge of the Gujrat High Court in case of
"Kumbhar Musa Alib" (cited supra), however, without
forwarding any reason, has observed thus :
"If evidence is recorded under that section
(Section 119 of the Indian Evidence Act),
there must be a record of signs."
24.One can understand if the signs or gestures
of such a disabled witness are interpreted by a
layman or the judge himself. Then the signs should
be recorded by the Sessions Judge so that the
appellate court would be able to find out as to
whether correct interpretation of the signs was made
by the non-expert.
(16) Cri.Appeal681-11
25.In the present case before us, the expertise
of PW2 Sunita Pazare was never challenged in the
trial court. No suggestions were made challenging
her competence in this regard. Further, as already
found, the interpreter had no interest in the trial.
In the circumstances, the arguments advanced by Mr.
Chaware, learned advocate, cannot be accepted in this
regard.
26.On facts, we have already found that the
statements of the prosecutrix as interpreted by the
interpreter is fully corroborated by the immediate
medical examination coupled with the immediate
statement made by the prosecutrix to the complainant.
27.In view of the above circumstances, the
offence is proved beyond reasonable doubt as has been
observed by the learned Sessions Judge.
28.In the result, the appeal fails. It is,
therefore, dismissed.
Sd/-
[ M.T. JOSHI ]
JUDGE
NPJ/Criapl681-11
2 issues framed by the court
Whether the case deserves to be remanded to the trial court for re-enquiry due to failure to record gestures or lack of independence of the interpreter?
Whether the prosecution has proved beyond reasonable doubt that the appellant committed forcible sexual intercourse with the prosecutrix?
Colour shows how this judgement treated each authority
Ah Soi vs. King EmperorReferred¶86
Ah Soi vs. King Emperor (A.I.R. 1926 Calcutta 922) · Who else cites this
Darshan Singh alias Darshan Lal vs. The State of RajasthanReferred¶87
Darshan Singh alias Darshan Lal vs. The State of Rajasthan (2006 Cri LJ 3008) · Who else cites this
Kumbhar Musa Alib vs. State of GujratReferred¶88
Kumbhar Musa Alib vs. State of Gujrat (A.I.R. 1966 Guj. 101) · Who else cites this
Ramesh Hilal Ahire
The State of Maharashtra, through Bayjabai w/o Hiraman Ahire
Bayjabai Hiraman Ahire
M.T. Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court