Allowed

Chhagan Lal Sahu v. State of Chhattisgarh

Chhattisgarh HC17 Nov 2024CRA/1041/2019

Case brief

AI extract

What is this about?

Appeal against conviction for abduction and rape of a deaf and dumb woman. The High Court found the victim's statement was recorded only as interpretation of signs without recording the signs or videography, violating Section 119 Evidence Act; combined with negative medical/FSL evidence and delayed FIR, it acquitted the appellant.

What did the court decide?

Conviction under Sections 366 and 376 IPC and sentence set aside; appellant acquitted on benefit of doubt and directed to be released from jail forthwith.

Chhagan Lal Sahu Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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Digitally signed
by AKHILESH
AKHILESH BEOHAR
BEOHAR Date:2024.11.20
17:17:09
+0530

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2024:CGHC:44743-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1041 of 2019

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Chhagan Lal Sahu, S/o Shri Firanta Sahu, aged about 47 Years, R/o Lodhipara, Mohan Nagar, District Durg, Chhattisgarh.

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...Appellant

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versus

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State of Chhattisgarh, Through Station House Officer, Police Station Mohan Nagar, District Durg, Chhattisgarh.

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... Respondent

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For Appellant : Mr. C.R. Sahu, Advocate. For Respondent : Mr. Sharad Mishra, Panel Lawyer.

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Hon'ble Shri Sanjay K. Agrawal and

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Hon'ble Shri Radhakishan Agrawal, JJ.

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Judgment on Board (18.11.2024)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 14.05.2019 passed in Sessions Trial No.119/2018 by the Additional Sessions Judge, (F.T.C.), Durg, C.G. by which the appellant stands convicted and

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sentenced as under:-

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Conviction	Sentence
Under Section 366 read with	Rigorous Imprisonment for
Section 34 of Indian Penal	five years and fine of Rs.500/-, in default of

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Code (for short 'IPC')	payment of fine amount to undergo additional rigorous imprisonment for two months
Under Section 376(?k) of IPC	Rigorous Imprisonment for
	twenty years and fine of
	Rs.500/-, in default of
	payment of fine amount to
	undergo additional rigorous
	imprisonment for two months

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(Both sentences were directed to run concurrently)

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Case of the prosecution, in brief, is that on 22.04.2018, present appellant and the absconded co-accused namely Deepak Kumar Mahar, abducted the victim (PW-4), who is a deaf and dumb lady, aged about 25 years and committed forcible sexual intercourse with her and thereby committed the aforesaid offences. Further case of the prosecution is that on 22.04.2018, victim (PW-4) went missing from the company of her husband- PW-5 Rajendra Yadav, pursuant to which, PW-5 Rajendra Yadav lodged a missing report which was registered vide Ex.P-6 and as per the prosecution case, the victim was recovered on 02.05.2018. Thereafter, the matter was reported to the police by PW-5 Rajendra Yadav, consequent to which, FIR (Ex.P7A) was registered against the appellant and the absconded coaccused Deepak Kumar Mahar. During the course of investigation, spot map was prepared vide Ex.P-1. Consent letters (Exs.P-10 & 11) of victim and her husband (PW-5 Rajendra Yadav) were obtained and victim was sent for medical examination on 09.08.2018 where Dr. Vinita Dhruve (PW-8) examined the victim and did not notice any internal or external injury over the person of the victim and gave her

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MLC report vide Ex.P-5. FSL report vide Ex.P-19 was also obtained where seized slide of victim was reported to be negative.

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After due investigation, appellant and absconded co-accused were charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, however, the present appellant abjured his guilt and entered into defence by stating that he has not committed the aforesaid offences.

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In order to bring home the offence, prosecution has examined as many as 09 witnesses and brought on record 19 documents. The defence has examined none and exhibited only one document i.e. Ex.D-1.

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The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellant as mentioned in para 1 of this judgment against which the present appeal has been preferred by the appellant.

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Learned counsel for the appellant submits that the trial Court is absolutely unjustified in convicting and sentencing the appellant for the aforesaid offences. He further submits that though the victim is a deaf and dumb lady, but her statement has not been recorded complying Section 119 of the Indian Evidence Act, 1872 (for short, 'the Evidence Act'). He also submits that although the victim was recovered on 02.05.2018 and was handed over to PW-5 Rajendra Yadav, but the FIR (Ex.P-7A) was registered on 25.06.2018 and there is no evidence on record to show that any investigation was going on

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in between from 02.05.2018 to 25.06.2018 and that medical evidence in the form of MLC report (Ex.P-5) also does not support the case of the prosecution. Besides this, FSL report (Ex.-19), which has been brought on record, also found to be negative. Therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the said charges on the basis of benefit of doubt.

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Learned counsel for the State supports the impugned judgment and submits that the prosecution has brought home the offence against the appellant and has proved the case beyond reasonable doubt and thus, the appellant has rightly been convicted and sentenced for the aforesaid offences. Therefore, the appeal deserves to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The appellant has been charged for the offence under Sections 366 & 376(?k) of IPC and convicted and sentenced only on the basis of statement of PW-4 victim, who is a deaf and dumb lady and before the Court, she was examined with the help of Interpreter namely Shanta N. Acharya, in which, victim has supported the case of the prosecution. However, in the cross-examination, victim could not name the appellant herein, but by indication she has stated that it is the appellant and absconded co-accused who committed the aforesaid offences. Further, the victim was administered oath by the Court and upon the sign language and the language of interpreter

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Smt. Shanta N. Acharya (not examined) in Hindi, statement of the victim was recorded.

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Section 118 of the Evidence Act deals with the competency of a witness. By virtue of this provision, all persons are competent to testify unless the Court considers that because of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind they are prevented from understanding questions put to them or from giving rational answers. All grounds of incompetency have been swept away by this provision. Thus, the competency of witnesses is the rule and their incompetency is an exception. The sole test is whether the witness has sufficient intelligence to depose or whether he can appreciate the duty of speaking truth.

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Section 119 of the Evidence Act provides for witnesses who are unable to communicate verbally and states as under:

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“ 119. Witness unable to communicate verbally. —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:

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Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.”

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The aforesaid provision clearly provides that 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

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interpreter. The Supreme Court in the matter of State of Rajasthan v. Darshan Singh alias Darshan Lal¹ has clearly held that in case the witness can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. It was further held that the law required that there must be a record of signs and not the interpretation of signs and also held as under: -

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“18. … 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.

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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.

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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.

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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.

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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

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1 AIR 2012 SC 1973

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reply the same in writing.

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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, acquitted the respondent.”

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From the aforesaid decision, it is quite clear that a dumb witness must be administered oath by appropriate means or with the help of the assistance of the interpreter and there must be record of signs and not interpretation of signs and interpreter must not be the interested person and such statement must be video-graphed.

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Reverting to the statement of the victim (PW-4), she has been examined to convict the appellant herein. She being a deaf and dumb witness, her statement has been interpreted by Smt. Shanta N. Acharya (not examined). A careful perusal of the statement of PW-4 victim shows that she has been administered oath and only on the basis of sign language, her statement has been recorded. The learned trial Court did not record the signs made by the victim in answer to the questions put to her and also the manner in which the victim was made to understand by the interpreter. The learned trial Court appears to have recorded only the interpretation of signs/meaning of such signs which in our considered opinion is complete non-compliance of the provisions contained in Section 119 of the Evidence Act and the principles of law laid down by the Supreme Court in Darshan Singh's case (supra), in which it has already been held by their Lordships that there must be a record of signs. Her statement has also not been video-graphed as per the proviso to Section 119 of the Evidence Act. Thus, the record of such signs made by the victim (PW-4), deaf and

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dumb witness, must have been maintained by the learned trial Court as held by the Supreme Court in Darshan Singh's case (supra). In absence of such record, the statement of the victim (PW-4) alone is not worth reliance for conviction of the accused for an offence of gang rape. This apart, Dr. Vinita Dhruve (PW-8) who medically examined the victim did not notice any internal or external injury over the person of the victim and as per FSL report (Ex.P-19) also, no human sperm has been found on the seized slide of the victim. Furthermore, as per the statement of PW-9 Smt. Beby Nanda (ASI), victim was recovered on 02.05.2018, but the FIR (Ex.P-7A) has been lodged by PW-5 Rajendra Yadav on 25.06.2018 and that PW-9 Smt. Beby Nanda (ASI) has clearly stated that there is no document on record to show that any investigation was going on in between from 24.04.2018 i.e. date of incident to 25.06.2018 i.e. date of lodging of FIR. As such, no explanation has been given by the prosecution for delay in lodging the FIR (Ex.P-7A), more particularly, by PW-5 Rajendra Yadav, husband of the victim, who used to understand the sign language of the victim (PW-4). Apart from that, Smt. Shanta N. Acharya, Interpreter, has also not been examined on behalf of the prosecution.

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In that view of the matter, we are of the considered opinion that the appellant is entitled for acquittal and the learned trial Court is totally unjustified in convicting and sentencing the appellant for offences under Sections 366 & 376( ?k) of IPC. Accordingly, the impugned judgment of conviction and order of sentence dated 14.05.2019, passed by the learned trial Court is liable to be set-aside. However, it is made clear that this Court has not expressed any opinion on the role of

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another absconded co-accused- Deepak Kumar Mahar and the finding recorded by this Court, in above paragraphs, is only for the purpose of deciding the appeal preferred by the present appellant herein.

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Consequently, the conviction of the appellant for offence punishable under Sections 366 & 376( ?k) of IPC as well as the sentence imposed upon him by the learned trial Court is hereby set-aside. He is acquitted of the said charges leveled against him on the basis of benefit of doubt. The appellant is reported to be in jail, we direct that he be released from jail forthwith, if not required in any other matter/case.

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In the result, the criminal appeal is allowed.

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Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court forthwith for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence.

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Akhilesh

Chhagan Lal Sahu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Chhagan Lal Sahu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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