Madhya Pradesh High Court
Ganesh Alias Surjeet Dahiya vs The State Of Madhya Pradesh on 17 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 CRA-8211-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 8211 of 2018
(GANESH ALIAS SURJEET DAHIYA AND OTHERS Vs THE STATE OF MADHYA PRADESH )
Dated : 17-01-2025
Shri V.V. Rajendra Daniel - Advocate for the appellants.
Shri Akshay Namdeo - Government Advocate for the State of M.P.
Heard on I.A. No.5165/2021 third application under Section 389(1) of
the Cr.P.C for suspension of sentence and grant of bail to appellant no.1-
Ganesh @ Surjeet Dahiya arising out of judgment dated 14.9.2018 delivered
in Special Case No.54 of 2016 by Special Judge (Protection of Children
from Sexual Offences Act 2012), Katni.
The appellant no.1 has been convicted and sentenced for the offence
punishable under Section 376 -2 (dha) of IPC r/w Section 5 (tha) and 6
of Protection of Children from Sexual Offences Act 2012 to undergo RI for
Life with fine of Rs.1000/-, under Section 366 of IPC to undergo RI for ten
years with fine of Rs.1000/-, under Section 363 of IPC to undergo RI for
seven years and under Section 323 of IPC to undergo RI for six years with
fine of Rs.1000/- with default stipulation.
Earlier I.A. No. 7143 of 2019 was dismissed for want of prosecution
vide order dated 21.6.2019 and I.A. No.15744 of 2019 was dismissed as
withdrawn on 11.12.2019.
As per prosecution story on 27.7.2018 (PW-4) lodged an FIR at P.S.
Kuthala, district Katni that she is living in Kuthala and her parents are
living at Sehora, district Jabalpur. On 16.4.2016 the complainant arrived at
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the house of her parents at Sehore alongwith her husband and a child. On
17.4.2016 she had taken her minor sister with her to Katni and on
18.4.2016 she had gone to market and when she came back, she came to
know that her minor sister, who was deaf was not present at home. hence,
report Ex.P-1 was lodged and crime was registered. After investigation
charge sheet was filed and after trial, the appellant no. 1 stood convicted as
mentioned in para -2 of this order.
Learned counsel for the appellant no. 1 submits that the appellant no.
1 has been falsely implicated on the basis of interested witness. There is no
reliable evidence. He further submits that a serious infirmity has been
committed while recording the evidence of PW-6 (the prosecutrix). On bare
perusal of her statement, it is seen that PW-6, who has signed the deposition
sheet has stated that at the time of incident, she was sixteen years of age.
There is a note attached at the the top of her deposition that prosecutrix is
able to understand the question and answer with the help of her mother,
who was present in the court with her.
It is submitted that the prosecutrix has signed the deposition sheet in
which she has deposed against the present accused.
Learned counsel for the appellant has relied on the judgment in the
case of State of Rajasthan v. Darshan Singh, (2012) 5 SCC 789 on in which it was
held as under :-
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
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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.
Learned Government Counsel opposed the prayer for suspension of
remaining jail sentence on the basis of objection. He submits that a minor
deaf girl has been raped.
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It is seen that remaining jail sentence of co- accused lady Nisha @
Bhoori Dahiya has been suspended on 20.12.2018.
It is seen that in-examination-chief questions have not been asked in
written form to a literate prosecutrix, who could understand and answer the
written questions. Perusal of the order sheet dated 20.6.2018 shows that on
that day an independent special translator Shri K.R. Jyotishi was present in
the court but evidence of the prosecutrix was not recorded through the
specialized independent person but it was recorded through her real mother
as the court has recorded that she is unable to understand question through
specialized expert but by mother but prima facie by and large mother cannot
be treated as an independent person.
The appellant no. 1 has remained in custody from 26.7.2016 till the
pronouncement of the judgement and at present he is in jail. Thus, more than
eight years have passed. Thus, suspension of sentence can be allowed in the
light of Darshan Singh (supra) .
Considering the aforesaid factual backdrop and bleak chances of final
hearing of this appeal in near future, without expressing any conclusive
opinion on the merits of the case, we deem it proper to suspend the
remaining jail sentence of appellant no.1
Accordingly, I.A. No.5165/2021 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of this appellant no.1 is hereby suspended and it is
directed that appellant no.1- Ganesh @ Surjeet Dahiya be released on bail
on his furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty
5 CRA-8211-2018
Thousand only) with one solvent surety of the like amount to the
satisfaction of the trial Court with a further direction to appear before the trial
Court, Sihora, District Jabalpur on 17th of March 2025 and also on such
other dates as may be fixed by the trial Court in this regard during the
pendency of this appeal.
Certified copy as per Rules.
(SUSHRUT ARVIND DHARMADHIKARI) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
bks
