Madras High Court
Ravichandran vs State Represented By on 22 September, 2022
Crl.A.No.65 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 22.09.2022
CORAM
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.A.No.65 of 2020
and Crl.M.P.No.1327 of 2020
Ravichandran .. Appellant
Vs.
State Represented by,
The Inspector of police,
AWPS, Tiruppur,
Tiruppur District.
.. Respondent
Prayer:Criminal Appeal filed under Section 374 (2) Cr.P.C. to set aside the
judgement order passed by the Magalir Neethimandram (Fast Track Mahila
Court) Tiruppur in S.C.No.158 of 2016 vide his order dated 21.01.2020.
For Appellant : Mr.R.Sukumaran
for Mr.S.Patrick
For Respondent :Mr.S.Balaji
Govt. Advocate (Crl. Side)
Page 1 of 22
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JUDGMENT
The appeal has been filed against the judgement of the learned
Sessions Judge, Tiruppur, passed in S.C.No.158 of 2016 dated 21.01.2020.
The appellant along with his wife was tried for the offence under Section
307 and 502(ii) of IPC.
2.The Trial Court acquitted the appellant's wife for the offences
charged against her. The appellant was found guilty for the offences under
Section 307 and 506(ii) IPC. The appellant was sentenced to 10 years R.I
and directed to pay a fine of Rs.2000/- for the offence under Section 307
IPC and sentence to undergo 5 years R.I for the offence under Section
506(ii) IPC.
3.The case of the prosecution is that P.W.1, victim is deaf and dumb
and when she was five years old, her parents took her to the appellant for
treating her by adopting meditation techniques and to cure her illness; that
the appellant and his wife took a sum of Rs.1,89,000/- for the purpose of the
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treatment and demanded further sum without giving proper treatment; that
they caused harm to P.W.1, victim by attacking her with weapons and had
poked her all over the body with needles and caused injuries on the head;
that the appellant and his wife also attacked the private parts of the P.W.1,
victim.
4.The case was registered in Crime No.132 of 2005 for the offences
under Section 384 and 307 of IPC on the file of the respondent police, on
the complaint given by the P.W.2, father of the victim. P.W.5, the Sub
Inspector of Police, registered the FIR and P.W.6, Investigation Officer, took
up the investigation. The charge sheet was filed before the learned Judicial
Magistrate No.1, Tiruppur in P.R.C.No.1 of 2008. Thereafter, on committal
by the learned Judicial Magistrate No.1, Tiruppur, the case was tried by the
learned Sessions Judge, Tiruppur, in S.C.No.158 of 2016. The prosecution
examined P.W.1, victim, P.W.2, the father of the victim, P.W.3, Mahazer
witness, P.W.4, Dr.Kesavamoorthy, who treated the victim, P.W.5, the Sub
Inspector of Police who registered the FIR and P.W.6, Investigation Officer
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and marked Exs.P.1 to P.6, to establish its case. The learned Sessions Judge
found that the prosecution had established its case beyond reasonable doubt
and convicted the appellant for the offences under Section 307 and 506(ii)
I.P.C.
5.Heard, Mr.K.Sukumaran, learned counsel for the appellant and
Mr.S.Balaji, learned Government Advocate (Crl. Side) for the respondent.
6.The learned counsel for the appellant submitted that the prosecution
has not established its case and admittedly, P.W.1, victim suffered from
speech and hearing impairment. Her deposition does not disclose as to how
and in what manner her evidence was recorded by the trial Court. The Trial
Court had not followed the procedure prescribed under Section 119 of the
Indian Evidence Act. The learned counsel further submitted that in any
event, the complaint by P.W.2, the father of the victim, is hearsay and could
not have been the basis for initiating the prosecution. The Investigating
Officer, P.W.6 has admitted in his evidence that he recorded the 161
statement of the victim only by the gestures shown by her and further,
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Crl.A.No.65 of 2020
admitted that he had not recorded the said fact in the 161 statement. The
Investigation Officer has further admitted that none of the allegations made
by P.W.2, father of the victim in the FIR was confirmed by P.W.1, victim
when she was examined by her. The learned counsel further submitted that
the evidence of P.W.2, father of the victim, confirm that the victim is deaf
and dumb. P.W.4, the Doctor, did not treat P.W.1, the victim for the alleged
injuries suffered by her. The Doctor would admit in the cross examination
that P.W.1, the victim was brought to him only for the treatment of puss
oozing out from the ear of the victim and not for the injuries suffered by her.
P.W.4, the Doctor would also admit that he did not ask the victim as to how
the injuries was caused to her because she could not hear. Therefore, the
learned counsel submitted that for all the above infirmities, the trial Court
ought not to have convicted the appellant for the offences alleged against
him.
7. Mr.Balaji, the learned Government Advocate (Crl. Side) submitted
that the victim was aged about 5 years at the time of the occurrence and she
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Crl.A.No.65 of 2020
had suffered injuries as could be seen from the evidence of P.W.4, the
Doctor. The victim's father, P.W.2 had given the complaint immediately,
after the occurrence. The victim was residing only with the appellant and his
wife and therefore, the appellant and his wife were responsible for causing
injuries on the victim. The appellant also did not treat the victim, P.W.1 in a
professional manner. The evidence of P.W.1, P.W.2 and P.W.4 are cogent and
establishes the fact that the appellant is guilty of the offences charged
against him. The Trial Court has rightly convicted the appellant for the
offences charged against him.
8.I have given my anxious consideration to the submissions and
evidences on record. The charge as against the appellant is that he along
with his wife caused injury on the head and other parts of the body
including the private parts of the victim who suffered from speech and
hearing impairment by using weapons and also poked the victim with
needles besides causing harm to her by using a cat to attack her.
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9.The charge and the evidence reveals that the vicim suffered from
speech and hearing impairment. In such circumstances, the record of
evidence of the deposition PW.1, does not reveal as to how and in what
manner her evidence was recorded by the Court. Section 119 of the Indian
Evidence Act has not been complied by the trial Court. However, even
assuming that the deposition of P.W.1 was recorded as mandated under the
Indian Evidence Act, I find that the allegations made by the P.W.1 in her
deposition is completely contrary to the charge. We may note here, that
when P.W.1 was examined in Court, she was 19. P.W.1 has not stated about
the alleged attack on her private parts and attack by using of dangerous
weapons and poking by needles. On the other hand, she had stated that she
was slapped, beaten by wooden logs and was not given proper food and
proper place to sleep. Further, the appellant harmed her by using a cat. The
reading of the evidence discloses that the evidence is more of a perception
of a five year old girl. The deposition besides being different from the
charge and the original complaint also appears to be improbable and
opposed to common-sense. P.W.2 who is the father of the victim has
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admitted in his evidence that he had never visited P.W.1 when she was
living with the appellant and his wife. Therefore, it is not his case that he
was a witness to the alleged occurrences relating to the harm caused by the
victim. The relevant portion of the deposition of P.W.2 which reveals that
P.W.1 could not speak and P.W.2 gathered information from her only on the
basis of gestures made by her:
'' vd; kfs; fht;ahtpw;F gpwtpapypUe;J fhJk;
nfl;fhJ. tha[k; ngr ,ayhJ/ mjdhy; mts; 2?1-2 taJ
FHe;ijahf ,Ue;jnghJ nfhit. tpf;uk; cwh!;gpl;lypy;
itj;J vd; kfSf;F mWit rpfpr;ir bra;njhk;/
rpfpr;irf;F gpd;dpl;L vd; kfs; Xustpw;F ngr
Muk;gpj;jhs;”
'' vd; kfSf;F $hil K:ykhf nfl;L mts; brhd;d
tptu';fis bjhpe;J bfhz;nld;/ ,e;j tptuj;ij nghyP!;
tprhuizapy; ehd; brhy;ytpy;iy vd;why; rhpay;y”
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10.P.W.4, the Doctor also would admit that he did not enquire from
P.W.1, victim as to how the injury was caused to her because, the victim
could not hear. He would further admit in the cross examination that P.W.2
brought the victim, P.W.1 for treatment of puss in her ear and he did not
treat her for the injuries allegedly suffered by her. Further, P.W.6 would
admit in the cross-examination that the victim did not support most of the
allegation made in the complaint of P.W.2, during his interrogation. That
apart, he had recorded the 161 statement with the assistance of an interpreter
who was not examined in Court.
11. Besides the above infirmities in the deposition of the witness,
which makes them unreliable, we may note that the trial Court has not
complied with the mandatory provision of Section 119 of the Indian
Evidence Act. Admittedly, P.W.1, victim was unable to speak. The relevant
portion of the charge which confirms that reads as follows:
'' ,t;tHf;fpy; ghjpf;fg;gl;l rpWkp fhtpah thjp ky;ypfhh;
$Pdpd; kfs; vd;Wk;. me;j rpWkp tha; ngr Koahjth;
vd;Wk;. .................''
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The relevant portion of P.W.6 also confirms the fact that P.W.1 suffered from
speech and hearing impairment:
'' 13/12/2005?k; njjp ghjpf;fg;gl;l rpWkp fhJ
nfshj kw;Wk; tha; ngrKoahj rpWkp vd;gjhy; jpUg;g{h;
fhJ nfshnjhh; gs;sp Kjy;th; mth;fSf;F
tpz;zg;gk; bfhLj;J nkw;go gs;sp Mrphpah; rpj;uh
K:yk; ghjpf;fg;gl;l rpWkpia tprhhpj;J thf;FK:yk; gjpt[
bra;njd;”
''fhJ nfl;fhj kw;Wk; tha; rhpahf ngr Koahj
xU rpWkpia ehd; vt;thW 11/12/2005?k; njjp
tprhhpj;njd; vd;why; mth; irif K:ykhf brhd;d
tptu';fis ehd; thf;FK:ykhf gjpt[ bra;njd;/ ,e;j
tptuj;ij ehd; gjpt[ bra;j 161 thf;FK:yj;jpy;
Fwpg;gpl;L brhy;ytpyi
; y
'' 13/12/2005?k; njjp fhJ nfshjth; kw;Wk; tha;
ngr Koahjth;fs; gapYk; gs;sp Mrphpaiu ehd;
tprhhpj;Js;nsd; vd;why; rhpjhd;/ ehd; ,e;j tHf;fpy;
nkw;go gs;sp Mrphpaiu vJt[k; tprhhpf;ftpy;iy vd;Wk;.
tprhhpj;jjhf thf;FK:yk; gjpt[ bra;Js;nsd; vd;why;
rhpay;y”; .
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Thus, the trial Court ought to have followed the mandate under
Section 119 of the Indian Evidence Act.
12. As per Section 119 of the Indian Evidence Act, if the victim
cannot speak he/she can may give evidence in any manner which can make
it intelligible, as by writing or by signs made in open Court. The Trial Court
has not recorded as to whether her evidence was made in writing or by
signs. The proviso to Section 119 of Indian Evidence Act stipulates that if
the witness is unable to communicate verbally, the Court shall take the
assistance of the interpreter or a special educator in recording the statement
and such statement shall be video-graphed.
13.The Hon'ble Supreme Court in State of Rajasthan vs. Darshan
Singh alias Darshan lal reported in (2012) 5 SCC 789 while considering
Section 119 of the Indian Evidence Act prior to the insertion of the proviso
in the year 2013 held as follows:
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''26. .........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.
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
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any interest in the case and he should be administered
oath.''
14. This Court in Mariyadoss vs. State by Inspector of Police
reported in 2014 (2) MWN Cr. (321): 2014 SCC Online Mad 1862
considered Section 119 of the Indian Evidence Act with the proviso and
held as follows:
12. Section 119 of the Evidence Act as amended
by the Parliament with effect from 15.3.2013 reads as
under:
“119. 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:
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.”
13. The Madras High Court has issued a
circular in R.O.C. No. 1729/2010/RR, dated 2.6.2010
to all the Subordinate Courts, containing a list of
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Advocates, who are trained to provide assistance to
the Court for recording the evidence of deaf and dumb
witnesses. This list has been prepared for all the
Districts in the State and the mobile numbers of the
Advocates are also given. This R.O.C. was issued
pursuant to the direction by this Court on 30.11.2009
in W.P.(MD) No. 5802 of 2006. Apart from the names
of the Advocates, the list also contains the addresses
of Special Schools for deaf and dumb in Tamil Nadu
from where the Courts can requisition the service of
teachers for this purpose. As regards the expenses for
videographing the evidence of a dumb witness, it
should be defrayed from the contingent fund. The
Judicial Officer, who is vested with contingent fund in
a district, shall make available necessary funds for
videographing when a request is made by a Presiding
Officer of a Court under his administrative control.
14. During my informal discussions with some
Trial Court Judges about the viability of
videographing the evidence of dumb witnesses and
videographing the confession statements under
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Section 164, Cr.P.C., they expressed a very genuine
apprehension that the videographer, who would have
it in his system, may knowingly or unknowingly share
it with third parties, in which event, it may even get
uploaded in online platforms and portals like You-
tube and will be a great injustice and embarrassment
to the witness. I gave my anxious consideration to
these possibilities and I felt that if an Affidavit of
Undertaking is obtained from the videographer to the
effect that he will not disclose the proceedings to
anybody, will maintain secrecy and will also not
retain a copy of the proceedings in any form or
transmit or publish the recordings, it can to some
extent be a deterrent. Therefore, Trial Courts should
obtain an Undertaking Affidavit from the
videographer as aforesaid and make it part and
parcel of the Court records so that action can be taken
against the videographer, if he violates the
undertaking.
15. One may note that though the main part of Section 119 of the
Indian Evidence Act speaks about witness who is unable to speak, the
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proviso that was incorporated in the year 2013 states about a witness who is
unable to communicate verbally. As per section 119, if the witness is unable
to speak, he may give evidence by writing or by signs. But, such writing
must be written and the signs made in open Court and the evidence so given
shall be deemed to be oral evidence. Since the language employed in the
main part of the Section and in the proviso are different, they do not
obviously convey the same meaning. A person can verbally communicate
even if he is unable to speak. The Black's Law dictionary defines '' Verbal,
adj.(15c) 1. Of, relating to, or expressed in words''. Thus verbal
communication in the context of Section 119 is by words in writing.
Therefore, the proviso is applicable only to such category of persons who
are unable to speak and unable to verbally communicate through writing.
Therefore, it follows that it applies only to persons who give evidence by
signs.
16. From the above discussion and the decisions cited above,
we can sum up the principles relating to examination of witnesses who are
unable to speak under Section 119 of the Indian Evidence Act, as follows:
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a. The endeavour of the Court must be to record the evidence, by
giving questions in writing and seeking answers in writing, if the witness is
able to read and write. Only if the witness is unable to read and write, the
courts should record the evidence by signs.
b. If the evidence is recorded by signs, the view of the Courts, (prior
to amendment) was that the signs must be recorded as such and they should
not be any interpretation of the signs. The Hon'ble Apex court, in Darshan
Singh case cited supra held that the interpreter is necessary while recording
the evidence of witnesses who give evidence by signs. The legislature
thought it fit to make it mandatory for the Courts to take the assistance of an
interpreter and videograph such evidence, in line with the pronouncements
of the Hon'ble Apex court.
c. The meaning of word ''unable to communicate verbally'' in the
proviso to Section 119 of the Indian Evidence Act means unable to
communicate in writing and can communicate only through signs. It is for
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those category of persons who are unable to speak and can't communicate in
writing that the proviso would apply. As per the proviso the Courts shall
take the assistance of the interpreter and such recording of such statement
shall be videographed. This is a mandate that the Courts have to strictly
comply that. This Court in Mariyadoss cited supra held that the trial Courts
should get an undertaking affidavit from the videographer that he will not
disclose the proceedings to anybody and that he will not retain a copy of the
proceedings. The relevant portion has been extracted above.
17.In the Instant case the mandatory provisions under Section 119 of
the Indian Evidence Act has not been complied by the trial Court. Since the
mandatory procedure to record the deposition of P.W.1, victim has not been
complied with, it is highly unsafe to rely upon the deposition as recorded by
the trial Court. It is needless to mention that the safeguards have been
incorporated in the act only to ensure the authenticity of the recording of
the statement of such witnesses. The trial Court in its judgement at
Paragraph 24 has stated that the injuries were shown by the victim by
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gestures. That being so, this Court is unable to appreciate as to how the trial
Court could have interpreted the gestures, in the absence of an interpreter or
a special educator. P.W.6, the Investigating Officer has stated in her
evidence that she took the help of an interpreter namely the Principal of
Tiruppur Deaf and Dumb School, to record the statement of the victim.
However, for reasons best known to the prosecution that interpreter was not
examined by the prosecution.
18. I am of the opinion that, in view of the violation of the mandatory
procedure under Section 119 of the Indian Evidence Act and in the absence
of any record in the deposition to show as to how and in what manner, the
evidence of P.W.1 was recorded P.W.1's deposition cannot be relied upon.
That apart, even assuming that the evidence of P.W.1, victim was recorded
in a proper manner her evidence does not inspire confidence for the reasons
stated earlier. The evidence discloses that P.W.2 had a grudge against the
appellant for charging exorbitant fees for the treatment and not giving
proper treatment. It is highly unsafe to render finding of guilt on the basis of
the evidence on record.
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19.For the above said reasons, the judgement of the trial Court
deserves to be set aside and the appellant is acquitted and is set at liberty.
The bail bond if any executed by the appellant/accused shall stands
cancelled.
In the result, this Criminal Appeal is allowed. Consequently,
connected miscellaneous petition is closed.
22.09.2022
Index: Yes/No
vsn
To
1.The Magalir Neethimandram (Fast Track Mahila Court) Tiruppur
2.The Sessions Judge, Tiruppur
3.The Public Prosecutor, High Court, Madras.
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SUNDER MOHAN.J,
vsn
Crl.A.No.65 of 2020
and Crl.M.P.No.1327 of 2020
22.09.2022
https://www.mhc.tn.gov.in/judis
