Puran Singh @ Pintu Singh vs State Of Rajasthan
2023 Latest Caselaw 5161 Raj

[2023/RJJD/016582]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 2085/2023

Vishnu Kumar S/o Shri Brijmohan Kalal, Aged About 25 Years, R/o Baghera, 10 P 4, New Patel Nagar, Ps - Pratapnagar, District Bhilwara (Raj.) (At Present Lodged In District Jail, Bhilwara)

----Petitioner Versus State Of Rajasthan, Through P.P.

----Respondent Connected With S.B. Criminal Miscellaneous Bail Application No. 13519/2022 Puran Singh @ Pintu Singh S/o Amar Singh, Aged About 26 Years, R/o Kesarpura Police Station Bhim Dist. Rajsamand, At Present R/o As Tenant In Maheshwari Bhawan, Chandrashekhar Nagar, Police Station Pratapnagar, District Bhilwara.

(At Present Lodged In Distt. Jail, Bhilwara)

----Petitioner Versus State Of Rajasthan, Through P.P.

----Respondent

For Petitioner(s) : Mr. Mukesh Mehariya.

Mr. Rajender Singh Charan.

For Respondent(s) : Mr. Mahipal Bishnoi, P.P.

HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

Reportable 24/05/2023

The present bail applications have been filed under Section

439 Cr.P.C. The petitioners have been arrested in connection with

F.I.R. No.78/2022, registered at Police Station Pratapnagar,

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District Bhilwara, for the offences punishable under Sections

376(2)(L) IPC and Section 5(J)(2)/6, 5(K)(G)/6 of the POCSO Act.

Heard learned counsel for the petitioners and learned Public

Prosecutor. Perused the material available on record.

As per prosecution, the prosecutrix who is deaf and dumb

was subjected to sexual assault- rape by the present petitioners at

Mataji ka Kheda in the early morning near a pond. The police after

investigation arrested the petitioners in connection with the

alleged crime and filed charge sheet against them for offences

under Section 376(2)(L) IPC and Section 5(J)(2)/6, 5(K)(G)/6 of

the POCSO Act.

Learned counsel for the petitioners vehemently submitted

that the statement of the prosecutrix (P.W.7) has been recorded

before competent criminal court on 20.07.2022, in utter disregard

of provisions contained in Section 119 of the Indian Evidence Act.

Learned counsel for the petitioners submitted that since, the

statement of prosecutrix (P.W.7) has been recorded in utter

disregard to Section 119 of the Indian Evidence Act, the same are

not admissible in the eyes of law and thus, there remains no

evidence available on record connecting the present petitioners

with the alleged crime.

Learned counsel vehemently submitted that the Court in

order to enable itself to record statements of the prosecutrix

called a signs language specialist namely Vidya Sharma, however,

she shown her inability to assist the Court in the matter, as

prosecutrix who has not studied in the school established for

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students with special needs was unable to understand her signs.

Learned counsel submitted that entire statement of the

prosecutrix were recorded as per the interpretation done by her

sister Kamla and father Narayan.

Learned counsel submitted that statement of prosecutrix

(P.W.7) communicated by gestures, recorded as per the

interpretation offered by father and sister of the prosecutrix being

interested interpreters cannot be relied upon and makes the

evidence unreliable.

Lastly, learned counsel for the petitioner submitted that as

per the language used in Section 119 of Indian Evidence Act, in

case, witness is unable to communicate verbally, the Court shall

take assistance of an interpreter or a special educator in recording

the statement and such statement shall be videographed.

However, in the present case, no videography of the statement

was recorded.

Reliance was placed on the judgment of Hon'ble Supreme

Court of India in the case of Kumbhar Musa Alib Vs. State of

Gujarat reported in (1996) AIR (Gujarat) 101 and in the case

of State of Rajasthan Vs. Darshan Singh @ Darshan Lal

(Criminal Appeal No.870 of 2007), decided on 21.05.2012.

On these ground, he implored the Court to enlarge the

petitioners on bail.

Learned Public Prosecutor opposed the bail application.

Section 119 of the Indian Evidence Act, reads 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.

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 video graphed."

Admittedly, the prosecutrix is a deaf and mute person. She

communicated through gestures only. The competent criminal

court at the time of recording of her statement called a signs

language specialist to assist it in recording of the statements. The

signs language specialist, however shown her inability to do the

same. It is further evident that the statements of prosecutrix were

recorded with the help of her sister and father who are

undoubtedly interested in the present case.

Hon'ble the Supreme Court in the case of State of

Rajasthan vs. Darshan Singh @ Darshanlal reported in

(2012) 5 SCC 789 held that in case the witness is not able to

read and write, his/her 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 same

surroundings but should not have any interest in the case and he

should be administered oath.

(Emphasis supplied)

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From the perusal of the statement of prosecutrix, it appears

that learned trial court has not been videographed the gestures

made by her during the course of statements, which prima facie is

in contravention of the proviso to Section 119 of Indian Evidence

Act, 1872. Further, there is no mention as to how the gestures of

prosecutrix were interpreted by her sister and father.

Having regard to the totality of the facts and circumstances

of the case, so also the language / import of Section 119 of the

Indian Evidence Act, without expressing any opinion on the merits

of the case, this Court is inclined to enlarge the accused-

petitioners under Section 439 Cr.P.C.

This Court also finds that the petitioners' prayer for bail

cannot be deferred because the competent trial court had failed to

follow the procedure contained in Section 119 of the Indian

Evidence Act.

Accordingly, the bail applications filed under Section 439

Cr.P.C. are allowed and it is directed that petitioners Vishnu Kumar

S/o Shri Brijmohan Kalal and Vishnu Kumar S/o Shri

Brijmohan Kalal & Puran Singh @ Pintu Singh S/o Amar

Singh shall be released on bail in connection with F.I.R.

No.78/2022, registered at Police Station Pratapnagar, District

Bhilwara provided each of them executes a personal bond in a

sum of Rs.50,000/- with two sound and solvent sureties of

Rs.25,000/- each to the satisfaction of learned trial court for their

appearance before that court on each and every date of hearing

and whenever called upon to do so till the completion of the trial

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subject to satisfying the following conditions:-

a) The petitioner undertakes to comply with all directions given in

this order, and the furnishing of bail bonds by the petitioner is

acceptance of all such conditions:

b) The petitioner undertakes not to contact the complainant and

prosecutrix so also the witnesses to threaten them or exert any

pressure

d) The petitioner shall not hamper the investigation.

e) The petitioner undertakes not to make any inducement, threat

or promise, directly or indirectly, to any person acquainted with

the facts of the case to dissuade him from disclosing such facts to

the Court or any Police Officer or tamper with the evidence.

f) The petitioner undertakes to attend the trial.

Considering the seriousness of accusations against

petitioners, this Court in order to secure the ends of justice and

prevent abuse of process of law, deems it just and proper to

exercise inherent powers under Section 482 Cr.P.C. It is directed

that the evidence of prosecutrix (P.W.7) recorded by the trial court

is hereby expunge. The trial court is further directed to summon

the victim/prosecutrix (P.W.7) afresh for recording of her

statement keeping in view the procedure contained in Section 119

of Indian Evidence Act and Section 36 of Protection of Children

from Sexual Offences Act, and so also the dictum laid by Hon'ble

the Supreme Court in the case of Darshan Singh @ Darshanlal

(supra).

In case, trial court finds any difficulty in arranging services of

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expert of signs language, then it may contact Rajasthan State

Legal Services Authority, Jodhpur/Jaipur which shall provide

services of expert of signs language, to facilitate the recording of

the statement of prosecutrix. The T.A., D.A. and other expenses, if

any of the signs language expert shall be borne by the Rajasthan

State Legal Services Authority, Jodhpur/Jaipur

The trial court is directed to expedite the trial and complete

the same within a period of six months from the date of this order.

The registry is directed to forward a copy of this order to the

trial court forthwith.

(KULDEEP MATHUR),J Prashant/-

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