Pittala Komuraiah, Karimnagar ... vs The State, Rep. Pp., Hyd.,
2021 Latest Caselaw 4238 Tel

         THE HON'BLE Dr. JUSTICE G. RADHA RANI

                CRIMINAL APPEAL No.94 of 2013

JUDGMENT:

This appeal is preferred by the appellant - accused aggrieved by

the judgment dated 11.01.2013 passed in Special Sessions Case No.1

of 2011 by the Special Sessions Judge for trial of offences under

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, Karimnagar.

2. The case of the prosecution in brief was that on 17.04.2010

at 10.00 AM, the father of the victim girl lodged a report before the

LMD Colony Police, stating that he was a resident of Parlapalli

village, Timmapur Mandal and belonged to Erukula community. He

had two daughters and two sons. His younger daughter was deaf and

dumb by birth. She was studying 9th class and aged 14 years. She

used to go to the house of his neighbour i.e. appellant - accused, aged

40 years, for watching TV, as the daughter of the accused was her

friend. Taking advantage of the innocence of the victim girl, the

accused sexually exploited her for a period of six months. When the

victim girl complained of stomach pain, they consulted a doctor in a

private clinic. The doctor examined her and after conducting

necessary tests, stated that she was carrying pregnancy of 4 months.

When they enquired with their daughter, she informed with signs and

gestures that she was exploited by the accused. Hence, he prayed to

take action against the accused.

Dr.GRR,J

3. Basing on the said report, the police registered Crime No.64

of 2010 under Section 376 IPC and Section 3 (1) (xii) of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short

'SC & ST Act'), issued FIR and after conducting investigation filed

charge sheet against the accused for the offences under Section 376

IPC and Section 3 (1) (xii) of the SC & ST Act. The Additional

Judicial Magistrate of First Class, Karimnagar had taken cognizance

of the offences and committed the case to the Court of Sessions as the

offences under Section 3 (1) (xii) of the SC & ST Act are triable by

the Special Court. The case was taken on file as Spl.S.C.No.1 of 2011

by the said Court and charges were framed against the accused for the

above offences. During the course of trial, the prosecution examined

PWs.1 to 19 and got marked Exs.P1 to P16. The accused was

examined under Section 313 Cr.P.C. He reported no defence

evidence. After considering the evidence on record and after hearing

the learned Public Prosecutor and the learned counsel for the accused,

the trial Court convicted the accused for the offence under Section

376 IPC and sentenced him to undergo Rigorous Imprisonment for 7

years and fine of Rs.3,000/-, in default of payment of fine to undergo

simple imprisonment for 3 months for the said offence, and acquitted

the accused for the offence under Section 3 (1) (xii) of the SC & ST

Act.

4. Aggrieved by the judgment of conviction and sentence

passed by the Special Sessions Judge, Karimnagar, the accused Dr.GRR,J

preferred this appeal contending that the trial Court erred in

sentencing him to undergo imprisonment for 7 years for the offence

punishable under Section 376 IPC. The trial Court did not appreciate

the fact that PW.2 - victim girl in her cross examination clearly

admitted that there was a quarrel between the accused and PW.1-

father of PW.2, thus, the trial Court failed to see the ill motive behind

impleading the accused in the present case. The trial Court lost sight

of the fact that PW.2 clearly admitted that there was a colour TV in

her house for the past 7 years and thus there was no need to go to the

house of the accused for watching TV. Admittedly, the daughter of

the accused was married one year prior to the date of the alleged

incident. As such, there was no occasion for PW.2 to go to the house

of the accused. The trial Court failed to see the contradictions in the

evidence of prosecution witnesses in respect of miscarriage of PW.2,

which raised suspicion on the version of the prosecution witnesses.

The trial Court went wrong in convicting the accused in the absence

of any independent corroboration, ignoring the fact that all the

independent witnesses turned hostile. None of the offences charged

against the accused were established or proved by the prosecution and

prayed to set aside the conviction and sentence passed by the Special

Sessions Judge, in Spl.S.C. No.1 of 2013 vide dated 11.01.2013.

5. Heard the learned counsel for the appellant - accused and

the learned Public Prosecutor.

Dr.GRR,J

6. The learned counsel for the accused mainly contended on the

precautions to be taken while recording the evidence of a deaf and

dumb witness. He contended that the trial Court failed to administer

oath to the interpreter or to obtain his signature on the evidence of the

victim girl, who was examined as PW.2. The trial Court failed to note

the discrepancies in the evidence of the witnesses. The prosecution

failed to prove that the victim was pregnant and failed to see that

PWs.1 to 3 were inimical towards the accused and falsely implicated

him in the present case and prayed to allow the appeal.

7. The learned Public Prosecutor, on the other hand, supported

the judgment of the trial Court and contended that the burden would

lie on the accused to prove that he was falsely implicated in the case

due to enmity and he failed in discharging the said burden. No

suggestions were given in the cross examination of the witnesses that

the accused had no acquaintance with the victim and no suggestions

were given to the interpreter that the translation made by him was

wrong or manipulated, and submitted that the judgment and

conviction were proper and needed no interference by this Court in

the appeal.

8. Perused the record and the evidence of the witnesses. PW.1

is the complainant, who is the father of the victim girl and he stated

that he belonged to Erukula caste (Scheduled Tribe), and the accused

belonged to Tenugu caste. His daughter was aged 14 years at the time

of the incident. The daughter of the accused was also studying along Dr.GRR,J

with his daughter in the same school and the accused was having TV

in his house and his daughter used to go to the house of the accused to

watch TV. Two years prior to the date of his giving evidence on

09.08.2012, his daughter informed him and his wife that she was

having stomach pain, as such he took her to a private hospital and the

doctor examined her and informed that she was four months pregnant.

Then they brought their daughter to their house and asked her about

the pregnancy. His daughter used to call the accused as 'Mama' by

courtesy. She informed him by signs and gestures that the accused

committed rape on her and about the identification of the accused.

Then he went to the police station and lodged the report. The report

was marked as Ex.P1.

9. In his cross examination, he admitted that six months back,

they purchased a colour TV. It was suggested to him that they had

colour TV for the past five years and a dish connection, which was

denied by him. It was elicited that he owned a crane and the accused

was also having a crane and the accused stood as a surety for

purchasing electric wire from Kurella Latchavva on credit basis and as

he failed to pay the amount either to the accused or to the said Kurella

Latchavva, a dispute took place between him and the accused with

regard to non-payment of the amount, as such, he foisted a false case

against him, which was denied by him. He denied that the accused

himself paid the said amount to Latchavva. He admitted that the

marriage of the daughter of the accused took place on 07.05.2009 with Dr.GRR,J

one Raju of Porandla Village. He stated that the accused kept his

daughter and his son-in-law in his house even after the marriage as

illetum. He also admitted that the marriage of his daughter also took

place three months back. He denied that his daughter was aged 20

years at the time of filing the complaint. It was suggested to him that

he was running a liquor shop and manufacturing the liquor and his

daughters used to sell the liquor and many people used to come to his

place. He denied the same. It was also suggested to him that his

daughter used to work at the house of one Madhusudhan Reddy. He

stated that his elder daughter used to work in the house of said

Madhusudhan Reddy, but not the victim, who was his second

daughter.

10. Thus, the defence taken by the accused was that there were

several other persons who could be responsible for the pregnancy of

the victim girl, but not the accused. It was denied by the witness.

PW.1 stated that the victim girl told him that the accused intercoursed

with her twice in six months period. It was also elicited in the cross-

examination of this witness that he got terminated the pregnancy. He

stated that the pregnancy was not terminated, but abortion took place

by itself after one month.

11. The victim girl was examined as PW.2. She was

administered oath as per her deposition. It was stated that a Retired

Principal of Government Residential School and College of Deaf,

Baptla, was taken as interpreter to put questions to the witness and to Dr.GRR,J

explain the answers to the Court. With his help, the evidence of PW.2

was recorded wherein she stated that the house of the accused was

nearer to her house. When she went to the house of the accused, he

closed the doors, held her and intercoursed with her. She knew the

daughter of the accused and used to go to the house of the accused.

She went to the house of the accused as he called her. She was

examined by the doctor and stated that she was pregnant and the said

pregnancy was removed.

12. In her cross-examination, PW.2 admitted that the marriage

of the daughter of the accused took place one year prior to the case.

She stated that there was a colour TV in her parents' house for the

past seven years. She admitted that there was a quarrel between the

accused and her father in respect of electric wire but the same was

denied by her immediately. She was also questioned with regard to

Madhusudhan Reddy and she stated that her elder sister worked in his

house to sweep the house and to do other household works. She stated

that the doctor aborted her but she did not know who was the said

doctor. She denied that the accused never committed any rape on her

and never called her and she never went to the house of the accused.

Her signature was obtained on her evidence and there was also the

signature of some other person below her signature. Date was also

mentioned there as 09.08.2012, apart from the signature of

I-Additional Sessions Judge, who recorded the said evidence.

Dr.GRR,J

13. The mother of the victim girl was examined as PW.3. She

stated that two years back her daughter informed them that she was

having stomach ache and they took her to Sarojani Hosptial,

Karimnagar. After conducting tests, they were informed that the

victim girl was four months pregnant. She stated that her daughter

was aged 14 years at the time of incident. Then they brought her home

and asked her about the pregnancy and she informed that Mama i.e.

accused, used to commit rape on her when she went to watch TV in

the house of the accused since four months prior to lodging the

complaint. She further stated that four or six days after filing the

complaint, the pregnancy was aborted by itself and denied that they

got aborted the pregnancy by the doctor. She stated that she along

with her husband and Madhusudhan Reddy went to the Police Station

to give complaint, and 2 to 3 days after the victim girl being examined

by the doctor, they gave complaint to the police. She admitted that

the accused stood as surety for purchasing wire by her husband and

stated that there was no quarrel in that regard. She denied that there

was a colour TV in their house for the past 7 years prior to lodging the

report and denied that the victim was not going to the house of the

accused to watch TV. She denied that victim was aged 20 years at the

time of lodging the complaint. She stated that there were four or five

houses in between their house and the house of the accused. She

denied that the victim worked in the house of Madhusudhan Reddy.

She stated that only her elder daughter worked there.

Dr.GRR,J

14. PWs.4 to 11 cited as circumstantial witnesses, who were

alleged to have witnessed the victim visiting the house of the accused

regularly and the mother of the victim informing them about the

victim becoming pregnant due to exploitation by the accused, turned

hostile and not supported the case of the prosecution.

15. The material evidence in this case is that of the victim girl

and that of her parents, who were examined as PWs. 1 to 3, but not of

PWs.4 to 11 as their evidence was only circumstantial and hearsay.

The defence tried to extract contradictions in the evidence of the

witnesses. The contradictions with regard to whether the victim

worked in the house of one Madhusudhan Reddy and whether there

was a colour TV in the house of PWs.1 to 3 with a dish connection

and whether the pregnancy was got aborted by the doctor or resulted

in miscarriage by itself are not on material aspects. The point to be

decided is whether the victim was a minor girl and whether the

accused had sexually exploited her and whether the accused was

responsible for her pregnancy. If the evidence of PWs.1 to 3 is

consistent on the said aspects, the same can be believed. The crucial

witness is the victim herself as she was the one who can speak about

her pregnancy and who was responsible for it. But, she is a dumb girl,

who cannot speak. She can make signs and can speak in her sign

language. She was also attending regular Government School along

with the daughter of the accused and was studying 9th Class by the

date of offence as per the evidence of this witness. Thus, she might be Dr.GRR,J

able to hear also, but was only unable to speak. The parents are

accustomed to speak with her and understand her sign language. It

was the trial Court which cannot understand the sign language and

thus, it had taken the help of an interpreter. The interpreter, whose

assistance the trial Court had taken was a retired Principal from the

Government Residential School and College for Deaf, Bapatla. He

was not related to the victim or known to her in any manner. He is an

independent witness. The independent character of his evidence was

not even challenged by the defence. The only contention taken by the

learned counsel for the accused - appellant in this case was that oath

was not administered to the interpreter and his signature was not taken

on the deposition of the victim, examined as PW.2.

16. Learned counsel for the accused relied upon the judgment

of the Hon'ble Apex Court in the State of Rajasthan v. Darshan

Singh1, wherein it was held in paras-26 to 29 that:

"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 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 be 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 required that there must be a record of signs and not the interpretation of signs.

2012 (5) SCC 789 Dr.GRR,J

27. In Meesala Ramakrishna v. State of A.P., (1994) 4 SCC 182, 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 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.

It was also further held that:

"24 This Court in Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, has categorically held that the main purpose of administering of oath is to render persons who give false evidence liable to prosecution and further to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, further such matters only touch credibility and not admissibility. However, in view of the provisions of Section 7 of the Oaths Act, 1969, the omission of administration of oath or affirmation does not invalidate any evidence."

Dr.GRR,J

17. In the present case, oath was administered to the witness

PW.2 as per her deposition and the signature was also present below

the signature of the victim but not mentioned therein as an interpreter.

The Court in its judgment in para-9 stated that:

"The victim is deaf and dumb. So a retired Principal of Government Residential School for deaf, Bapatla was summoned to translate at the time of her examination in the Court hall her body language. He assisted the Court, but his signature was not obtained on the deposition. But, accused did not question his presence and translation. I, therefore, take his translation correct."

18. Basing on the said observation by the Court below, the

learned counsel for the appellant - accused contended that as there

was no signature of the interpreter on the deposition of the witness,

the same cannot be accepted. But, as per the provisions of Section 7

of Oath Act, 1969, the omission of administration of oath or

affirmation does not invalidate any evidence. As the interpreter was

an independent witness his interpretation or translation can be safely

believed. Nothing was elicited in the cross-examination of PWs.1 to 3

to show that the accused was not responsible for sexually exploiting

the victim girl. PWs.1 to 3 had not deviated on the said aspect. There

were no contradictions in the evidence of PWs.1 to 3 in the said

regard. The minor contradictions with regard to the other facts would

not make their evidence unbelievable or unreliable.

19. The prosecution got examined the doctor, who worked at

Karimnagar District Headquarters Hospital at the relevant time and

examined PW.2 on the requisition filed by the police. She stated that Dr.GRR,J

she examined PW.2 on 19.04.2010 at 12.30 noon and found her to be

four months pregnant and gave report as Ex.P.16. In her cross-

examination, she stated that she mentioned in her report the age of the

victim as 14 years as informed by the victim/her parents. The report

marked as Ex.P-16 would disclose that the uterus appears to be 16

weeks. The prosecution also got examined PW.17, a Gynaecologist at

Sarojini Hospital, Karimnagar. She stated that PW.1 came to their

hospital on 03.04.2010 along with her mother with a complaint of

pain in the abdomen and she was a dumb and deaf girl. She examined

her and advised her ultrasound. The Radiologist of Sai Raja

Diagnostics Center, Karimnagar conducted ultrasound examination

and reported that she conceived. The pregnancy was 13 to 14 weeks.

The Court observed that the original report was not filed, as such, the

same was not marked. In her cross-examination, this witness stated

that she did not do the abortion.

20. Thus, the evidence of both these independent witnesses,

doctor of a private hospital and the doctor at the Government hospital

would confirm that the victim was pregnant by the date of lodging the

complaint before the police on 17.04.2010. The prosecution also got

examined the Assistant Professor of Forensic Medical Department,

Warangal, who issued the age certificate of the victim girl, as PW.12.

PW.12 stated that on the requisition of SDPO, Karimnagar, he issued

the age certificate Ex.P.10 and as per Ex.P.10, the victim was aged

between 15 to 17 years. The prosecution also got examined a retired Dr.GRR,J

Headmaster of Parlapalli village as PW.13, who stated that on the

requisition of police, he issued the date of birth certificate of PW.2,

which was Ex.P.11. He stated in cross examination that he gave the

certificate as per the admission register at the time of admission of

PW.2 in the School. Ex.P.11 would disclose the date of birth of the

victim girl as 27.07.1995. As per the said certificate, the victim was

aged 14 years by the date of complaint on 17.04.2010. It would also

confirm with the evidence of PW.12, who stated that the victim could

be aged between 15 to 17 years. Thus, the evidence of PWs.12 and 13

would prove that the victim was a minor girl and the evidence of

PW.s17 and 19 would prove that the victim girl was pregnant. The

evidence of PWs.1 to 3 would prove that the accused was responsible

for the pregnancy of the victim girl.

21. PW.15 is the Sub-Inspector of Police of LMD Police

Station, Karimnagar at the relevant period, who registered the case on

the complaint given by PW.1 and issued the FIR under Section 376

IPC and Section 3 (1) (xii) of the SC & ST Act. The FIR was marked

as Ex.P.13. PW.18 is the DSP, Karimnagar, who conducted

investigation in the above case and filed charge sheet. He stated about

the investigation conducted by him. In his cross examination, he

stated that he visited the house of PW.2 and there was no colour TV in

the said house. As it is observed earlier that the said aspect was not

much relevant, on what pretext the victim visited the house of the

accused whether it was for watching TV or due to her friendship with Dr.GRR,J

the daughter of the accused, the same was not material in deciding the

guilt of the accused.

22. Thus, the evidence of prosecution is consistent with regard

to the guilt of the accused for the offence under Section 376 IPC and

the same was proved beyond reasonable doubt by the prosecution.

Hence, this Court does not find any illegality in the judgment of the

trial Court or impropriety in the evidence of the witnesses so as to set

aside the same. As the trial Court imposed the minimum punishment

prescribed for the offence against the accused, the sentence inflicted is

also considered as not unreasonable. As the appellant - accused is

acquitted for the offence under Section 3 (1) (xii) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act and the

same was not challenged by the prosecution, this Court is not going

into the said aspect.

23. In the result, the Criminal Appeal is dismissed confirming

the conviction and sentence passed by the learned Special Sessions

Judge for trial of offences under Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, Karimnagar in Spl.Sessions

Case No.1 of 2011 vide Judgment dated 11.01.2013, against the

appellant - accused for the offence under Section 376 IPC. The bail

granted during the pendency of the criminal appeal shall stand

cancelled. The appellant-accused shall surrender forthwith before the

Court below and suffer the rest of the sentence, as confirmed by this

Court. In the event he fails to do so, the Court below shall initiate Dr.GRR,J

steps in accordance with law to apprehend and incarcerate him for the

balance period as per the confirmed sentence.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J December 10, 2021 KTL