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2001 DIGILAW 151 (HP)

MOHAN SINGH v. STATE OF HIMACHAL PRADESH

2001-07-18

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.—The appellant, Mohan Singh, hereinafter referred to as the accused, has preferred the present appeal against the judgment dated 31.1.1997 of the learned Additional Sessions Judge, Nahan, passed in Sessions trial No. 58-N/7 of 1994 whereby he has been convicted for the offence under Section 376, Indian Penal Code, and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000. In default of payment of fine, he has been sentenced to undergo simple imprisonment for a further period of one year. 2. Briefly, the prosecution story may be thus stated. PW Smt. Paramjeet Kaur wife of PW 1 Triloki Nath is a resident of Village Kundian, Tehsil Paonta Sahib, District Sirmaur. She has two sons and two daughters. The eldest child is a daughter, that is, PW 15 Saroj Bala. On 1.7.1993, PW Smt. Paramjeet Kaur alongwith her husband had gone to her parental house in village Amohwala for the purpose of weeding of the maize crop. Her daughter, PW 15 Kumari Saroj Bala, who was of about 13 years of age and who is deaf and dumb was at home. Her other three children had gone to school. She alongwith her husband returned from Amohwala on 2.7.1993 at about 8 p.m. By that time all her children after taking their dinner, had already gone to sleep. She and her husband after taking dinner after went to sleep. On the following day in the morning, she found PW 15 Kumari Saroj Bala lying in bed till late hours of the morning. She enquired from her daughter PW 15 the reasons for her being in bed till late hours, on which PW 15 Kumari Saroj started weeping and told her that on 1.7.1993, the accused, whom PW 15 used to call as "Mama" (maternal uncle) had come and had asked for water. PW 15 Kumari Saroj then brought a glass of water and gave it to the accused. The accused, who had in the mean time bolted the room from inside, caught hold of PW 15 Kumari Saroj by her arm and pushed her on the cot. He opened the waist-band of her Salwar and committed sexual inter-course with her forcibly. She tried to resist. She also raised cries but such cries could not be heard by anyone. 3. He opened the waist-band of her Salwar and committed sexual inter-course with her forcibly. She tried to resist. She also raised cries but such cries could not be heard by anyone. 3. The occurrence was then narrated by PW 8 Smt. Paramjeet Kaur to her husband PW 1 Triloki Nath when he returned from his work in the evening. The matter was also reported to the Pradhan of the Gram Panchayat. On 4.7.1993 PW 8 lodged the report with the police and a case for the offence under Section 376, Indian Penal Code, came to be registered at Police Station, Paonta Sahib vide FIR No. 216 of 1993 (Ex. PW 8/A). 4. During the course of investigation, PW 15 Kumari Saroj was subjected to medical examination. PW 10 Dr. Ranjana Oberoi conducted such medical examination. She observed as under:— (a) secondary sex characters were well developed; (b) the prosecutrix PW 15 Kumari Saroj complained of pain on both sides of her breast, however, no mark of injury was found on the breast as well as on other parts of her body; (c) Hymen was torn, healed and formation of carnuclae was there. Vaginitis was found; (d) the vagina admitted two fingers tight but no injury was found. 5. In the opinion of PW 10 Dr. Ranjana Oberoi, there was nothing to suggest that sexual inter-course had not been performed with the prosecutrix. PW 11 Dr. H.K. Pant opined the skeletal age of the prosecutrix to be between 14 and 15 years. 6. The investigation officer took into possession the clothes of the prosecutrix which she was alleged to be wearing at the time of occurrence. He also took into possession abstract of the "Parivar Register" from the Gram Panchayat showing the date of birth of the prosecutrix as 21.9.1977. 7. Thus, on a case having been found against the accused, he was accordingly arrested, charged and sent up for trial. The accused pleaded not guilty and claimed trial. His case is that of denial and false implication due to enmity. 8. The prosecution in support of its case examined sixteen witnesses in all. The accused examined two witnesses in defence. The learned trial Judge on consideration of the material placed before him convicted and sentenced the accused as aforesaid. 9. The accused pleaded not guilty and claimed trial. His case is that of denial and false implication due to enmity. 8. The prosecution in support of its case examined sixteen witnesses in all. The accused examined two witnesses in defence. The learned trial Judge on consideration of the material placed before him convicted and sentenced the accused as aforesaid. 9. It is by now well settled that there is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. 10. In the present case, while convicting the accused for the offence, the learned trial Judge has placed reliance on the testimony of the prosecutrix PW 15 Kumari Saroj Bala. Admittedly, the prosecutrix PW 15 Kumari Saroj Bala is deaf and dumb. Before proceeding to record the statement of the prosecutrix, the learned trial Judge has observed:— "The witness is deaf and dumb. It is urged by the P.P. Shri K.D. Sharma that her mother Smt. Paramjeet Kaur who is present in the Court today be appointed as interpreter of the language of her mute daughter, the prosecutrix. Shri A.S. Shah, counsel for the accused taken an exception to it simply on the close relationship of the prosecutrix. I simply hasten to agree with the contention of the learned defence counsel on this score. Let some other person be appointed as interpreter. One Shri Akhtar Ali whose name is figuring in order dated 28.11.1993 is also present who comes forth to interpret the language of the prosecutrix correctly. Therefore, I proceed to appoint him as the interpreter of the prosecutrixs expressions, signs, gestures. On my examination I found that some of the expressions are clearly decipherable on being uttered by her. Besides this I put the following to the prosecutrix through the interpreter." 11. Thereafter, the learned trial Judge put five questions to the prosecutrix through the interpreter. These questions were of general nature relating to her name, the name of her mother, the clothes she was wearing and the colour thereof. Besides this I put the following to the prosecutrix through the interpreter." 11. Thereafter, the learned trial Judge put five questions to the prosecutrix through the interpreter. These questions were of general nature relating to her name, the name of her mother, the clothes she was wearing and the colour thereof. The learned trial Judge then further observed:— "All these questions when put to the prosecutrix through the said interpreter were followed by her correctly and so answered as well. Therefore, I proceed to appoint Akhtar Ali as the interpreter of the prosecutrix." 12. Be it stated that though oath is shown to have been administered to the prosecutrix before her examination, no oath is shown to have been administered to the interpreter as required under Section 4 of the Oaths Act, 1969. Section 119, Evidence Act, 1872, provides:— "Dumb witnesses.—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." 13. While dealing with the manner in which the evidence of a dumb witness is to be recorded under Section 119. Evidence Act, it has been held by the High Court of Gujarat in Kumbhar Musa Alib v. State of Gujarat, AIR 1966 Gujarat 101, in the following terms:— "If evidence is recorded under that section, there must be a record of signs and not the interpretation of signs." 14. It was further held that if the trial Court fails to record the signs made by the witness in answer to questions put to him and records only the interpretation of such signs, there is no correct compliance of Section 119, Evidence Act. This also does not enable the appellate Court to know whether the interpretation of the signs is correct or not. 15. This also does not enable the appellate Court to know whether the interpretation of the signs is correct or not. 15. A Division Bench of the Kerala High Court in Kadungoth Alavi v. State of Kerala, 1982 Criminal L.J. 94, while impressing upon the need to examine a deaf and dumb witness with the help of an expert or some person who is very much familiar with the witness, has observed:— "As the learned Sessions Judge cannot be expected to have anything more than a laymans knowledge inconversing with a deaf and dumb person, it was highly improper on his part to embark upon the examination of PW 4 without the help of an expert or a person familiar with his mode of conveying ideas to others in day-to-day life." 16. Following the above ratio, this Court in Parkash Chand v. State of Himachal Pradesh, 1998(2) Sim. L.J. 1823, has held that if the trial Court has failed to record the signs of the deaf and dumb witness and, has only recorded the interpretations of the signs, no reliance can be placed on such evidence. 17. In the present case as well the learned trial Judge has failed to record the signs made by the prosecutrix in answer to the questions put to her, but has recorded the interpretation to the signs as given by the interpreter. Therefore, there has been no correct compliance of Section 119, Evidence Act, 1872. In the absence of record of signs, this Court is not able to know whether the interpretation of the signs is correct or not. 18. In addition to above, in the present case the age of the prosecutrix also has not been proved. In order to show that the prosecution was below the age of sixteen at the relevant time reliance is sought to be placed on Ex. PW 3/A, an abstract of the "Parivar Register", wherein the date of birth of the prosecutrix is recorded as 21.9.1977. As per this date of birth, the age of the prosecutrix comes to fifteen years nine months and ten days at the relevant time. 19. Dealing with the evidentiary value of an entry with regard to the date of birth in the "Parivar Register", a learned Single Judge of this Court in Saroti Devi and others v. State of H.P., 1998 (2) Sim. 19. Dealing with the evidentiary value of an entry with regard to the date of birth in the "Parivar Register", a learned Single Judge of this Court in Saroti Devi and others v. State of H.P., 1998 (2) Sim. L.J. 1472, has held that such entry will not carry any legal weight whatsoever to prove the date of birth of the prosecutrix. 20. The skeletal age of the prosecutrix has been given by PW 11 Dr. H.K. Pant as between 14 and 15 years. It is not disputed that the opinion of the Radiologist is not conclusive as to the actual age of the person examined. Such an opinion has to be taken note of in support of other evidence examined in this regard. Such an opinion as to the age would be legally helpful in determining the age of the prosecutrix if there is some other legal evidence in this regard, In the absence of other evidence, the opinion of Radiologist will not be sufficient to fix the age of the prosecutrix at the relevant time. In the present case, there is no other evidence as to the age of the prosecutrix. 21. PW 8 Smt. Paramjeet Kaur, who was examined on 4.10.1994, has deposed that she was married about 21/22 years back and that the prosecutrix was born to her after about 2-1/2 years of her marriage. So calculating, PW 8 appears to have got married some where in 1972-73 and the prosecutrix must have been born to her some where in 1975-76. The prosecutrix, thus, as per the version of PW 8, was more than sixteen years of age at the relevant time. 22. As per the prosecution story, the prosecutrix was subjected to rape during the day on 1.7.1993. The prosecutrix was medically examined on 5.7.1993 at about 11.25 a.m., that is, four days after the alleged rape. PW 10 Dr. Ranjana Oberoi who conducted the medical examination of the prosecutrix observed that hymen was found torn and healed. There was formation of carnuclae. During the course of cross-examination, PW 10 has deposed:— "It is correct that tears of hymen heal within 5 or 6 days and thereafter it takes 8 to 10 days for the formation of granual tags of the rupture of hymen." 23. It is not the case of the prosecution that the prosecutrix was having sexual experience in the past. During the course of cross-examination, PW 10 has deposed:— "It is correct that tears of hymen heal within 5 or 6 days and thereafter it takes 8 to 10 days for the formation of granual tags of the rupture of hymen." 23. It is not the case of the prosecution that the prosecutrix was having sexual experience in the past. From the facts of the case it appears that the prosecutrix was subjected to sexual inter-course for the first time on 1.7.1993 as per the prosecution story. The condition of hymen found at the time of medical examination creates a doubt as to the truthfulness of the prosecution story. Benefit of doubt, therefore, has to be given to the accused. 24. Resultantly, the present appeal is allowed. The conviction and sentence imposed upon the accused are set aside and he is acquitted of the offence under Section 376, Indian Penal Code. 25. The accused is on bail. His bail bonds shall stand cancelled and discharged. The amount of fine, if already deposited, shall be refunded to him forthwith. Appeal allowed.