Judgment ( 1. ) THIS judgment shall govern disposal of both the appeals i. e. Criminal Appeal No. 232 of 2003 and Criminal Appeal No. 309 of 2003 as they arise out of a common judgment dated 31/3/2003, passed by the Third additional Sessions Judge (Fast Track), Guna (M. P.) in Sessions Trial No. 178 of 2001, whereby the Sessions Court has convicted the appellants in both the appeals for commission of offence under Section 376 (2) (g) of IPC and sentenced them to undergo rigorous imprisonment for ten years with a fine of Rs. 5,000/- each, in lieu six months rigorous imprisonment. ( 2. ) AS per prosecution story, accused Vinod was carrying on business of driving a jeep on hire. Brijmohan P. W. I was cleaner on the said jeep. On 12/03/2001 Vinod had brought his jeep from Raghogarh to Guna along with cleaner brijmohan P. W. 1. At Guna, they met Sahjad, Govind and Narayan Singh along with a deaf and dumb girl (prosecutrix P. W. 8 ). They boarded the jeep at Guna bus: stand along-with other passengers. Narayan Singh and Govind told Vinod that he will look after the girl till the evening and return her back in the evening. When the jeep returned to Raghogarh, all the passengers got down except the prosecutrix (P. W. 8 ). Vinod gave Rs. 50/- to Brijmohan and asked him to buy some food and come at the well of Moiya. Brijmohan P. W. 1 after purchasing food went to the well of Moiya where Govind, Narayan Singh and Vinod took the food. Thereafter, govind, Narayan and Vinod took the girl to the jungle where Govind; Narayan and vinod committed rape on her and left her near Astabhuja temple. Gopal, P. W. 7 met the prosecutrix at Astabhuja temple and took the prosecutrix to the police station Raghogarh where report was lodged. ( 3. ) ON the basis of the report, police registered crime no. 384 of 2001 against the accused as Ex. P/10. Co- accused Govind was absconding. Hence, the police after completion of investigation filed challan only against present appellants. The matter was committed to the Sessions Court where the Sessions Court framed the charge against the accused for commission of offence under Section 376 (2) (g) of IPC. 384 of 2001 against the accused as Ex. P/10. Co- accused Govind was absconding. Hence, the police after completion of investigation filed challan only against present appellants. The matter was committed to the Sessions Court where the Sessions Court framed the charge against the accused for commission of offence under Section 376 (2) (g) of IPC. After recording the evidence and appreciating the same, the Sessions Court convicted and sentenced the present appellants as stated herein-above. Hence, this appeal. ( 4. ) THE contention of learned counsel Shri Atul Gupta appearing on behalf of appellants with learned counsel Shri Raghuveer Singh is that the findings arrived at by the Sessions Court holding the present appellants guilty of commission of offence under Section 376 (2) (g) of IPC are based on no evidence, are perverse and liable to be set aside. They contended that in absence of any legal evidence against the present appellants the conviction cannot be maintained. ( 5. ) ON the other hand, Shri P. N. Gupta, learned Public Prosecutor appearing on behalf of respondent- State supported the impugned judgment of conviction and sentence. ( 6. ) TO appreciate the arguments of both the parties, it is necessary for this Court to marshal the evidence on record. ( 7. ) P. W. 1 Brijmohan is the witness examined by the prosecution. This witness was cleaner of the jeep which was driven by Vinod. He says that at about 4-6 months prior to the incident, he was going from Raghogarh to Guna in the jeep. Vinod was driving the said jeep and he was cleaner. They left Raghogarh at about 8 in the morning and reached Guna at about 11 in the morning. Accused Narayan singh had also accompanied these persons. The jeep reached the bus-stand, Guna where they boarded some passengers. They also met Sahjad and Govind who were accompanied by a deaf and dumb girl. They asked to bring the said girl in the jeep. Thereafter, at Raghogarh where all other passengers got down from the jeep, accused Vinod gave him Rs. 50/-and asked him to purchase some food and come to the well of Moiya. When Brijmohan met there with food, he found accused narayan Singh and Vinod along with the said deaf and dumb girl, Four of them after taking food went to Astabhuja temple. 50/-and asked him to purchase some food and come to the well of Moiya. When Brijmohan met there with food, he found accused narayan Singh and Vinod along with the said deaf and dumb girl, Four of them after taking food went to Astabhuja temple. This witness further says that no wrong act has been committed with the girl. This witness has been declared hostile by the prosecution. In his cross-examination, this witness said that his statements were recorded by the police under Section 161 of IPC as Ex. P. 2, in which he has stated that accused had committed rape on the girl. But, he says that this statement was given at the instance of the police. ( 8. ) THE next witness in the present case is P. W. 2 Dr. (Smt.) Aradhana Vijaywargiya, who has examined the prosecutrix P. W. 8 on 14/3/2001. She has identified the girl and did not find any external or internal injury on her body. According to the doctor, her hymens was ruptured. According to the opinion of doctor, sexual characters are well developed and as per her opinion, there was a possibility of rape. ( 9. ) P. W. 3 is Dr. Rajesh Deebakar. According to this witness, he has examined the girl and found that the girl was deaf and dumb. He had referred the girl to ent Specialist. ( 10. ) P. W. 4 is 0m Prakash who says that he knows the accused. This witness says that he was driver in a jeep bearing registration no. MP08 5050. Narayan singh was cleaner in his jeep. He says that on the date of incident, his jeep was coming from Raghogarh to Guna. At about 1:30 in the noon where he saw a deaf and dumb girl, wearing salwar kurti was trying to speak but her language was not understandable. She sat in the jeep along-with the passengers. When other passengers got down from the jeep, Narayan Singh asked her to get down from the jeep and demanded money. This witness says that he went to bus-stand to pat his jeep in que. When this girl did not give money, some persons suggested to leave the girl from where she had come. This witness says that then he was standing at bus-stand, Raghogarh. He does not know what happened thereafter. This witness says that he went to bus-stand to pat his jeep in que. When this girl did not give money, some persons suggested to leave the girl from where she had come. This witness says that then he was standing at bus-stand, Raghogarh. He does not know what happened thereafter. This witness also says that accused Narayan Singh went to his home. At this stage, this witness was declared hostile by the prosecution. ( 11. ) P. W. 5 Munna is the conductor at bus-stand. This witness has been declared hostile by the prosecution as he has not supported the case of the prosecution. ( 12. ) P. W. 6 Surendra Kumar is SDO at Raghogarh, Guna. According to him, he was reader of SDM, Raghogarh. At that time, a lady constable, Krishna Sharma brought the girl to him. The girl was unable to speak and hear. ( 13. ) GOPAL P. W. 7 is the next witness in the present case. He says that he knows accused Vinod, Narayan Singh and one Sabir. He knows absconding accused sahjad and Govind. On 13/3/2001 at about 7 in the evening, he had gone to Astabhuja mandir where he met accused Narayan Singh with a girl. The girl aged about 20-22 years was fair in complexion and she was deaf and dumb. He took the girl to his house along-with him, gave her food and asked her to sleep along-with his mother. On the next day, he took the girl to the police station and asked the police to keep the girl in custody. ( 14. ) P. W. 8 is the prosecutrix examined herself before the Court. The Court while recording her statement observed that the girl is unable to speak and hear. The court had appointed Ram Ablesh Singh, who is an instructor in Madhya Pradesh deaf and Dumb Welfare Society at Gwalior. He was administrated oath before the Sessions Court. He, on the basis of signs and moment of lips of the girls, has given statement. As per the statement, when he asked the girl to identify the accused before the Court, she identified the accused by pointing her finger. She says that both the accused took her and offered food. She also says that accused narayan Singh had consumed liquor. Thereafter, accused Vinod took off her clothes. As per the statement, when he asked the girl to identify the accused before the Court, she identified the accused by pointing her finger. She says that both the accused took her and offered food. She also says that accused narayan Singh had consumed liquor. Thereafter, accused Vinod took off her clothes. She was crying at that time but accused Narayan Singh caught hold of her. One more person who has committed rape on her. The present appellants have not done anything with her. They have given lift to her in the jeep. In cross-examination, she was asked when she was taken by the accused but she was unable to answer this question. No further question was asked by the defence to her in her cross-examination. ( 15. ) DR. G. S. Kushwah is the doctor at Civil Hospital, Guna. He has examined himself as P. W. 9. He says that on 15/1/2001, at about 9:00 in the morning he had examined the prosecutrix P. W. 8. He says that the girl was deaf and dumb. The doctor says that he had performed x-ray. The girl was not able to understand any language. She was trying to speak something. He could not understand her language. ( 16. ) P. W. 10 Ram Singh says that on 14/03/2001 he was posted at police station raghogarh. After making entry in Raojnamcha Sanha, he had referred the girl to a lady police. ( 17. ) RAMBALAVSINGH Chouhan P. W. 11 is Station House Officer at police station raghogarh. This witness says that he had registered the crime and sent the copy of FIR to the Magistrate. He arrested accused and conducted investigation. In his cross-examination, he says that the girl was deaf and dumb. This witness also says that he had not called any expert at the time of investigation. He also admits that he has not recorded the statements of the girl at the time of recording of the evidence. ( 18. ) THUS, in the present case, the only evidence is statement of P. W. 8, the prosecutrix. As per the assessment of the Court, her age is about 18 years of age. Her name, her father and mothers name are unknown. ( 18. ) THUS, in the present case, the only evidence is statement of P. W. 8, the prosecutrix. As per the assessment of the Court, her age is about 18 years of age. Her name, her father and mothers name are unknown. In her statement, she has stated that accused Vinod had forcibly taken of her clothes, co-accused Narayan singh caught hold of her and third co-accused Govind who is absconding, has committed rape on her. ( 19. ) IT is true that for convicting the accused under Section 376 of IPC the statement of the prosecutrix alone is sufficient and no corroboration is required. Thus, conviction can be maintained on the sole testimony of the prosecutrix without any corroboration. ( 20. ) THE question in the present case is whether the statements of prosecutrix p. W. 8 are admissible in evidence and if so, whether the conviction can be based solely upon the statements of prosecutrix, particularly, when she was deaf and dumb. ( 21. ) SECTION 119 of the Indian Evidence Act makes a provision for examining the dumb witnesses. The said Section reads as under:-" 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 evidences. ( 22. ) AS per the aforesaid Section, a witness who is unable to speak and give his/her evidence in any other manner in which he/she can make it intelligible, as by writing or by signs; but such writing must be written and the signs must be made in open Court. These provisions have considered by the High Court of Madras in the case of VENKATTAN alias VENKATACHELLAM and OTHERS. Vs. EMPEROR 1912 Criminal Law Journal of India (Vol XIII) [271]. The High Court of Madras has held that a witness who is so deaf and dumb that it is impossible to make him understand the questions put in cross-examination, is not a competent witness, and his evidence, if taken, ought to be struck out; and a conviction based solely on his evidence, must be quashed. The High Court of Madras has held that a witness who is so deaf and dumb that it is impossible to make him understand the questions put in cross-examination, is not a competent witness, and his evidence, if taken, ought to be struck out; and a conviction based solely on his evidence, must be quashed. The Madras High Court further held that deaf and dumb witness who is unable to understand the questions put to her in her cross-examination, is not a competent witness and cannot be relied for convicting any other person. ( 23. ) NEXT judgment is in the case of Kumbhar Musa Alib Vs. State of Gujarat air 1966 Gujarat 101. In that case, the High Court of Gujarat while considering the provisions of Section 119 of the Indian Evidence Act, has held that if dumb witness gives signs as required under Section 119 of the Indian Evidence Act the evidence must be a record of signs and not the interpretation of signs. It is true that at some places, the learned Sessions Judge has recorded the signs as well as the interpretations, but the signs made by the witness in answer to several other questions are not recorded but only the interpretations. That is not a correct compliance with Section 119 of the Indian Evidence Act. The High Court of Gujarat has further held that the appellate Court is unable to know whether the interpretation of the signs is correct or not. In such a situation, the High Court has set aside the conviction of accused. In that case, due to assault complainant has lost his power of speech. ( 24. ) IN the case of Prakash Chand Vs. State of Himachal Pradesh 1999 (1) Crimes 675, the High Court of Himachal Pradesh again considered the provisions of Section 119 of the Indian Evidence Act and has held that while dealing with the manner in which the evidence of a dumb witness is to be recorded under Section 119 of the Indian Evidence Act, it must be a record of signs made by witness and not the interpretation of signs. The High Court of Himachal Pradesh has also held that if the trial Court fails to record the signs made by the witness in answer to. The High Court of Himachal Pradesh has also 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 full compliance of Section 119 of the Evidence Act. The High Court of Himachal pradesh has further held that the appellate Court must have to know whether the interpretation of the signs is correct or not. Then, of course, the conviction cannot be maintained. It is further held that while recording the statement of a deaf and dumb witness with the help of an expert or some person who is very much familial with the witness, the learned Sessions Court cannot be expected to have any thing more than a laymans knowledge in conversing with a deaf and dumb person, it was highly improper on his part to embark upon the examination of such witness without the help of an expert or a person familiar with his mode of conveying ideas to others in day-to-day life. In absence of such evidence, the witness cannot be reliable. ( 25. ) IN the case of Rajesh Kumar and Anr Vs. State ofh. P. 2007 Cri. L. J. 3029, the High Court of Himachal Pradesh has laid down that the learned Sessions court cannot be expected to have anything more than a laymans knowledge in conversing with a deaf and dumb person. It is highly improper on his part to embark upon the examination of the witnesss statement which is recorded without the help of an expert or a person familiar with his mode of conveying ideas to others in day-to-day life. Thus, the High Court of Himachal Pradesh has reiterated the earlier view as has been expressed in the case of Prakash Chand (surpa ). ( 26. ) IN the case of Darshan Singh alias Darshan Lal Vs. State of Rajasthan 2006 Cri. L. J. 3008, the High Court of Rajasthan while dealing with the provisions of Section 119 of the Indian Evidence Act, has laid down that before recording the statement of a deaf and dumb witness the Court is required to ascertain that he possess the requisite amount of intelligence, and that he understands the nature of oath. Not only this, but he is also required to record the satisfaction to that effect. Not only this, but he is also required to record the satisfaction to that effect. The Court is required to ascertain, if the witness either by writing or sign can make intelligible of what he has to speak. If he is able to communicate his statement perfectly by writing, it will be more satisfactory method of taking evidence. When such a witness is not able to write then he can make sign showing what he wants to say. If, it is by signs, those signs must be recorded and not only the interpretations of those signs. It is necessary to enable the appellate Court to know whether the interpretation of the sign is correct or not. It is not safe for a court to embark upon the examination of a deaf and dumb witness on his own without the help of an expert or a person familiar with his mode of conveying ideas to others in day-to-day life. However, such a person should not be an interested person, who had participated in the investigation and who is also a witness in the same trial. ( 27. ) IN the case of Dilawarsab Alisab Jakati Vs. State of Karnataka 2005 Cri. L. J. 2687, the High Court of Karnataka has laid down that before recording the statement of the witness interpreter as well as witness both have to be administered oath before the Court proceeds to record evidence of a dumb witness, must record both signs as well as the interpretations of the interpreter and then only it becomes admissible under Section 119 of the Indian Evidence Act. ( 28. ) IN the case of Kadungoth Alavi Vs. State of Kerala 1982 Cri. L. J. 94, the high Court of Kerala has held that a deaf and dumb witness can be examined with the assistance of an expert or person familiar with signs or gestures. The court has power to take help of an expert in exercise of powers under Section 282 of Cr. P. C for assisting the Court to examine a witness who is familiar with his mode of conveying ideas and if such witness is the only eye-witness, his statement can be relied for upholding the conviction. ( 29. ) SIMILAR is in the case of The Public Prosecutor. High Court of A. P. Hyderabad Vs, Lingisetty Sreenu 1997 Cri. LJ. 4003. ( 29. ) SIMILAR is in the case of The Public Prosecutor. High Court of A. P. Hyderabad Vs, Lingisetty Sreenu 1997 Cri. LJ. 4003. In that case of rape, the high Court of Andhra Pradesh from a bare reading of Section 119 of the Indian evidence Act, found that a deaf and dumb person can be a competent witness. According to the said Section, a witness who is unable to speak, may give his or her evidence in any other manner he or she can make such evidence intelligible. The other manners in which a person can make his ideas intelligible would be either by a written word or by signs. The only restriction is that such expressions of the ideas by means of signs or writing should be made in open Court. The court in order to understand and appreciate the evidence of such witnesses expressing their ideas with the help of signs, it should necessarily seek the assistance of an expert so as to safely rely on such an evidence. The object of such principles is that by misunderstanding such signs an innocent person shall not be convicted and thus, it is a rule of prudence that such an expert evidence would be necessary in the circumstances. Section 282 of Cr. P. C. also enables the criminal Court to take the services of an interpreter for interpreting any evidence or statement, and such interpreter when required by the criminal Court is bound to state the true interpretation of such evidence or statement. Having appreciated this position of law only the Court below appointed the Principal, Government residential School for Deaf as an interpreter to this witness by administering the oath to him. It cannot be said that such a person who has been educating the deaf and dumb witness, is not an expert. From the evidence of an elicited witness with the help of an interpreter, it is proved that not only the commission of the offences but also the identity of the offender who is the accused before the Court. ( 30. ) IN the present case, the Sessions Court has taken help on the principle of deaf and dumb witness at the time of recording of the statement of P. W. 8 the prosecutrix on the basis of her gestures, her movement of lips before the Court. ( 30. ) IN the present case, the Sessions Court has taken help on the principle of deaf and dumb witness at the time of recording of the statement of P. W. 8 the prosecutrix on the basis of her gestures, her movement of lips before the Court. This expert cannot be said to be interested in the out-come of the trial. It was definitely a position to understand the expression of the prosecutrix by her signs or movement of lips. ( 31. ) IN the present case, the prosecutrix is a competent witness but the evidence of the prosecutrix cannot be said to be legal evidence because the signs and gestures made by her, are not recorded by the Court and cannot be examined by the Appellate Court while appreciating her evidence. Apart from that, from a perusal of the record, it appears that no oath was administered to the Instructor, m. P. Deaf and Dumb Welfare Society, Gwalior. Moreover, the statement- of the prosecutrix in the present case are not corroborated by any other medical evidence. Even as per the statement of Dr. (Smt.) Aradhana Vijaywargiya (P. W. 2), she has not given a define opinion about the commission of rape. It is true that normally conviction for commission of offence under Section 376 of IPC can be based on the statement of the prosecutrix without any corroboration but in the instant case, the evidence of 3he prosecutrix who has been examined as P. W. 8 herself, is not legal evidence to support the conviction. ( 32. ) HENCE, both the appeals, i-e. Criminal Appeal No. 232 of 2003 and Criminal appeal No. 309 of 2003 stand allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellants are also acquitted from the commission of offence under Section 376 (2) (g) of IPC. The appellants are on bail, their bail bonds and sureties shall stand discharged. ( 33. ) BEFORE parting with this case, this Court appreciate the valuable assistance rendered by Shri K. N. Gupta, learned Senior Advocate as amicus curiae in setting the issue in the present case at rest. Appeal allowed.