JUDGMENT Deepak Gupta, J. This appeal by the State is directed against the judgment dated 24th December, 2002, delivered by the learned Additional Sessions Judge, Mandi, in Sessions Trial No. 9 of 2001, whereby the accused were acquitted of having committed offences punishable under Sections 302, 307, 201, 120B read with Section 34 of the Indian Penal Code. 2. The entire trial in this case is based on the statement of PW8, Avinesh @ Abu, who is a physically challenged person being a deaf and mute person. He is able to speak a little bit but cannot complete his sentences. 3. The prosecution story, in brief, is that deceased-Rakesh Kumar was running a Public Calling Office (PCO) at Awah Devi. He was also running a Mahindra utility jeep as a goods carrier. Accused-Pawan Kumar was allegedly running a shop selling chicken in close proximity to the PCO run by deceased-Rakesh Kumar. The prosecution story is that accused-Pawan Kumar used to illicitly sell liquor in his shop and his customers under the influence of liquor would pass lewd comments on the ladies and girls who visited the PCO of the deceased. Deceased-Rakesh Kumar objected to the same. This resulted in a number of altercations taking place between the deceased-Rakesh Kumar and accused-Pawan Kumar. Admittedly, relations between them were strained. It is also in evidence that accused-Pawan Kumar finally wound up his shop in the month of August, 2000. 4. On 4th September, 2000, at about 8.30 p.m., Rakesh Kumar, alongwith his first cousin, PW8, Avinesh @ Abu, were going home. When they reached near a Pipal tree, Rakesh Kumar was murdered by the accused. It is alleged that deceased-Rakesh Kumar before dying raised an alarm and his father, PW1, Mahajan Singh, on hearing his cries, reached the spot. On the way, he met PW8, Avinesh @ Abu, who conveyed to him by his expressions that Rakesh Kumar had been stabbed by the accused. On this basis, FIR was lodged, investigation was carried out and finally the accused were charged with having committed the offences aforesaid. After trial, all the accused have been acquitted. Hence, this appeal by the State. Leave to appeal was granted only qua accused-respondents No. 1 and 4, i.e. Pawan Kumar and Suresh Kumar and not against the other accused. 5. After trial, all the accused have been acquitted. Hence, this appeal by the State. Leave to appeal was granted only qua accused-respondents No. 1 and 4, i.e. Pawan Kumar and Suresh Kumar and not against the other accused. 5. The entire case revolves around the testimony of PW8, Avinesh @ Abu, who is a deaf and mute witness. The Apex Court in M.P. Sharma versus Satish Chandra, AIR 1954 Supreme Court 300, clearly held that a person can be a witness if he makes intelligible gestures as in the case of dumb witnesses. 6. Before considering the evidence if PW8, Avinesh @ Abu, we may refer to an erudite judgment of the Apex Court in State of Rajasthan versus Darshan Singh alias Darshan Lal, (2012) 5 Supreme Court Cases 789, wherein the Apex Court laid down the principles as to how the statement of deaf and dumb witnesses has to be recorded. Reference was first made to Section 119 of the Indian Evidence Act, which reads as follows: “119. 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.” 7. The Apex Court went on to lay down the following principles which need to be reiterated for guidance of the trial Courts: “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 with the assistance of an interpreter. 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. 27. In Meesala Ramakrishan v. State of A.P., 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 the 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. Emphasized body language and facial expression enable 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. 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.” 8. We would like to record our appreciation with regard to the manner in which the statement of PW8, Avinesh @ Abu was recorded by the learned trial Court in this case. Not only did the learned trial Court satisfy itself that PW8 was capable of being examined with the aid of a person who understands his expressions, signs etc., but thereafter the learned trial Court asked Shri Raghubir Singh, father of this witness, who understood the expressions, feelings, signs and gestures of witness Avinesh @ Abu to assist the Court. Though, oath was administered to Avinesh @ Abu who subscribed to the oath by delivering a single word “sachee”, no oath was administered to his father, Raghubir Singh, who was interpreting his gestures. Great emphasis has been laid by Mr. M.S. Guleria on the fact that no oath was administered to the father, who is the real uncle of the deceased and could, in that sense, be said to be an interested witness. 9. At this stage, it would be pertinent to mention that the learned trial Court while recording the statement of the witness has not only relied on the interpretation given by the father of the witness but sometimes, the learned trial Court has relied upon the single word uttered by the witness or the gestures which the Court could understand. As far as these portions are concerned, they would be admissible in evidence. It is only that portion of the statement where the learned trial Court has totally relied upon the interpretation given by the father of the witness which cannot be admissible in evidence since no oath was administered to the father of the witness. 10. As far as these portions are concerned, they would be admissible in evidence. It is only that portion of the statement where the learned trial Court has totally relied upon the interpretation given by the father of the witness which cannot be admissible in evidence since no oath was administered to the father of the witness. 10. Coming to the statement of this witness, i.e. PW8, Avinesh @ Abu, it has been recorded in question and answer form. The facial expressions and gestures of the witness have all been duly noted down by the learned trial Court. When asked who was Rakesh @ Raku (deceased), the witness replied “bhai”. This needs no interpretation of the father or any other person. When asked which of the accused he knew, the witness pointed towards accused Pawan and uttered the word “Pawan” and then pointed out accused Suresh @ Pappu and uttered the word “Pappu”. No other answer or interpretation is required. The learned trial Court noted that in respect of the other three accused, the facial expression of the witness was that he did not know them. This also is an interpretation given by the Court and not by the father. Not only this, the witness by gestures and expressions explained that accused-Pawan was in the business of chopping meat and preparing it for eating. When asked about accused-Pappu, he uttered the word “Karate” and accused-Pappu, in fact, is a Karate teacher. 11. It is, thus, apparent that this witness not only could understand the questions, but could convey his answers clearly by gestures and expressions. It also appears from the statement of the witness that he could lip read. When asked what the deceased-Rakesh was doing, the witness uttered “Hello” and “jeep”, obviously meaning thereby that he had some work connected with a telephone and jeep. 12. Thus, we are clear that the procedure adopted by the learned trial Court was very good except that oath was not administered to the father of the witness, which may have been a better course to follow. This witness also stated that at 8 o'clock on the fateful evening, the PCO was closed and the deceased alongwith the witness was coming home. When asked where the occurrence took place, the witness folded his hands as if offering a prayer. This witness also stated that at 8 o'clock on the fateful evening, the PCO was closed and the deceased alongwith the witness was coming home. When asked where the occurrence took place, the witness folded his hands as if offering a prayer. This was interpreted by the father of the witness to mean that they had reached near the Pipal tree, which is holy. 13. The relevant portion of the testimony of the witness reads as follows: “Q.No. 8. The witness was made to understand by expression of finger and by movement of lips as to who was accompanying Raku alias Rakesh? Ans. The witness uttered Abu Bhai, interpreted by the interpretor to mean that Rakesh was accompanied by Abu, i.e. witness himself. Q.No. 9. The witness was made to understand with the help of movement of lips and also with the signs of hand as to where and when they reached the place of occurrence? Ans. The witness by folding his hand in the form of offering prayer which is interpreted by the interpretor reaching of Rakesh and Abu near Pipal tree. Q.No. 10. P.P. made to understand the witness by the action of lips and hand as to what happened near Pipal tree? Ans. The witness by his hand expression as well as by his murmer sound expressed by showing his hand on the front and pointing out towards himself and uttering word Raku taking his hand to his back side. Interpretor interpreted to me that after reaching near Pipal tree, the witness was walking ahead of Rakesh. The witness expressed by expression of his eye as well as hand making the sign of smoking and seeing towards front blunt eyes and taking his towards shoulder and uttering word Raku Bhai as if, he is calling Rakesh interpreted to me that while going on the path, he saw a person smoking in front of him on seeing him, he called his brother Rakesh who was following him. The witness pointed out by his hand towards accused Rajesh who was smoking. The witness further made expression by his hand waiving the same towards him, interpreted to me that the person who was smoking came forward. The witness further uttered by making his hands to express as if, someone is running and uttered word papu, interpreted to me that when Rajesh came forward, accused Papu came running from behind. The witness further made expression by his hand waiving the same towards him, interpreted to me that the person who was smoking came forward. The witness further uttered by making his hands to express as if, someone is running and uttered word papu, interpreted to me that when Rajesh came forward, accused Papu came running from behind. The witness expressed with the signs of his hand as well as murmur of his voice pointing towards accused Rajesh waiving his hands toward himself and pointing towards accused Papu showing his hand towards behind waiving toward his front and joining both his hands made an expression by raising murmur Raku towards one side taking his both hands towards one side, interpreted to me that accused Rajesh came from front side and accused Papu from behind and they both pushed his brother Rakesh alias Raku towards one side of the path. The witness pointed out towards accused Sunil and Manoj Kumar and folded his both hands giving signs as if, they caught somebody. The witness uttered the word Raku and he also gave signs by his both hand equal size, interpreted to me that when Raku was pushed towards one side of the path by accused Rajesh and Papu, Rakesh alias Raku was caught by two persons of equal size namely Sunil and Manoj Kumar identified to be present in the Court. The witness by uttering / murmuring word Papu gave an expression by his hand as if stabbing someone, interpreted to me that when Raku was caught by accused Sunil and Manoj by his both hands, Raku was stabbed by accused Papu. The witness pointed out toward left side of his chest showing stabbing and uttering the word Raku means to interpreted that Raku was stabbed in the right side of his chest. The witness pointed out towards Papu and by his hand expression showed by his hand expression that he was caught from his collar and was stabbed by someone. He uttered/murmur the word Papu. The witness expressed by putting his hand on the upper part of his stomach as if stabbed by someone uttering the word Papu, interpreted to me that after stabbing Raku, Papu accused caught the witness from his collar and gave a stabbing in the upper part of his stomach. He uttered/murmur the word Papu. The witness expressed by putting his hand on the upper part of his stomach as if stabbed by someone uttering the word Papu, interpreted to me that after stabbing Raku, Papu accused caught the witness from his collar and gave a stabbing in the upper part of his stomach. The witness pointed out by shaking his hand which interpreted to me that above accused persons thereafter ran away from the spot. The witness made expression by his hand and face expression that he ran towards his house when he saw accused persons already left the spot. Q.No. 11. The witness was asked by moment (sic) of lips and hand expression as to who met him and as to whom, he disclosed the happening. Ans. The witness by murmur uttered word Pita and pointing towards by his hand the place of occurrence, interpreted to me that when he ran away towards his house, he met PW1 Mahajan Singh to whom he named Rakesh as pointed toward the place of occurrence. Q.No. 12. The witness was tried to understand by the action of hands and lips movement, to mean where he was taken for treatment, after he received stab injury? Ans. The witness murmur hospital. Interpreted to me that he was taken to hospital. Q.No. 13. The witness is shown shirt Ex. P1? Ans. The witness kept his hand on the shirt and also at his own person, interpreted to me that shirt Ex. P1 belongs to him.” 14. From the reply to Q. No. 10, it is apparent that as per the interpreter, Raghubir Singh, the gestures of the witness indicated that the witness-Avinesh @ Abu was walking ahead of Rakesh near the Pipal tree. He also indicated that he saw some person smoking and called out for his brother Rakesh who was following him. He pointed out Rajesh as the person who was smoking and indicated that Rakesh (deceased) came forward. Then accused Rajesh came from the front side and accused Papu came from behind and they pushed the deceased-Rakesh towards one side of the path. After Rakesh was pushed, he was caught by two persons of same size, namely accused Sunil and Manoj Kumar. The witness uttered the word “Pappu” and made a gesture that he was stabbing someone, which was interpreted to mean that the deceased was stabbed by Pappu. After Rakesh was pushed, he was caught by two persons of same size, namely accused Sunil and Manoj Kumar. The witness uttered the word “Pappu” and made a gesture that he was stabbing someone, which was interpreted to mean that the deceased was stabbed by Pappu. Thereafter Rakesh was caught hold by accused-Sunil and Manoj. Rakesh was stabbed by accused-Pappu on the left side of his chest. He also clearly indicated that he himself had been stabbed by accused-Pappu just above the stomach. Thereafter, the accused persons ran away from the spot and then the witness also ran towards his house. Thereafter, when the witness was going to his house, he met PW1, Mahajan Singh and then he again named Rakesh and pointed towards the place of occurrence. He also states that thereafter he was taken to hospital. 15. In this case, all the gestures have been noted down by the Court and we are of the considered view that mere non-administering of oath to the father of the witness would not affect the merits of this case because the Court has noted down the gestures in detail. Furthermore, this witness could speak a little and has named some of the accused persons. It is also clear from his evidence that he knew at least two of the accused from before. 16. Reference, at this stage, may be made to the statement of PW1, Mahajan Singh, father of the deceased. According to him, there was animosity between his son Rakesh and accused-Pawan Kumar on account of the fact that in the chicken corner shop of accused-Pawan Kumar, liquor was served, which led to unsavory remarks being passed by drunken people against the customers of Rakesh and accused Pawan and Suresh had picked up a quarrel with his son on various occasion. 17. As regards the occurrence itself, he states that at about 8.45 p.m., he was at his house. A Pipal tree is situated about 50 meters from his house. He heard the cries of his son-Rakesh Kumar. He then went towards the spot and found that his son was lying in an unconscious condition. Many other villagers also assembled on the spot alongwith torches. His son had received an injury in the left side of his chest with some sharp edged weapon. He heard the cries of his son-Rakesh Kumar. He then went towards the spot and found that his son was lying in an unconscious condition. Many other villagers also assembled on the spot alongwith torches. His son had received an injury in the left side of his chest with some sharp edged weapon. He also states that when he was going towards the Pipal tree, he also met PW8, Avinesh @ Abu (his nephew), who was also having an injury on the right side of his chest with some sharp edged weapon. Abu conveyed to him with his expressions and pointed out towards the Pipal tree that Rakesh @ Raku was lying there in an injured condition. Rakesh was in critical condition. He was shifted to the Hospital at Sarkaghat, but unfortunately did not survive. Thereafter, this witness lodged FIR, Ex. PW1/A. 18. This witness has been cross-examined at length. No doubt, there are some improvements in his statement with regard to proving the animosity between the parties and he seems to have exaggerated some of the things to prove the inimical relations. But with regards to the occurrence in question, the only question put to him is that when he was going towards Pipal tree, Abu had not named any one of the assailants. 19. FIR was lodged by PW1, Mahajan Singh, father of the deceased, at about 11.35 p.m. In this FIR, it is clearly mentioned that when deceased Rakesh alongwith his cousin Avinesh @ Abu was coming home, he heard the cries of Rakesh and he and other members of the family and villagers gathered at the spot. On the way they met Avinesh who with his gestures indicated that he and Rakesh had been stabbed and that he could recognize the said persons. It is apparent from a reading of the FIR that at that time there was only suspicion against the accused persons. 20. Mr. M.S. Guleria, learned counsel for accused, has vehemently contended that in case PW8, Avinesh @ Abu, had recognized any one of the assailants, he would have informed his father or uncle about this fact immediately after the occurrence and in his statement, this has not been mentioned. He also submits that the prosecution withheld the statement of PW8 recorded under Section 161 Cr.P.C., Mark DA, in which again he had not named the assailants. He also submits that the prosecution withheld the statement of PW8 recorded under Section 161 Cr.P.C., Mark DA, in which again he had not named the assailants. He further contends that in case the statement of Avinesh @ Abu is discarded, then there is no evidence against the accused. 21. Most of the witnesses have been examined by the prosecution to show that there was animosity between the accused and the deceased. We are not going into this aspect of the matter because if we believe the statement of PW8, Avinesh @ Abu, then motive would become irrelevant and if we disbelieve his version, then the accused definitely cannot be convicted. It would, however, be pertinent to mention that all these witnesses have stated that the relations between the accused, especially Pawan Kumar, and deceased-Rakesh were strained. 22. It would be pertinent to refer to the statement of PW20, Dr. Vikas Gupta. He states that on 4th September, 2000, at about 10.00 p.m., two persons in injured condition were brought by the villagers. Both these persons had received stab wounds. One of the injured was deaf and dumb and the other was found to have died. He informed the police who came to the hospital. He states that he examined PW8, Avinesh @ Abu, who was conscious and he suffered a stab injury. There was no other injury on his person. He, however, did not disclose whether the injury was simple or grievous. 23. PW15, Dr. Ashok Chauhan, states that he conducted the post mortem on deceased Rakesh Kumar and he found a punctured wound on left side of the chest over nipple. According to him, Rakesh Kumar died due to the bleeding from the lungs. He states that the cause of death was stab wound inflicted on the left side of chest over nipple. He admitted in cross-examination that khukhari, which was shown to him, could not be the weapon of offence. 24. On perusal of the entire evidence recorded above and after having heard learned counsel for the parties, it stands proved beyond any manner of doubt that deceased-Rakesh died because of stab wound inflicted upon him. PW8, Avinesh @ Abu, also suffered a stab injury in his stomach. As has been pointed out above, PW8, Avinesh @ Abu, knew and recognized accused-Pawan Kumar and accused-Suresh Kumar @ Pappu. PW8, Avinesh @ Abu, also suffered a stab injury in his stomach. As has been pointed out above, PW8, Avinesh @ Abu, knew and recognized accused-Pawan Kumar and accused-Suresh Kumar @ Pappu. He did not know the other persons but could have recognized them. 25. At this stage, we may also mention that though great emphasis was laid by Mr. M.S. Guleria on the statement of this witness (PW8) recorded under Section 161 Cr.P.C., we cannot place any reliance on the same since this witness was not confronted with the statement. It was urged before the learned trial Court and, in fact, the learned trial Court held, that this document had been withheld by the police. However, when we ourselves went through the entire record, we found original of Ex. DA on record in the challan file of the Court. Therefore, it cannot be said that this document was withheld. This document was produced by the counsel for the accused and no explanation was given from where they got this document. Be that as it may, since the document is on the file, it cannot be said to have been withheld and, therefore, the entire reasoning of the learned trial Court in accepting this document is flawed. Therefore, we are not at all taking Ex. DA into consideration. 26. The learned trial Court acquitted the accused mainly on the ground that since PW8, Avinesh @ Abu, had not identified the accused at the time of incident, a Test Identification Parade (TIP) should have been conducted. We are of the considered view that as far as accused-Manoj Kumar, Sunil Kumar and Rajesh Kumar, who were not known to the witness, are concerned, the learned trial Court was justified in holding that the said accused could not be convicted in the absence of a Test Identification Parade especially when PW8 did not know these accused prior to the occurrence. However, as far as accused-Pawan Kumar and Suresh Kumar @ Pappu are concerned, they were known to this witness and hence there was no need of a Test Identification Parade. 27. It has been urged that PW8, Avinesh @ Abu, would have told his father or PW1 the name of the assailant, if he could have actually recognized them. However, as far as accused-Pawan Kumar and Suresh Kumar @ Pappu are concerned, they were known to this witness and hence there was no need of a Test Identification Parade. 27. It has been urged that PW8, Avinesh @ Abu, would have told his father or PW1 the name of the assailant, if he could have actually recognized them. We are dealing with a person here who is a young boy aged about 15 years who had himself been stabbed and who had seen his cousin being stabbed. He was running from the site of the incident towards his house. Such a person may not have been able to express himself fully at the time when he met PW1, Mahajan Singh, but later he named the accused. 28. We are also of the view that the statement of this witness has a ring of truth about it. It is apparent that in Court, he narrated what he had actually seen. If he had been tutored, he would have named Pawan Kumar as one of the assailants also. He has not named Pawan Kumar but has named the other accused. We may give the benefit to accused-Manoj Kumar, Sunil Kumar and Rajesh Kumar because this witness did not know them earlier and to this extent his identification in Court may be treated to be doubtful. But as far as accused-Suresh @ Pappu is concerned, the statement of PW8 clearly shows that he knew Suresh @ Pappu from before and recognized him. This witness pointed out towards the left side of his chest, uttered the word “Raku” and gave the gesture of stabbing, which mean that Rakesh @ Raku was stabbed on the left side of the chest, though it is wrongly recorded in the statement as right side of the chest. Even with regard to himself, he stated that he was caught by his collar and stabbed on his stomach by Pappu. We have no reason to doubt this portion of the statement of PW8. 29. We are, therefore, of the considered view that Suresh Kumar @ Pappu used a sharp edged weapon to stab both, deceased Rakesh Kumar @ Raku as well as PW8, Avinesh @ Abu. The version of PW8 is supported by the medical evidence. We have no reason to doubt this portion of the statement of PW8. 29. We are, therefore, of the considered view that Suresh Kumar @ Pappu used a sharp edged weapon to stab both, deceased Rakesh Kumar @ Raku as well as PW8, Avinesh @ Abu. The version of PW8 is supported by the medical evidence. However, there is no murmur in the statement of this witness with regard to Pawan Kumar being present at the scene of occurrence and we are of the considered view that accused-Pawan Kumar cannot be convicted on mere suspicion merely on the ground that relations between him and the deceased were not cordial. 30. In view of the above discussion, we dismiss the appeal as far as accused-Pawan Kumar is concerned, but allow the same qua accused-Suresh Kumar @ Pappu. He is held guilty of stabbing both, Rakesh Kumar and Avinesh Kumar. He stabbed Rakesh Kumar on the vital organ of the body, i.e. chest, and would have known that such injury could cause death. However, the injury on the person of Avinesh is in the region of the stomach and it is also not clear whether the injury was simple or grievous. It is, however, clear that the injury was caused with a sharp edged weapon. He, however, gave only one single blow to the deceased as well as Avinesh. Keeping all these factors into consideration, we are of the view that the accused-Suresh Kumar is guilty of having committed an offence punishable under Section 304, Part-I, IPC and is also held guilty of having committed an offence punishable under Section 324 IPC in respect of the injury caused to Avinesh. The bail bonds of accused-Suresh Kumar @ Pappu are cancelled and he be produced before us on 9th January, 2013, for being heard on the issue of quantum of sentence.