JUDGEMENT : Per, Shree Chandrashekhar, J. Dated: 7th July, 2020 (Oral) Jagarnathpur P.S Case No. 297 of 2010 was lodged on 10.08.2010 against Sudhir Indwar, Satish Sahu and Moto Lakra @ Motka Loakra under section 376(2)(g) of the Indian Penal Code for committing gang rape upon the victim girl (hereinafter referred to as “P”). 2. In Session Trial No. 79 of 2011/T.R. No. 57 of 2013, both the appellants have faced the trial on the charge under section 376 (2)(g) of the Indian Penal Code; the trial against co-accused, namely, Satish Sahu who was found juvenile was separated. 3. The learned Additional Judicial Commissioner-III-cum-F.T.C. (CAW), Ranchi, has held that the victim has identified the appellants as the persons who have sexually ravished her; that the evidence of sexual intercourse might have been washed off; and, moreover, a conclusion whether rape was committed or not can be drawn by the Court and not decided by the medical opinion. The learned trial Judge has also found that the testimony of “P” inspires confidence and appears to be trustworthy. 4. Accordingly, the appellants were convicted and sentenced to R.I for Ten years and fine of Rs.5,000/-under section 376 (2) (g) IPC. 5. During the trial, the prosecution has examined five witnesses; “P”, the victim girl, was examined as PW-3. PW-1, Jagat Prakash Rai, is the Assistant Sub-Inspector of Police who was accompanied by Panch Ratan Yadav-PW-2, a constable, while they were on patrolling duty. Nilina Tirkey, the investigating officer, has examined herself as PW-4 and Dr. Geeta Kumari who has clinically examined “P” was produced as PW-5. The appellant, namely, Moto Lakra @ Motka Loakra has examined his sister-in-law as a defence witness to establish that in the fateful night he was at home. 6. The case of the prosecution is that past midnight of 09.08.2010 the police patrolling party found “P” coming from Birsa Chowk. Seeing the police vehicle she waived and the patrolling party stopped near her. She made some gestures which suggested that she was sexually assaulted by three persons. The police party asked her to sit in the patrolling vehicle and on her indication it went to a house near Station road and on her identification one person who came out from the house was apprehended by the police. She made some gestures which suggested that she was sexually assaulted by three persons. The police party asked her to sit in the patrolling vehicle and on her indication it went to a house near Station road and on her identification one person who came out from the house was apprehended by the police. He disclosed his name Sudhir Indwar and on questioning stated before the police that he is a tenant in the house. He admitted his guilt and disclosed the name of co-accused, namely, Satish Sahu and Moto Lakra @ Motka Loakra. Immediately thereafter the police had gone to the house of Satish Sahu but he was found absconding. The police patrolling party brought the father of Satish Sahu and the victim girl to the police station and on the basis of the written statement of the Assistant Sub-Inspector of Police a case under section 376 (2)(g) IPC was lodged against the above-named accused persons. 7. In a prosecution under section 376 IPC, statement of the prosecutrix may alone form the basis for conviction of an accused and absence of injury on the external or internal part of the victim girl and absence of spermatozoa may not be conclusive and clinching factors, if testimony of the victim girl inspires confidence and is of an unimpeachable character. In “State (Govt. of NCT of Delhi) Vs. Pankaj Chaudhary” reported in 2018 SCC Online SC 2256, the Hon’ble Supreme Court has held that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. It has been further observed that: “if the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming”. However, at the same time we find a word of caution in many decisions of the Hon’ble Supreme Court observing that the testimony of the prosecutrix cannot be accepted as gospel truth in every case. For example, in “Tameezuddin Vs. However, at the same time we find a word of caution in many decisions of the Hon’ble Supreme Court observing that the testimony of the prosecutrix cannot be accepted as gospel truth in every case. For example, in “Tameezuddin Vs. State (NCT of Delhi)” reported in (2009) 15 SCC 566 , the Hon’ble Supreme Court has held that: “it is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter”. In yet another decision – “Raja Vs. State of Karnataka” reported in (2016) 10 SCC 506 – the Hon’ble Supreme Court has observed as under : “34. This Court in Raju, while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in section 114-A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113-A and 113-B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the persons charged.” 8. PW-5, Dr. PW-5, Dr. Geeta Kumari who has clinically examined “P” on 10.08.2010 at 6:00 p.m at Sadar Hospital, Ranchi has found no mark of any injury on the person of “P” and no injury in her private parts. The pathological report which was received on 11.08.2010 has revealed that no spermatozoa, dead or alive, was found. PW-5 has rendered an opinion that no evidence of sexual intercourse was found by her at the time of examination of “P”. PW-4, the investigating officer, has admitted that no independent witness has stated before her that “P” was sexually assaulted. 9. Another remarkable feature of the case is that “P” was deaf and dumb. In her examination-in-chief she has stated that she was sleeping near the Railway Station and the accused persons woke her up by throwing stone. They brought her their home, locked the door and thrashed her on the ground and Moto Lakra @ Motka Loakra put a ring in her finger. Thereafter, they undressed her and sexually ravished her one after another. She has stated that after ravishing her all three accused persons were roaming there (Wahin Per Ghum Raha Thaa). Thereafter, the police arrived there and she told the police about the incident. In her cross-examination she has stated that when she was at Station there were 4-5 other ladies sitting near her and while she was being taken away by the accused persons to a house she came across another lady. However, no one has seen “P” being taken to a house by the accused persons. She is deaf and dumb but she has not offered any resistance or made any gesture to the people around the Railway Station while she was forcibly taken away by the accused persons. Her statement in the Court was recorded with the help of interpreter who was working as Headmaster in the Deaf and Dumb School, Niwaranpur. In his cross-examination he has stated that he has taken ten months' training, however, he has not taken oath before he interpreted the statement of “P” in the Court and gave his statement. This mistake by itself may not seriously impair the testimony of “P”, for the omission to administer oath or affirmation does not invalidate any evidence (see, section 7 of the Oaths Act, 1969) and as held by the Hon’ble Supreme Court in “Rameshwar Vs. This mistake by itself may not seriously impair the testimony of “P”, for the omission to administer oath or affirmation does not invalidate any evidence (see, section 7 of the Oaths Act, 1969) and as held by the Hon’ble Supreme Court in “Rameshwar Vs. The State of Rajastahan” reported in AIR 1952 SC 54 , the main purpose of administering oath to a person is to render him liable to prosecution if he gives false evidence and at the same time to impress upon the witness the solemnity of the occasion and the duty of speaking truth. 10. There are references about deaf and dumb persons in Encyclopaedia Britannica (Volume-7) and Encyclopaedia Americanaca (Volume-24) and the story of “Mehar Baba”, an Indian religious figure, who gave voluminous dictations to his disciples by gestures, are mentioned in the judgment of “Meesala Ramakrishan Vs. State of A.P” reported in (1994) 4 SCC 182 . What transpires from literature, legal glossary and experience in life is that gesture is a recognised mode of expression which is no less than speech. Therefore, a person can be a witness not only for giving oral evidence but also by producing document or making gestures and evidence of a witness by gestures is admissible in evidence and the only requirement in law is provided under section 119 of the Evidence Act and such evidence falls under section 3 of the Evidence Act. However, as held in “State of Rajasthan Vs. Darshan Singh” reported in (2012) 5 SCC 789 , when a deaf and dumb person is examined in the Court the Court has to exercise due care and caution and before a deaf and dumb person is examined the Court must ascertain that he/she possesses the requisite amount of intelligence and understands the nature of the oath. It has been held that if the witness can read and write it is most desirable to take assistance of an interpreter, record the signs and note interpretation of the signs and then to record the evidence as interpreted by the interpreter. Section 119 of the Evidence Act provides that a witness who is unable to speak may give his evidence in any other manner in which he could make it intelligible, as by writing or by signs and the evidence so given shall be deemed to be oral evidence. 11. Section 119 of the Evidence Act provides that a witness who is unable to speak may give his evidence in any other manner in which he could make it intelligible, as by writing or by signs and the evidence so given shall be deemed to be oral evidence. 11. A glance at the testimony of “P” recorded in the Court would indicate that the learned Judge who has recorded her statement through an interpreter has not taken care to ascertain whether she possesses the requisite intelligence. “P” has admitted in her cross-examination that she has studied upto Class-1 and she can write her name; she has signed the attendance register in the Court. In “Darshan Singh”, the Hon’ble Supreme Court has also observed that if a deaf and dumb witness is able to read and write it is desirable to record the statement by giving questions in writing and seeking answers in writing. “P” is not illiterate and she has signed the attendance register in the Court, still, the procedure as indicated in Darshan Singh (supra) was not followed by the learned trial Judge. 12. PW-1 who has given a written report on the basis of which Jagarnathpur P.S. Case No. 227 of 2010 was lodged has admitted in his cross-examination that he does not know the language of deaf and dumb person and he has not made any enquiry from “P” about where from she had come and of which place she was resident of. PW-4, the investigating officer, has also admitted in her cross-examination that whatever was said by “P” by gestures she could not understand. She has further stated that she does not know the language of deaf and dumb and she has not taken help of any expert for recording the statement of “P”. These witnesses have themselves created serious doubt on correctness of the statement through gestures of “P”. We find that the testimony of PW-1, PW-2 and PW-4 creates further doubt on the prosecution story of sexual assault on “P” by the appellants and Satish Sahu. PW-1 and PW-2 both have deposed in the Court that in the night of 09.08.2010 they started from the police station on patrolling duty, they came to Hatia Railway Station past midnight and it was around 1:00 a.m when they were returning from Hatia Railway Station they saw “P” coming from Birsa Chowk. PW-1 and PW-2 both have deposed in the Court that in the night of 09.08.2010 they started from the police station on patrolling duty, they came to Hatia Railway Station past midnight and it was around 1:00 a.m when they were returning from Hatia Railway Station they saw “P” coming from Birsa Chowk. But beyond, this there are serious inconsistencies in their statements regarding what has happened thereafter. PW-1 has deposed in the Court that “P” herself had gone to a house, herself opened the door, gone inside a room and put on the lights. He has further deposed that one person was found sleeping in the room and on the gesture of “P” he could know that that person has committed rape upon her. However, PW-2 has deposed in the Court that after “P” got the door opened one person came out from a room and on identification of “P” he was brought to the police station. PW-2 has also stated that his statement was not recorded by the investigating officer. PW-4, the investigating officer of this case, has stated that she tried to record statement of the persons around the place of occurrence, however, no one came forward. Her testimony in the Court reflects that investigation in this case was completely casual and done in slipshod manner. She has not even recorded statement of the owner of the house and contrary to the written report of PW-1 and testimony of PW-1 and PW-2 who have deposed in the Court that in the night of 10.08.2010 only Sudhir Indwar was arrested by the patrolling party, in paragraph no. 47 of her cross-examination the investigating officer has stated all three accused persons were arrested by the police patrolling party and, that too, from the place of occurrence. These inconsistencies in the evidence of PW-1, PW-2 and PW-4 may appear minor at the first blush, however, when seen in the context of the medical evidence and testimony of “P”, these inconsistencies in their evidence cannot be ignored. 13. The entire prosecution story weaved by PW-1 in his written report and evidence of the witnesses in the Court make registration of the First Information Report suspicious and mysterious. In our opinion, the prosecution has failed to produce cogent and consistent evidence on complicity of the accused persons in the occurrence. 13. The entire prosecution story weaved by PW-1 in his written report and evidence of the witnesses in the Court make registration of the First Information Report suspicious and mysterious. In our opinion, the prosecution has failed to produce cogent and consistent evidence on complicity of the accused persons in the occurrence. The prosecution has failed to connect the appellants with the alleged offence and the attending circumstances and the medical report do not establish the charge of gang rape under section 376 (2) (g) IPC against the appellants. In the aforesaid state of affairs, we hold that it is not proper to convict the appellants on the sole testimony of “P”. 14. Accordingly, the judgment of conviction dated 03.07.2013 and the order of sentence dated 08.07.2013 of R.I for Ten years and fine of Rs.5,000/-inflicted upon each of the appellants under section 376(2)(g) IPC in Session Trial No.79 of 2011/T.R. No.57 of 2013 are set-aside. 15. The appellant, namely, Sudhir Indwar in Criminal Appeal (DB) No. 698 of 2013 and the appellant, namely, Moto Lakra @ Motka Loakra in Criminal Appeal (DB) No. 629 of 2013, who are in custody, shall be released forthwith, if not required in connection to any other criminal case. 16. In the result, Criminal Appeal (DB) No.698 of 2013 and Criminal Appeal (DB) No.629 of 2013 are allowed. 17. Let a copy of the judgment be transmitted to the court concerned and the concerned jail superintendent through 'FAX'. 18. Let lower-court records be sent to the court concerned forthwith.