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2023 DIGILAW 1162 (RAJ)

Vishnu Kumar v. State of Rajasthan, Through PP

2023-05-24

KULDEEP MATHUR

body2023
ORDER 1. The present bail applications have been filed under Section 439 Cr.P.C. The petitioners have been arrested in connection with F.I.R. No.78/2022, registered at Police Station Pratapnagar, District Bhilwara, for the offences punishable under Sections 376(2)(L) IPC and Section 5(J)(2)/6, 5(K)(G)/6 of the POCSO Act. 2. Heard learned counsel for the petitioners and learned Public Prosecutor. Perused the material available on record. 3. As per prosecution, the prosecutrix who is deaf and dumb was subjected to sexual assault- rape by the present petitioners at Mataji ka Kheda in the early morning near a pond. The police after investigation arrested the petitioners in connection with the alleged crime and filed charge sheet against them for offences under Section 376(2)(L) IPC and Section 5(J)(2)/6, 5(K)(G)/6 of the POCSO Act. 4. Learned counsel for the petitioners vehemently submitted that the statement of the prosecutrix (P.W.7) has been recorded before competent criminal court on 20.07.2022, in utter disregard of provisions contained in Section 119 of the Indian Evidence Act. Learned counsel for the petitioners submitted that since, the statement of prosecutrix (P.W.7) has been recorded in utter disregard to Section 119 of the Indian Evidence Act, the same are not admissible in the eyes of law and thus, there remains no evidence available on record connecting the present petitioners with the alleged crime. 5. Learned counsel vehemently submitted that the Court in order to enable itself to record statements of the prosecutrix called a signs language specialist namely Vidya Sharma, however, she shown her inability to assist the Court in the matter, as prosecutrix who has not studied in the school established for students with special needs was unable to understand her signs. Learned counsel submitted that entire statement of the prosecutrix were recorded as per the interpretation done by her sister Kamla and father Narayan. 6. Learned counsel submitted that statement of prosecutrix (P.W.7) communicated by gestures, recorded as per the interpretation offered by father and sister of the prosecutrix being interested interpreters cannot be relied upon and makes the evidence unreliable. 7. Lastly, learned counsel for the petitioner submitted that as per the language used in Section 119 of Indian Evidence Act, in case, witness is unable to communicate verbally, the Court shall take assistance of an interpreter or a special educator in recording the statement and such statement shall be videographed. 7. Lastly, learned counsel for the petitioner submitted that as per the language used in Section 119 of Indian Evidence Act, in case, witness is unable to communicate verbally, the Court shall take assistance of an interpreter or a special educator in recording the statement and such statement shall be videographed. However, in the present case, no videography of the statement was recorded. 8. Reliance was placed on the judgment of Hon'ble Supreme Court of India in the case of Kumbhar Musa Alib Vs. State of Gujarat reported in (1996) AIR (Gujarat) 101 and in the case of State of Rajasthan Vs. Darshan Singh @ Darshan Lal (Criminal Appeal No.870 of 2007), decided on 21.05.2012. 9. On these ground, he implored the Court to enlarge the petitioners on bail. 10. Learned Public Prosecutor opposed the bail application. 11. Section 119 of the Indian Evidence Act, reads as under:- '119. Witness unable to communicate verbally. - 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. Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be video graphed.' 12. Admittedly, the prosecutrix is a deaf and mute person. She communicated through gestures only. The competent criminal court at the time of recording of her statement called a signs language specialist to assist it in recording of the statements. The signs language specialist, however shown her inability to do the same. It is further evident that the statements of prosecutrix were recorded with the help of her sister and father who are undoubtedly interested in the present case. 13. Hon'ble the Supreme Court in the case of State of Rajasthan vs. Darshan Singh @ Darshanlal reported in (2012) 5 SCC 789 held that in case the witness is not able to read and write, his/her 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 same surroundings but should not have any interest in the case and he should be administered oath. In case, the interpreter is provided, he should be a person of same surroundings but should not have any interest in the case and he should be administered oath. (Emphasis supplied) 14. From the perusal of the statement of prosecutrix, it appears that learned trial court has not been videographed the gestures made by her during the course of statements, which prima facie is in contravention of the proviso to Section 119 of Indian Evidence Act, 1872. Further, there is no mention as to how the gestures of prosecutrix were interpreted by her sister and father. 15. Having regard to the totality of the facts and circumstances of the case, so also the language / import of Section 119 of the Indian Evidence Act, without expressing any opinion on the merits of the case, this Court is inclined to enlarge the accusedpetitioners under Section 439 Cr.P.C. 16. This Court also finds that the petitioners' prayer for bail cannot be deferred because the competent trial court had failed to follow the procedure contained in Section 119 of the Indian Evidence Act. 17. Accordingly, the bail applications filed under Section 439 Cr.P.C. are allowed and it is directed that petitioners Vishnu Kumar S/o Shri Brijmohan Kalal and Vishnu Kumar S/o Shri Brijmohan Kalal & Puran Singh @ Pintu Singh S/o Amar Singh shall be released on bail in connection with F.I.R. No.78/2022, registered at Police Station Pratapnagar, District Bhilwara provided each of them executes a personal bond in a sum of Rs.50,000/- with two sound and solvent sureties of Rs.25,000/- each to the satisfaction of learned trial court for their appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial subject to satisfying the following conditions:- a) The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions: b) The petitioner undertakes not to contact the complainant and prosecutrix so also the witnesses to threaten them or exert any pressure d) The petitioner shall not hamper the investigation. e) The petitioner undertakes not to make any inducement, threat or promise, directly or indirectly, to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence. e) The petitioner undertakes not to make any inducement, threat or promise, directly or indirectly, to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence. f) The petitioner undertakes to attend the trial. 18. Considering the seriousness of accusations against petitioners, this Court in order to secure the ends of justice and prevent abuse of process of law, deems it just and proper to exercise inherent powers under Section 482 Cr.P.C. It is directed that the evidence of prosecutrix (P.W.7) recorded by the trial court is hereby expunge. The trial court is further directed to summon the victim/prosecutrix (P.W.7) afresh for recording of her statement keeping in view the procedure contained in Section 119 of Indian Evidence Act and Section 36 of Protection of Children from Sexual Offences Act, and so also the dictum laid by Hon'ble the Supreme Court in the case of Darshan Singh @ Darshanlal (supra). 19. In case, trial court finds any difficulty in arranging services of expert of signs language, then it may contact Rajasthan State Legal Services Authority, Jodhpur/Jaipur which shall provide services of expert of signs language, to facilitate the recording of the statement of prosecutrix. The T.A., D.A. and other expenses, if any of the signs language expert shall be borne by the Rajasthan State Legal Services Authority, Jodhpur/Jaipur 20. The trial court is directed to expedite the trial and complete the same within a period of six months from the date of this order. 21. The registry is directed to forward a copy of this order to the trial court forthwith.