GIRISHA @ GIRISWAMY v. SRI. B.M. KENCHEGOWDA, ADVOCATE)

impugned judgment passed by the trial Court.

4. It is the case of prosecution that the first informant has four daughters. The second and third daughters are dumb by birth. The victim is her third daughter. She studied upto 7th standard in Thalegere. She was admitted to 8th standard at one Sri yadhushyla High School in Melekote. However, she discontinued her - 3 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 studies. She was residing along with her mother and sisters. On 03.03.2011, her mother/first informant had been to Kebbekoppalu village and returned to her village on 03.03.2011 at about 7.00 p.m. Noticing the victim sleeping in the house, she enquired with her elder daughter, who informed her that on 02.03.2011 at about

7.30 p.m., when they had gone to Tannuraya Temple, accused Nos.1 and 2 took the victim towards lake side and attempted to commit rape on her.

5. In Ex.P1 lodged by victim’s mother, she has stated that when she enquired with her daughter/victim about the incident, through sign language, she informed her that the accused tried to commit rape on her and when she screamed, both the accused ran away.

6. On the basis of a written complaint – Ex.P1 lodged by victim’s mother on 05.03.2011, a case was registered at Melekote Police Station by the PSI – PW.6 against accused Nos.1 and 2 for the offence punishable - 4 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 under Section 376, 511 r/w 34 of IPC and Section 3(1)(xi) of SC/ST (POA) Act.

7. The investigation was taken over by PW.7 – Dy.SP. He prepared the spot mahazar – Ex.P6 in the presence of panchas. On completion of investigation he filed the charge sheet.

8. Charges were framed against accused Nos.1 and 2 for the offence punishable under Section 354 of IPC and against accused No.2 for the offence punishable under Section 3(1)(xi) of SC/ST (POA) Act, 1989.

9. The trial Court vide impugned judgment, was pleased to acquit accused No.2, however, convicted accused No.1/appellant for the offence punishable under Section 354 of IPC and imposed sentence against him as noted supra.

10. The prosecution in all examined 7 witnesses and got marked 9 documents to establish its case. The defence of the accused was one of total denial; however, - 5 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 no defence evidence was led. The trial Court has come to the conclusion based on the evidence led by the prosecution, particularly the evidence of PWs.1 to 4 that the prosecution has established the guilt of accused No.1 beyond reasonable doubt.

11. The impugned judgment has been challenged on several grounds. It is contended that, not only there is an inordinate delay in lodging the complaint, but even the evidence of PW.1 to PW.4 does not establish the guilt of the accused beyond reasonable doubt. The learned counsel appearing for appellant has argued that, admittedly, the victim is dumb by birth and the procedure followed by the trial Court to record her evidence through an interpreter is not in accordance with law and it is contrary to the law laid down by the Hon’ble Apex Court in the case of State of Rajasthan V. Darshan Singh reported in 2012(5) SCC 789. Further, he would contend that at the time of recording the evidence of the victim whose evidence was translated by the interpreter, - 6 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 no oath was administered to the interpreter. He contended that there are contradictions in the evidence of PWs.1, 2 and 4. Further, the victim was able to read and write and initially she is alleged to have narrated the incident in writing, but no such writing has been produced and marked. Her evidence was also not recorded through writing. He contended that the judgment passed by the trial Court has resulted in miscarriage of justice and accordingly, sought to allow the appeal and acquit the accused.

12. Per contra, the learned High Court Government Pleader has contended that the victim’s evidence has been recorded in accordance with law. Her evidence is further corroborated by the evidence of PWs.1 and 2, her mother and elder sister. Further, the prosecution has also got examined PW.3, the interpreter through whom the victim’s evidence was recorded. He contended that the trial Court based on the above evidence has rightly convicted the - 7 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 appellant for the offence charged against him. He therefore sought to dismiss the appeal.

13. The incident is alleged to have taken place on

02.03.2011 about 7.30 p.m. As per Ex.P1 lodged by victim’s mother, she was not present in the village when the incident took place. She had been to her relative’s house in Kebbekoppalu village in view of Maha Shivaratri festival. When she returned home on the next day at about 7.00 p.m., noticing her third daughter sleeping in the house, she enquired with her elder daughter, who informed her about the incident. She stated that when they had gone to Tannuraya Temple on 02.03.2011 at about 7.30 p.m., both accused Nos.1 and 2 attempted to commit rape on the victim.

14. In Ex.P1, it is stated that when the complainant enquired with her daughter about the incident she informed through sign language that the accused have pushed her on the ground and attempted to commit rape on her. - 8 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013

15. The complaint is lodged on 05.03.2011. It is stated that the incident was brought to the notice of the village head by name Ramakrishna Gowda and since he did not respond, the complaint was lodged belatedly. Even in the evidence of the complainant, examined as PW.1, she has stated that the matter was informed to the village head/CW.7 and since the accused did not attend the panchayat, she lodged the complaint to the police.

16. Learned counsel for appellant has contended that CW.7 – Ramakrishna Gowda has not been examined by the Court and further the persons who participated in the panchayat were also not examined and therefore, the explanation given by PW.1 for the delay in lodging the complaint is not established. The said contention cannot be accepted, considering the fact that the incident has taken place in a remote village and also considering the nature of offence alleged to have been committed against the victim, a dumb girl by birth. - 9 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013

17. In her evidence, PW.1 has stated that her daughter is dumb by birth and she has studied upto 8th Standard. On the date of incident, she had been to her relative’s house in Hunsur Village and at that time her children were in her village. Her elder daughter called her over phone and asked her to come to the village immediately and therefore, she returned to the village at about 1.00 p.m. At that time, noticing her daughter (victim) sleeping, she enquired with her elder daughter, who informed about the incident. Then, she enquired with the victim who narrated the incident in writing. Since, she could not read she showed the said writing to her elder daughter who read its contents.

18. PW.1 has stated that when she enquired with her children, she was informed by them that when they had been to Tannuraya Temple, both the accused took the victim near the land of one Vairamudi Bhovi, pulled her clothes and held her etc., and when she screamed the other daughters rescued her. - 10 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013

19. PW.2 is the elder sister of the victim. She has stated that all of them had been to Tannuraya Temple and when they were doing puja, the victim was found missing and while searching for her, heard the screaming of the victim, at about 7.45 p.m., and when they went near the land of Vairamudi, they saw both the accused as well as CW.3 and her sister was weeping. Thereafter, both the accused and CW.3 went away from there. After returning home when she enquired with her sister, she through sign language informed her that the accused touched her chest, body and also scratched her and pulled her clothes.

20. The victim is examined as PW.4. She is dumb by birth. The prosecution has taken the assistance of an interpreter to examine the victim. The said interpreter is examined as PW.3. He is working in a Government School in Tilaknagar, Mysuru for deaf children as a teacher. He has stated that after translating the statement of the victim given through sign language he has given a report – Ex.P2 to the Police. He has stated that the victim girl - 11 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 informed him through sign language that, when she had been to attend the nature’s call three persons came and held her and closed her mouth tightly. Thereafter, she did not say anything.

21. In her evidence, the victim girl, examined as PW.2 has given answers to the questions put by the interpreter. A perusal of her evidence goes to show that initially she pointed her fingers at both the accused and kept her fingers on the head and nodded her head and then pointed towards the door and again she pointed her finger at the accused and closed her eyes. Then showed as if she was removing the veil and squeezing and showed her finger at accused No.1.

22. In the chief examination of PW.1 she has stated that the victim has studied upto 8th standard. When she enquired with her about the incident, she wrote down in writing and gave it to her and then she gave the said writing to the police. The prosecution has not produced and marked the said writing of the victim, said to have - 12 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 been given to the police by PW.1. Even PW2, in her cross-examination has stated that the victim narrated the incident in writing and then showed to them and they gave the same to the police, whereas, the I.O.-PW6 has denied in his cross-examination having received any such writing of the victim. When both PWs.1 and 2 have categorically stated that the victim has written down in writing about the incident and they gave the same to the police, non- production of the same raises a doubt about the alleged incident, as projected by the prosecution.

23. Secondly, according to PW2, the incident took place when she along with her sisters had been to Thannuraya Temple. In her cross-examination, PW4 has denied that she had been to temple. She has stated that she had been to attend the call of nature. The spot mahazar is marked as Ex.P6. The panch witness-PW5 to the spot mahazar has turned hostile and not supported the case of prosecution. - 13 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013

24. The learned trial Court placing reliance on the evidence of PW4-victim girl who pointed her finger at accused No.1, has come to the conclusion that the prosecution has established the guilt against the said accused, whereas accused No.2 was acquitted since the victim did not point her fingers at him.

25. According to PW3, i.e., the interpreter, he recorded the statement of the victim given through sign language as per Ex.P2. He has stated, as per Ex.P2, when the victim had been to attend the call of nature, three persons held her and closed her mouth. He has stated that thereafter, the victim did not say anything and the names of the accused or the identity of the accused who held her and closed her mouth was not mentioned.

26. The question to be decided is as to how far the evidence of PW4, dumb witness, is admissible to record a conviction against the accused.

27. In Darshan Singh’s case (supra), it is held that if a deaf and dumb witness is able to read and write, - 14 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 it is desirable to record the statement giving questions in writing and seeking answers in writing. In case such witness is not able to read and write, statement can be recorded in sign language with the aid of an interpreter. In case interpreter is provided, he should be a person of same surrounding but should not have any interest in the case and he should be administered oath. Further, statement of a deaf and dumb witness recorded with the aid of interpreter who is interested in trial without administering oath to him, would render evidence unreliable.

28. In the case on hand, admittedly the victim had studied upto 8th Standard and she was able to read and write. Her mother and sister examined as PWs.1 and 2, have categorically stated that the victim has narrated the incident in writing and gave it to them and in turn they gave the said writing to the police. Hence, it can be safely come to the conclusion that the victim was able to read and write and she had narrated the incident in writing. - 15 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 The prosecution has suppressed the same. Secondly, when the victim was able to read and write, as held by the Hon’ble Apex Court, it was desirable to record her statement giving questions in writing and seeking answers in writing but the same is not done. Competency of the interpreter-PW3 cannot be doubted. However, according to him, initially, the victim has stated that three persons held her and closed her mouth and thereafter she did not say anything about the incident. According to prosecution, the incident took place when the victim and her sisters had been to Thannuraya Temple whereas, the victim in her version has stated that she had been to nature’s call near her house.

29. Another important aspect is that, questions were put to the victim by the interpreter, to which the victim gave answers by sign language. However, the same was not explained by the interpreter. He has not stated as to what is the meaning of the signs shown by the victim. Further, in her evidence, PW2 has stated that in - 16 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 the incident the clothes of the victim were torn and she had given the clothes to the police. However, the same were not seized. Contrary to the evidence of PW.2, the Investigating Officer – PW.7 has stated that the torn chudidar was not produced before him.

30. Having re-appreciated the entire evidence on record, this Court is of the considered view that the prosecution has failed to establish the guilt of the appellant/accused No.1 beyond reasonable doubt. Accused is entitled to benefit of doubt. Accordingly, the following: ORDER i. Appeal is allowed. ii. The Judgment and Order dated 12.12.2012 passed by the Additional District and Sessions Judge, Mandya, Spl.C.C.No.23/2011 convicting sentencing appellant/accused No.1 offence punishable under Section 354 of IPC is hereby set aside. - 17 - NC: 2024:KHC:37677 CRL.A No. 39 of 2013 iii. Accused is acquitted of the said offence. His bail bonds stand cancelled. SD/- (MOHAMMAD NAWAZ) JUDGE HB/TL List No.: 1 Sl No.: 29