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Azad Khan vs The State Of Bihar on 12 September, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3381 of 2017
Arising Out of PS. Case No.-28 Year-2013 Thana- ARWAL MAHILA District- Jehanabad

Azad Khan S/o Shamshad Khan, Resident of Village/Mohalla- Rasidpur, P.S.-
Arwal, District- Arwal. … … Appellant/s
Versus
The State Of Bihar … … Respondent/s

Appearance :

For the Appellant/s : Mr.Ashutosh Kumar,
Mr. Rajesh Kumar Pandey, Advocates.

For the Respondent/s : Mr.S. A. Ahmad, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT

12-09-2019 Appellant, Azad Khan, vide judgment of

conviction dated 16.11.2017 and order of sentence dated

17.11.2017, has been found guilty for an offence punishable

under Section 448 IPC and sentenced to undergo RI for one

year, under Section 376/Section511 of the IPC and sentenced to

undergo RI for five years as well as to pay fine appertaining to

Rs. 10,000/- in default thereof, to undergo RI for one year,

additionally, with a further direction to run the sentences

concurrently, by 2nd Additional Sessions Judge, Jehanabad in

Sessions Trial No. 42/2014/143/2014 arising out of Arwal

Mahila PS Case No. 28/2013.

2. Sunil Dutta (PW-3), filed a written report on

25.11.2013 at about 9:00 PM disclosing therein that he happens

to be resident of Village-Rashidpur. He used to reside at Patna

along with his children. His wife was alone at his house. Seeing

alone and being deaf and dumb, Azad Khan, a ruffian intruded
Patna High Court CR. APP (SJ) No.3381 of 2017
2/18

inside his house and with an intention to commit rape tried to

undress her and during course thereof, she was also assaulted as,

has protested. During course thereof, he also snatched away

chain. His wife immediately rushed to the place of his friend,

Lalji Singh (PW 3) and began to weep. His friend telephonically

informed that your wife is weeping. He is unable to perceive her

indication. Then he came from Patna. His wife disclosed the

event and took him to the house of the accused in order to

properly affix identification the accused.

3. After registration of Arwal Mahila PS Case No.

28/2013, investigation commenced and completed by way of

submission of charge-sheet, facilitating the trial meeting with

the ultimate result, subject matter of the instant appeal.

4. Defence case as is evident from the mode of cross-

examination as well as statement recorded under Section 313

CrPC is that of complete denial. It has further been pleaded that

at an earlier occasion, the prosecution party got the soil carried

through the tractor of the appellant and, on the score of tarrif,

there was dispute, in the aforesaid background, got this case

filed. Furthermore, one DW has also been been examined on

that very score.

5. In order to substantiate its case, the prosecution
Patna High Court CR. APP (SJ) No.3381 of 2017
3/18

has examined altogether six PWs who are PW-1, Victim, PW-2,

Lalji Singh, PW-3, Sunil Dutta, PW-4, Arun Kumar Singh, PW-

5, Kumari Babita and PW-6, Puja Devi. Side by side, has also

exhibited Ext-1, Written application of informant, Ext-2,

Endorsement on written application of informant.

6. Learned counsel for the appellant has submitted

that having a cursory glance over the judgment impugned

suggests that the same has been passed in utter violation of the

mandatory provisions of law whereupon, is a nullity in the eye

of law. In order to substantiate his plea, it has been submitted

that none is an eyewitness to the occurrence. The victim herself

happens to be the sole witness of alleged occurrence. The

unfortunate part is that she is dumb and only knew to sign. So,

virtually, she happens to be an illiterate. During course of

evidence in court, no interpreter was there to interpret correctly

and further, the learned P.O. had also no expertise on that very

score whereupon, there happens to be a grave doubt with regard

to proper appreciation of the signal/mark having been at the end

of the victim during course of deposition. Consequent

thereupon, the appellant is entitled for acquittal.

7. On the other hand, learned APP challenging the

submission having been made at the end of learned counsel for
Patna High Court CR. APP (SJ) No.3381 of 2017
4/18

the appellant, has submitted that from perusal of the deposition

of the victim, it is absolutely clear that learned P.O. had properly

understood the expression given by the victim, a dumb witness

and further having a remark at some places fortifies the same.

So, the judgment impugned is fit to be confirmed.

8. Section 119 of the Evidence Act prescribes the

mode of admissibility of the evidence being deposed by a deaf

and dumb witness. For better appreciation, the same is quoted

hereinbelow:-

“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.”

9. The matter has been considered in depth by the

Hon’ble Apex Court in the case of SectionState of Rajasthan v.

Darshan Singh alias Darshan Lal reported in AIR 2012 SC

1973, and relevant paras are extracted below:-

“16. We have also gone through the entire
evidence and concur with the findings recorded
by the High Court.

Basic argument which has been advanced by
both the parties before us is on the admissibility
and credibility of sole eye-witness Geeta
(PW.16).

Admittedly, Geeta (PW.16) had not been
administered oath, nor Jaswant Singh (PW.1), her
Patna High Court CR. APP (SJ) No.3381 of 2017
5/18

father who acted as interpreter when her
statement was recorded in the court. In view of
provisions of Sections 4 and Section5 of the Oaths Act,
1969, it is always desirable to administer oath or
statement may be recorded on affirmation of the
witness. This Court in SectionRameshwar S/o Kalyan
Singh v. The State of Rajasthan : AIR 1952 SC
54, has categorically held that the main purpose
of administering of oath to render persons who
give false evidence liable to prosecution and
further to bring home to the witness the
solemnity of the occasion and to impress upon
him the duty of speaking the truth, further such
matters only touch credibility and not
admissibility.

However, in view of the provisions of
Section 7 of the Oaths Act, 1969, the omission of
administration of oath or affirmation does not
invalidate any evidence.

17. SectionIn M.P. Sharma and Ors. v. Satish
Chandra, District Magistrate, Delhi and Ors. :
AIR 1954 SC 300, this Court held that a person
can “be a witness” not merely by giving oral
evidence but also by producing documents or
making intelligible gestures as in the case of a
dumb witness (See Section 119 of the Evidence
Act) or the like.

18. 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 be with the assistance of an interpreter.
Patna High Court CR. APP (SJ) No.3381 of 2017
6/18

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 required that there must be a record of signs
and not the interpretation of signs.

19. SectionIn Meesala Ramakrishan v. State of
A.P. : (1994) 4 SCC 182, 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 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.

20. 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. Emphasised body language
and facial expression enabled the audience to
comprehend the intended message.

21. 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
Patna High Court CR. APP (SJ) No.3381 of 2017
7/18

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.

10. The evidence of the victim is to be taken note of,

on priority basis who also happens to be PW-1. To see whether

the same fulfills the criteria laid down by the Apex Court as

referred above. The court before examination has tested the

witness after tracing her out to be a dumb. The court after query

has recorded :-

” The witness is unable to write more and is not
in position to say by sign when or about what period
since before the occurrence took place but she has
been giving the episode which took place in
occurrence by sign.”

11. It is not evident from the deposition form that she

was capable to take oath. From the order-sheet dated

24.06.2014, there happens to be no specification that the witness

was administered oath. As no cross-examination is there, and

further there happens to be presumption on that very score,

unless rebuttal, hence, it could be accepted that oath has already

been administered.

Patna High Court CR. APP (SJ) No.3381 of 2017
8/18

12. This witness has stated that door was open. Then

pointed out towards the accused, Azad Khan, came inside

through the door and then closed the door. She became afraid of.

She retreated but, he came, caught hold of her breast, lied her

down, lifted Sari-Saya and then tried to commit rape, gagged

her mouth, slapped over her cheek, snatched away her chain,

squeezed her breast. The neighbour informed her husband over

mobile. He caught hold of her through his hands. She had

protested whereupon, he assaulted her. After assault, accused

fled away. Her husband came and then took her to police station.

During cross-examination, she has stated that she also had put

her signature at the police station. As soon as her husband came,

they had gone to the police station. At para-3, she was unable to

understand the question/ and failed to answer when she was

asked in which direction accused fled away after the occurrence

and, in likewise manner, location of house of the accused

intervened by how many houses. At para-4, she has stated that

after having been thrown over the ground as well as assaulted,

she sustained hurt. Then she was suggested that she has deposed

falsely.

13. PW-2 is Lalji Singh, friend of husband of the

victim, PW-1. He has stated that on the alleged date and time of
Patna High Court CR. APP (SJ) No.3381 of 2017
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occurrence, he was taking meal. At that very time, wife of Sunil

came to his house and began to weep in her own tone which he

could not understand. Then he inquired from her whether he

should inform her husband and after getting nod, he informed

her husband. Thereafter, he said to the victim that her husband is

coming. Her husband came in the night near him. Her husband

disclosed that a boy, namely, Azad Khan has misbehaved with

her and on account thereof, he has instituted a case. During

cross-examination, at para-3, he has shown the house of the

accused lying south to the house of the victim intervened by 3-4

houses belonging to Madhav Mahto, Rajendra Mahto, Alam

Khan and Sardin Khan. Then has shown boundary of the house

of the informant as North-Gali, South-Barren land. In para-4, he

has shown ignorance of the fact that there was dispute in

between informant and accused over tariff over carrying of soil.

In para-6, he has stated that he is unable to file call details of his

mobile. In para-8, he has stated that he had made statement

before the police at the house of the informant.

14. PW-3 is the husband. He has stated that on the

alleged date and time of occurrence, he was at Patna. At about

mid-day, his friend Lalji Singh telephonically informed him that

his wife has come to his house and is weeping over which, he
Patna High Court CR. APP (SJ) No.3381 of 2017
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directed Lalji to inform his wife that he is coming. Then he

came to his house over motorcycle and inquired from his wife

whereupon, she by sign stated that at about 10:00 AM, Azad,

after undressing her, has tried to commit rape. Gotia of Azad

Khan, namely, Gayasu Khan’s house happens to be adjacent to

his house in which, his old mother resides only. Before the

occurrence, Azad Khan used to peep into his house after coming

over roof of Gayasu Khan and for that, his wife had made

complaint. She further stated that at that very time, she was

alone. She further stated that Azad Khan intruded inside the

house and caught hold of her breast, lifted her Sari-Saya and on

being protested at her end, she was assaulted by him and then,

took away golden chain. In order to confirm proper identity of

the accused, he inquired about the house of the accused,

whereupon, she took him to the house of Azad and then properly

signalled fixing identity of the accused to be Azad Khan. Then

thereafter, he came to the police station along with his wife

where he had furnished written report. Identified the accused.

During cross-examination at para-4, he has stated that his wife

is not a Pardah-nasheen lady. She used to visit outside. In para-

5, there happens to be topography with regard to his house. He

has also disclosed that he happens to be six brothers out of
Patna High Court CR. APP (SJ) No.3381 of 2017
11/18

whom only Arun Kumar resides in the village. Rest brothers as

well as Pattidars remained outside in order to earn their

livelihood. He has further stated that his brother Arun has also

seen Azad fleeing from his house and coming out of his wife in

a disorderly manner. He had also informed the same. He further

stated that he does not know whether the accused has tractor or

not. There was no occasion for him to inform the accused to

supply supply soil over his tractor. Then denied the suggestion.

In para-4, he has shown location of the house of the accused. In

para-5, he has stated that after coming to his house, he has not

talked with anybody else than his wife before going to the

police station. By sign, his wife had narrated the whole event

and then thereafter, they both proceeded to the police station. At

para-7, he has stated that he had also seen Azad peeping into his

house from the roof of Gayasu Khan after having been intimated

by his wife but he had not mentioned those things in the written

report. In para-8, he has stated that detailed description of

occurrence with minute details has not been incorporated in the

written report. Only gist of the occurrence has been reported. He

also had not mentioned with regard to catching of both breast of

his wife by the accused in the written report. Further he has

stated that in order to confirm the proper identity of the accused,
Patna High Court CR. APP (SJ) No.3381 of 2017
12/18

his wife had taken him to his place and that part is also

incorporated in the written report. He has further stated that

there happens to be no disclosure in the written report regarding

lifting of Sari-Saya. In para-9, he has stated that when he came

to the village he had not found the accused at his house. Then

has denied the suggestion that in the background of the dispute

over payment of unloading of soil, this false case has been

registered.

15. PW-4 is Arun Kumar Singh, brother of the

informant. He has stated that on the alleged date and time of

occurrence, he had found Azad son of Shamshad Khan coming

out from the house of the victim, wife of Sunil after opening the

door and then rushed towards his house briskly. Within a

minute, he had seen the victim coming outside in a disorderly

manner, weeping. On the aforesaid impression, he too opined

with regard to any kind of misdeeds having been committed

with her. His statement was recorded by the police. Identified

the accused. In para-7, he has stated that informant is his full

brother. In para-11, he has stated that house of both the brothers

are in front of each other. In para-12, he has stated that at the

time of occurrence, he was alone at his house. In para-13, he has

stated that he had not raised alarm seeing Azad fleeing from the
Patna High Court CR. APP (SJ) No.3381 of 2017
13/18

house considering the fact that Sunil happens to be LIC Agent

and on that very pretext, people frequently, visit. In para-14, he

has stated that at that very time, apparel of her Bhabho was not

in proper way. He has stated in para-15 that he had not raised

alarm, nor he had intimated any of the villagers. In para-17, 18,

there happens to be contradiction. Then has denied the

suggestion that he did not know Azad Khan.

16. PW-6 is the wife of Lalji Singh, namely, Puja

Devi, she has stated that the occurrence had taken place with the

victim. She does not know anything about the occurrence. When

the victim came to her house weeping, then she perceived

something wrong. At that very time, her husband was taking

meal. Then thereafter, her husband informed husband of the

victim whereupon, he said that he (her husband) is coming. The

witness has not identified the accused. During cross-

examination, she has stated that she (herself) happens to be

Bahu of the village. She has further stated that she is unable to

understand the signs/signals of the victim.

17. PW-5 is the IO. She has stated that on the alleged

date and time of occurrence, she was ASI at Arwal PS. After

registration of Arwal Mahila PS Case No. 28/2013,

investigation was entrusted to her. During course of
Patna High Court CR. APP (SJ) No.3381 of 2017
14/18

investigation, she had taken further statement of the informant.

With the help of informant, she recorded statement of the

victim, inspected the P.O. which happens to be the half

constructed building of the informant. Then she shown the

manner of ingress-outgress. Also located the room where

occurrence has been alleged to have taken place. Shown the

boundary as East-Kamta Prasad, West-Gali, North-Land of

Lalji Singh, South-Gali, then house of Gayasu Khan. Recorded

statement of the witness. There after completed the investigation

and submitted the charge-sheet. Exhibited all the relevant

documents. During cross-examination at para-10-11, she has

been questioned over non filing of the relevant proforma, a

formal FIR. In para-12, she has admitted that CJM has seen the

FIR on 27.11.2013. In para-13, she has stated that she is unable

to disclose the cause of delay as it happens to be the duty of the

Officer Incharge. In para-14, she has stated that as the victim

was dumb, so, she has recorded her statement with the help of

her husband. The narration was given by her husband. She is

unable to understand the sign/signal of a dumb. In para-17, she

has stated that the victim has taken her to the house of accused

but, she had not mentioned the same in the C.D. In para-20, she

has stated that she has not seen any injury over the victim. In
Patna High Court CR. APP (SJ) No.3381 of 2017
15/18

para-21, she has stated that she had not seen any sign of

snatching of chain. The room where the occurrence has been

alleged to have committed, has been properly identified. In

para-24, she has stated that she had not found incriminating

material at the P.O.. She had recorded statement of Lalji and

Arun only. She had not recorded statement of Kamta Prasad and

Gayasu Khan. She had not recorded statement of other persons

having houses in the vicinity of the accused. She had not traced

out tower location of mobile of Sunil as well as Lalji Singh. At

para-30 and 31, there happens to be contradiction relating to

Lalji Singh and para-32 relating to Arun Kumar. She has further

stated that she had not requisitioned an expert for getting signal

of the victim properly interpreted.

18. DW-1 has also been examined over dispute

having arisen in between informant as well as accused with

regard to tariff over unloading of soil but, during course of

cross-examination, he failed to disclose even the registration

number of the tractor.

19. From the evidence available on the record, it is

evident that none is an eyewitness to occurrence. From the

evidence, it is further apparent that the victim had not found

inclined to go to the house of Arun Kumar Singh, her Bhainsur
Patna High Court CR. APP (SJ) No.3381 of 2017
16/18

(PW 4), instead thereof, after covering some distance had gone

to the place of Lalji Singh and from there, the informant was

intimated. So, presence of PW-4 has become doubtful as had

there been his presence, having house in front of house of

informant, being full brother of informant, would have been

approached first. It is further evident that in spite of presence of

informant at a later part, neither he had contacted, Arun Kumar

Singh (P W 4) rather he, after taking information from the

victim and after verifying the same gone to police station.

Further, PW-2 has humself said that after filing of case,

informant came to this place and narrated the same. PW-3,

informant deposed whatsoever been stated by his wife, victim,

PW-1 and in order to lend assurance, had gone to the house of

the accused which was pointed out by the victim. It is also

evident that during course of evidence of PW-1, victim, though

she has stated with regard to manner of occurrence, was not at

all tested by way of cross-examination. It is needless to say that

in order to challenge the testimony of a witness, cross-

examination has to be conducted relating thereto, otherwise, it

will be deemed to be admitted one as has been observed by the

Apex Court in SectionGian Chand others v. State of Haryana

reported in 2013(4) PLJR 7 (SC) the relevant para is quoted
Patna High Court CR. APP (SJ) No.3381 of 2017
17/18

below:-

“11. The effect of not cross-examining a
witness on a particular fact/circumstance has been
dealt with and explained by this Court in Laxmibai
(Dead) Thr. SectionL.Rs. Anr. v. Bhagwanthuva (Dead)
Thr. L.Rs. Ors., AIR 2013 SC 1204 observing as
under:

“31. Furthermore, there cannot be
any dispute with respect to the settled legal
proposition, that if a party wishes to raise any
doubt as regards the correctness of the
statement of a witness, the said witness must
be given an opportunity to explain his
statement by drawing his attention to that part
of it, which has been objected to by the other
party, as being untrue. Without this, it is not
possible to impeach his credibility. Such a law
has been advanced in view of the statutory
provisions enshrined in Section 138 of the
Evidence Act, 1872, which enable the opposite
party to cross-examine a witness as regards
information tendered in evidence by him
during his initial examination in chief, and the
scope of this provision stands enlarged by
Section 146 of the Evidence Act, which permits
a witness to be questioned, inter-alia, in order
to test his veracity. Thereafter, the unchallenged
part of his evidence is to be relied upon, for
the reason that it is impossible for the witness
to explain or elaborate upon any doubts as
regards the same, in the absence of questions put
to him with respect to the circumstances which
indicate that the version of events provided by
him, is not fit to be believed, and the witness
himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must
provide adequate opportunity to the witness in
the witness box, to give a full and proper
explanation. The same is essential to ensure fair
play and fairness in dealing with witnesses.”

20. Now coming to propriety of the judgment
Patna High Court CR. APP (SJ) No.3381 of 2017
18/18

impugned, four stages have been identified for completion of

commission of an occurrence and those are:- (1) Intention to

commit, (2) Preparation to commit, (3) Attempt to commit and

(4) Attempt being successful, then completion of the offence.

21. The allegation as is evident is of chasterlization

and so far an allegation to commit a rape, that is not at all found

duly substantiated, as in worst case, accepting the evidence, the

victim was only lying down and then, her Sari-Saya were lifted

without having an allegation that there was an attempt at the end

of the accused to commit rape with proper identification of an

activity towards the same. That being so, it would be a case

under Section 354 IPC and is, accordingly, modified.

22. Appellant remained under custody since

20.12.2013, so sentence is reduced as period already undergone.

That being so, appellant, Azad Khan is directed to be released

forthwith, if not wanted in any other case.

(Aditya Kumar Trivedi, J)

perwez
AFR/NAFR AFR
CAV DATE 12.07.2019
Uploading Date 12-09-2019
Transmission Date 12-09-2019

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