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Baneshwar Marandi @ Boneshwar … vs The State Of Jharkhand on 4 December, 2018

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No. 6591 of 2017

Baneshwar Marandi @ Boneshwar Marandi @ Bhuneshwar Marandi
…… Petitioner
Versus
1.The State of Jharkhand
2. Member Secretary, JHALSA, Ranchi …… Opposite Parties

———

CORAM: HON’BLE MR. JUSTICE ANANT BIJAY SINGH

———

For the Petitioner : Mr. R.R.S. Singh, Advocate
For the State :A.P.P
For the O.P. No. 2-JHALSA: Mr. Ashish Verma, Advocate
……………

C.A.V on : 22/11/2018 Pronounced on: 04/12/2018

1. The petitioner has been made an accused in connection with Ranga P.S. Case

No. 73 of 2015, corresponding to G.R. No. 693 of 2015 subsequently, S.C. No. 92 of

2016 for the offence under section 376(G) of the IPC and under section 4 of POSCO

Act lodged on the basis of written repot of informant-Prosecutrix-A alleging therein

that on 02.09.2015 at 8 a.m , she went for taking bath in a fall and in course of bath

Joiten Soren and Baneshwar Marandi @ Boneshwar Marandi @ Bhuneshwar

Marandi (petitioner) caught the informant and took her towards forest, the

informant could not raise alarm as she was deaf and dump thereafter the accused

persons raped the informant one by one and thereafter they fled away towards

forest.

2. The informant disclosed the incident to her father by sign and also shown the

house of the accused persons and identified the accused persons by sign.

3. On the basis of these and another allegations, the instant case has been lodged.

4. It appears that earlier the petitioner moved for bail in B.A. No. 2582 of 2016

before this Court which was rejected on 28.07.2016 and hence this bail application.

5. Further, it appears that on 28.08.2017, this bail application has been filed.

Thereafter, under order dated 15.09.2017 report from the concerned court was

called for and also Xerox copy of the attested to be true copy of the evidence of
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P.W.-4 and further the trial court was directed to issue notice upon the P.W.-4,

Victim, P.W.-1, father and P.W.-3 and after proper verification, the trial court in

association with Secretary, D.L.S.A, Sahibganj under the guidance of learned

Principal District Sessions Judge-cum-Chairman, D.L.S.A, Sahibganj was

directed to explore the possibility of rehabilitation and provide the benefit out of

nine scheme as sponsored by the NALSA and executed by the JHALSA and DALSA

and also to provide interim compensation to the victim under Jharkhand Victim

Compensation Scheme and was directed to submit report to this Court.

6. Thereafter the matter was listed on 16.11.2017 and on that date required

report was not received so the matter was adjourned for 04.01.2018. On 04.01.2018

report was received from the Principal District Judge-cum-Chairman, D.L.S.A,

Sahibganj which revealed that P.W.-4 victim along with her father had appeared

and scheme for her rehabilitation was formulated and it was decided for sanction of

Rs, 3 lac in favour of the victim-P.W. under the Jharkhand Victim Compensation

Act.Further, the Xerox copy of the attested to be true copy of evidence of P.W.-4 has

been submitted by the trial court and the report revealed that out of 7 witnesses, 6

witnesses have been examined and the doctor is yet to be examined and the next date

fixed in this case is 01.12.2017.

7. But the aforesaid report does not reveals that while recording evidence of

P.W.-4 victim the trial court has complied the provision of Section 119 of the Indian

Evidence Act and Section 36 of POCSO Act thereafter fresh report was called from

the court concerned as to whether aforesaid provisions have been complied with or

not while recording the statement of victim-P.W.4..

8. Further, the Principal District Judge-cum-Chairman, D.L.S.A, Sahibganj was

directed to ensure as to whether the compensation of Rs. 3 lac was paid to the victim

or not.

9. Thereafter the matter was adjourned for 15.03.2018, 09.04.2018 and on

09.04.2018 affidavit was filed on behalf of the O.P. NO. 2-Member Secretary,
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JHALSA, Ranchi which revealed that Rs, 3,00,000/- was said to the victim in the

account of the victim under the Victim Compensation Schemes.

10. Further, Mr. Ashish Verma, learned Advocated appeared on behalf of

JHALSA to assist this Court on the question of law.

11. It appears that under order dated 08.05.2018, after receipt of report dated

10.01.2018 submitted by the learned District Addl. Sessions Judge-1, Rajmahal

with regard to recording of statement of victim by the Trial Court, the Registrar

(Vigilance) was directed to hold enquiry and inspect the record of S.C. No. 92/16

and also directed to report that as to whether trial court has followed/complied the

provision of Section 119 of the Indian Evidence Act and under section 36 of POCSO

Act while recording the statement of victim-P.W.4.

12. Thereafter, the matter was adjourned for 10.07.2018 and 24.07.2018. In the

meanwhile, on 29.06.2018, Registrar (Vigilance) submitted enquiry report.

Report dated 29.06.2018 submitted by Registrar Vigilance reveals as under:

“On perusal of the case record of Sessions Case No. 92/2016, it transpired

that charge for the offence punishable under sections 376(D) of the Indian

Penal Code, under section 4 of the Protection of Children from Sexual

Offence Act, 2012 (in short POCSO Act) has been framed on 04.07.2016

(Annexure-III) against the accused Bhuneshwar Marandi. Victim Dular Besra

has been examined on 09.05.2017 in the case as P.W. 4 and during her

evidence Sri Mritunjay Prasad, resource teacher of deaf and dumb school has

attended the Court as interpreter who put questions to the victim by showing

signs. The depositing of the victim (Annexure-IV) is disclosing that victim was

not able to understand the signs shown to her by the specialist therefore,

specialist opined that since victim has not enrolled in deaf and dumb school

hence she is unable to understand the signs. The mother of the victim

disclosed before the court that victim is unable to hear. Above facts have been

written in the deposition of victim itself.

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At para 4 of the deposition of the victim it is mentioned that as per

opinion of the specialist a team consisting of parents of the victim,

psychologist, sign language interpreter audiologist and one special educator

may be competent to understand the gesture of the victim.

At para 5 of the deposition it mentioned that the defence counsel raised

question that unless the victim has studied in deaf and dumb school, she

could not understand the language of the team and sdaid question was

answered by the specialists in affirmative. At para 6 of the deposition it is

mentioned that as per specialist the victim may understand the lip language of

her parents because she is residing with them since her childhood. As per

para 7 of the deposition there was objection of the defence on putting question

by the parents of the victim on the ground that they are related and interested

witness, hence defence suggested to take help of some others. But as per

specialist the parents of the victim may be the best interpreter hence court has

allowed the prosecution to examine the victim with the help of her mother.

Since, mother of the victim was not knowing Hindi hence oath was

administered to Sri Dennial, orderly of the court of r translation of the Adivasi

language in Hindi. At para 9, 10 an 111 it is mentioned that on questions to

the victim she has answered it by signs related to catching of her hand,

pressing of her neck, who also indicated towards the accused. She also

indicated about tying of her hands and taking away to ther. She also disclosed

that one persons was involved in commission of occurrence but agains she

has not6 indicated towards accused on question that whether accused is

present in the court or not. It has been observed by the court that the witness

is not completely understanding the questions.

It is will settled by the Hon’ble High Courts of Karnataka, Andhra

Pradesh, Kerala Gujarat that the evidence of deaf and dumb persons may

be recoded in any other manner as her or she can make such evidence
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intelligible. The other manners in which a persons can make his idea

intelligible would be either by a written word or by sign, the only restriction is

that such expression of the ideas by means of signs or writing should be made

in open court. The question to such witness may be put by signs he/she can

read and understand from the movement of lips, hands and gesture and he/she

may given reply also by gesture which are understandable. If evidence is

recorded under Section 119 of the Evidence Act, there must be a record of

sings and not the interpretation of signs so that the appellate court should

also know whether the interpretation of the signs is correct or not. The duty

cast upon the court to examine such witness as per provision of Section 119 of

the Evidence Act and to follow the provision of Section 4 and 5 of the Oaths

Act, 1969. As provided the oath or affirmation to be made by the witnesses,

interpreters and jurors. In this way interpreter as well as witness both have to

administer oath before the Court proceeds to record evidence of a dumb

witness and the Court while recording the evidence of dumb witness, must

record both signs as well as the interpretation of the signs.

As per provisions of Section 36 of the Protection of Children from

Sexual Offences, Act, 2012 (POCSO Act) this section makes provision for the

child not to see the accused at the time of testifying. It casts duty upon the

Special Court to ensure that the child is not exposed in any way to the

accused at the time of recording of the evidence, while at the s dame time

ensuring that the accused is in a position to hear the statement of the child

and to communicate with his advocate. It empowers the Special Court to

record the statement of a child through video conferencing or by utilizing

singly visibility mirrors or curtains or any other such device.

In this way it appears that it was mandatory for the Court to ensure

that victim should not exposed in any way to the accused at the time of

recording of the evidence, conduct the trial in camera, record the statement of
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victim through video conference or to utilize the single visibility mirrors or

curtain or any other such device to ensure the compliance of above provision.

On perusal of the order sheet dated 20.03.2017 and 09.05.2017 (Annexure-V)

it appears that on both dates victim of the case was present in the Court for

her evidence. On perusal of the evidence of the victim as well as the order

sheet dated 09.05.2017 it is not disclosing the fact that the court has taken

precaution not to expose the victim before the accused.

On careful inspection of case record of S.C. No. 92/2016 it appears that

the Court concerned has not strictly complied the provision of Section 119 of

Evidence Act and law laid down by the Hon’ble High Courts. It also appears

that the Court concerned has not ensured the compliance of Section 36 of the

POCSO Act.”

13. Thereafter, the matter was heard and it was submitted by Mr. Ashish Verma,

learned counsel for the JHALSA that learned Additional Sessions Judge has not

followed the law laid down of the aforesaid rulings and also not followed the

provision of Section 119 of the Indian Evidence Act and Section 36 of the POCSO

Act.

14. It has been submitted that there is miscarriage of justice and this Court has

inherent power to expunge the evidence of victim-P.W.4 recorded by the trial court.

15. In the case of “Dilawarsab Alisalb Jakati Vs. State of Karnataka by its State

Public Prosecutors” reported in 2005 Cri LJ 2687, the Hon’ble Karnataka High

Court has observed as under:

“A Indian Penal Code 1860- Section 376 (2) (F) Offence Under-

Accused committing Rape on his cousin-sister aged 10 years who is dumb

with weak personality-On Facts held, the Medical Evidence is being negative

having not notice any injury over the private part and there being no

penetration, the evidence of P.W.1 to the f act that he witnessed the actual
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sexual intercourse by the accused on his daughter cannot be accepted-At the

most, it can be held that the accused has made an attempt to commit an

offence.

(B) Oaths Act, 1969 Sections-4 and 5- Recording of Evidence of a dumb

witness under -admissibility of -Held- the interpreter as well as the witness

both have to be administered oath before the Court proceeds to record

evidence of a dumb witness- The court while recording the evidence of dumb

witness, must record both signs as well as the interpretations of the interpreter

and then only it becomes admissible under the Indian Evidence Act- On Facts,

held, the Non-compliance of the provisions of Sections 4 and 5 of the Oaths

Act and the evidence is not being recordd as required undr Section 119 of the

Indian Evidence Act, the evidence of the prosecutrix cannot be accepted.-

Further Held- The evidence of P.W.1 only reveals that on hearing the

screaming sound of his daughter, rushed to the spot, it is then noticed that the

accused was laying on his daughter and attempting to commit rape. But not

succeeded and fled away from the place- Therefore, it is not a case under

Section 376 (2) (F) I.P.C. The offence do fall under section 376 r/w Section

511 I.P.C.”

16. Further, in the case of “Kumbhar Musa Alib Vs. State-Respondent” reported

in 1966 0 AIR (Guj) 101, the Hon’ble Gujrat High Court has held that evidence of

the deaf witness under section 119 of the Evidence Act has been recorded then there

must be record of signs and not the interpretation of sings.

17. In view of the aforesaid judgments discussed hereinabove and from perusal

of report of learned Sessions Judge along with evidence of victim-P.W.4, report of

Registrar (Vigilance), it transpires that admittedly the victim-P.W.4 is deaf and dumb

and her statement was recorded with support of interpreter but in terms of Section

119 of the Indian Evidence Act which has been interpreted and explained in the

judgment of “Dilawarsab Alisalb Jakati Vs. State of Karnataka by its State Public
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Prosecutors” reported in 2005 Cri LJ 2687, the Trial Court has not kept the record

of both signs as well as interpretation of the interpreter with the evidence, so the trial

court has not complied the provision of law.

18. Considering the nature of allegation, the bail application of the petitioner is

hereby rejected.

19. Further, invoking inherent power under section 482 Cr.P.C, I hereby expunge

the evidence of victim-P.W.4 recorded by the trial court. Further, trial court is

directed to summon the victim-P.W.4 afresh and record her evidence keeping in view

the provision under section 119 of the Indian Evidence Act and Section 36 of

POCSO Act and also in the light of aforesaid judgments and keep on record the sign

and interpretation on record. Further, the trial court is directed to conclude the trial

as yearly as possible.

20. The trial court is directed to seek assistance of the Jharkhand State Legal

Services Authority, JHALSA, Ranchi and the Member Secretary Jharkhand State

Legal Services Authority, JHALSA is directed to provide services of expert of sign

language so that the evidence of prosecutrix may be recorded and any honorarium,

other expenses, T.A., D.A for the same will be borne by the JHALSA. Further,

Secretary, Jharkhand High Court Legal Services Committee is directed to quantify

the fees of Mr. Aashish Verma, learned Counsel appearing for JHALSA.

21. Let a copy of this order be communicated to the concerned trial court and a

copy of this order be also sent to the Member Secretary, JHALSA, Ranchi.

Satyarthi/- (Anant Bijay Singh, J.)

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