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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 20TH

DAY OF MARCH, 2017

PRESENT

THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY

AND

THE HONOURABLE MR.JUSTICE K.SOMASHEKAR

CRIMINAL APPEAL NO.100049/2014

Between:

State of Karnataka

Represented by Police Inspector

Garag Police Station,

Dharwad Taluk & District.

… Appellant

(By Shri. V.M.Banakar, Addl. SPP)

And:

Rajesab

S/o: Mahaboobsab Mulla,

Aged about: 40 Years,

R/o: Kurubagatti,

Now R/o: Harobelavadi,

Taluk & District: Dharwad

… Respondent

(By Shri. V.G.Bhat, Advocate)

R

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This appeal is filed under Section 378 (1) & (3) of

Cr.P.C. seeking to grant leave to appeal against the judgment

and order of acquittal dated 31.07.2013 passed by the II Addl.

District and Sessions Judge, Dharwad, in S.C.No.148/2010, for

the offences P/U/S 376 r/w 511 of IPC and be set aside the

judgment and order of acquittal and convict the

respondent/accused for the offences P/U/S 376 r/w 511 of IPC.

This appeal coming on for Final Hearing this day, Anand

Byrareddy J., delivered the following:

JUDGMENT

Heard the learned counsel for the appellant and the

learned Additional State Public Prosecutor on behalf of the

state.

2. The appeal is filed against the judgment of the trial Court

in Sessions Case No.148/2010 on the file of the II Addl. District

and Sessions Judge, Dharwad, whereby the trial Court has

acquitted the accused for an offence punishable under Sections

323 and 376 of the Indian Penal Code (Hereinafter referred to

as ‘ the I.P.C’, for brevity) and also for an offence punishable

under Section 376 read with 511 of IPC, while it has convicted

the accused to simple imprisonment for a period of two months

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and to pay a fine of Rs.500/- in respect of the offence

punishable under Section 354 of the IPC.

3. The facts of the case as stated by the prosecution are as

follows;

The complainant-Irabasappa had stated that his daughter-

Iravva, though married had been deserted by her husband and

she was residing along with him. That she had taken their cattle

for grazing on 05.06.2008 and that at about 1.00 p.m., when his

daughter was near Narasinganavar Halla of Kurubagatti village,

the respondent-accused is said to have come there and had over

powered her and had outraged her modesty. A case was said to

be registered on the basis of the complainant. However, on

further investigation a case was said to be registered against the

accused for an offence punishable under Section 376 of the IPC

as well. He was said to have been arrested on 07.06.2008 and

further proceedings were taken and he had stood trial.

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4. It is on an analysis of the evidence that was tendered the

Court below has rendered the above impugned judgment. It is

pointed out that the trial Court in proceeding to analyze the

evidence has firstly found that Ex.P13 the complaint, indicated

that the prosecutrix PW.1 had come back home crying at about

2.00 p.m. and she was accompanied by PW.6, Hanamantapa

and PW.9, Vithal, and on inquiry the complainant was told that

his daughter had been molested and her blouse was torn by the

accused and it was for that reason that she was crying. The

witnesses, PWs.6 and 9, in turn had informed the complainant,

particularly PW.9, that he had heard cries from the Halla, where

the incident is said to have been taken place and on going there

he saw the accused physically molesting the victim and on

seeing the witness PW.9, the accused is said to have run away

from the spot.

5. It is thereafter PW.6 also was said to have been called to

the spot by PW.9, and both of them tried to console the victim

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and then had brought her home. On the basis of the complaint,

the FIR had been registered only for the offence punishable

under Section 323 and 354 of the IPC. It is on subsequent

investigation that other provisions namely 376 read with 511 of

the IPC were introduced.

6. PW.1 the victim is said to have been born deaf and dumb,

and her evidence had been recorded with the assistance of a

translator, PW.10, who was said to be an educator for the deaf

and dumb, through means of signs. The prosecutrix is said to

have narrated that around 1.00 p.m. the accused had come and

tied her eyes with a cloth and had torn her blouse. He is then

said to have handled her breasts and had felled her to the

ground. He had then forced his hand between her legs and had

penetrated her vagina with his penis. All these details had been

narrated by means of signs which were in turn interpreted by

PW.10 and recorded by the Court. It is further narrated that the

accused had run away after having satisfied his lust.

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7. The evidence of PW.3 was to the effect that, he learnt of

the incident only when PWs.6 and 9 brought PW.1 home and

when they narrated the manner in which the incident is said to

have occurred and that PW.9 had seen the accused running

away from the spot and that he was naked from the waist down

and he was holding his underwear in his hand while running

away. It is this circumstance of the sexual act committed by the

accused, which was significantly missing from the complaint,

that is notice by the trial Court as being an improvement. And

the trial Court has opined that it was an improvement, which

certainly affected the genesis of the case. And it was incumbent

on the complaint to narrate this aspect of the matter, in the first

instance, in the complaint.

8. One other aspect which the trial Court has found was that

the complainant was an illiterate man and he had put his left

thumb impression on the complaint and in his testimony had

stated that on the very same day of the incident, he had lodged

the complaint orally, and it was written down in the police

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station by a police officer and he had put his left thumb

impression on the said written content. It is further stated that

the victim herself had accompanied the complainant to the

police station and the police had made inquiries with her as

well. And she had replied through signs. It was further found

from the record that she was also taken to a medical

practitioner, where she had again narrated the incident by signs.

But still the police had not chosen to register a case and

investigate the matter for the offence punishable under Section

376 IPC. The provisional medical certificate and final report at

Exs.P8 and 9 are also silent as regards the enquiries made by

the police and the medical practitioner in the first instance and

the report is also silent as regards the rape as claimed by the

victim.

9. Ex.P8, discloses that the victim was taken to the hospital

by a woman constable and the trial Court has pondered that the

police had narrated the history of rape to the medical

practitioner and even then the same being absent in the report as

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being inexplicable. Further, PW.6, has stated that he was near

the spot and where the incident is said to have taken place, as he

had gone there to bring back his buffaloes and at that point of

time he had heard screams and he had gone there to investigate

and that had seen the accused running away from the scene and

he also noticed that the accused was not wearing any clothes

below his waist and he was holding his underwear in his hand.

Thereafter he had seen the victim with her torn blouse and it

was also claimed by the said witness, that she had explained by

signs of her having been ravished by the accused. And that he

had contacted his friend, Ningappa, who was on the adjacent

land and by the time he came, the accused had run away and

therefore they could not catch the accused. It is thereafter, that

he and Ningappa had brought the victim home where she had

again by means of signs had narrated her plight. But Ningappa,

who was examined as PW.4 had not supported the case of the

prosecution.

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10. It is further found by the trial Court that PW.9, another

crucial witness for the prosecution to establish the circumstance

of the offence having been committed. According to PW.9, he

along with PW.6 had come to the spot simultaneously on

hearing the cries of the victim and he had stated that, he came at

the same time as PW.6 to the spot, which is not the version of

PW.6. It was the claim of PW.6, that he was the only one who

came to the spot after he heard screams, and on seeing him the

accused had run away from the spot that he was half naked.

Therefore, the Court has found that there was inconsistency in

the testimony of these crucial witnesses PW.6 & 9 as to the

timing of their arrival at the scene and that one would not be in

a position to corroborate the testimony of the other. And that

their testimony was also not consistent with the complaint as

made by Irabasappa the complainant PW.3 and hence there is

complete inconsistency in the version given by the victim, her

father the complainant and PWs.6 and 9.

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11. One other witness whose testimony may be relevant to

the prosecution is that of PW.10 the translator who was

employed to interpret the signs made by PW.1 in her testimony

before the Court.

12. The Trial Court has found that the victim had been taken

to a school for the deaf and dumb by the Police at which time,

the investigation had been completed. In that the medical

examination and the FSL report had been received which did

not indicate the commission of the alleged rape. Whereas,

according to the record in a tutor of the school meeting with the

victim, had been told about the commission of rape. Therefore,

the Trial Court has seriously doubted the veracity of the

evidence of PW.10 and the interpretation by the said witness of

the signs made by the victim as to the accused being a bearded

person and that he was wearing sandal paste on his neck and

that he had caught hold of her by her hair and threw her on the

ground and stripped her of her clothes before committing rape.

And that he had also undressed himself completely. All of

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which did not find place in the complaint, nor the testimony of

P.Ws.6 and 9 and the victim herself. They had not stated about

the accused having removed his clothes completely and P.W.6

had also not indicated that the accused was completely naked, if

the testimony of P.W.10 is to be reconciled with the testimony.

13. Though P.W.3, the complainant had stated that he had

narrated the incident as disclosed by him in his testimony, the

complaint, however, is silent on these aspects. One other aspect

highlighted by the Court below is the fact that the Investigating

Officer had made a requisition to the Committal Magistrate to

include an offence punishable under Section 376 read with

Section 511 of the IPC. According to him, from the contents of

the FSL report, it was confirmed that the under garments of the

victim which had been sent for forensic examination, did

indicate signs of the commission of the alleged rape. But

however, the Trial Court has observed that the FSL report only

revealed the presence of semen stains on the petticoat of the

victim and not on any other garments, nor were any such semen

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stains found either in her vagina or on her pubic hair, nor was it

found on the clothes of the accused. The Trial Court has thus

dismissed the presence of semen stains, as bringing home the

charge against the accused of having committed rape. The Trial

Court has further concluded that the information provided by

the complainant, P.Ws.6 and 9, even if it could be accepted in

part, it would indicate that there was a quarrel between the

accused and the victim and that in the course of which her

blouse had been torn and she had been manhandled and nothing

beyond had occurred. It is in this manner that the Trial Court

has acquitted the accused for the offence punishable under

Section 376 read with Section 511 of the IPC or for an offence

punishable under Section 376 of the IPC. It is opined that at

best a case has been made out for an offence punishable under

Section 354 of the IPC, in the absence of any other clinching

incriminating material and acceptable evidence in support of the

charges and has restricted the punishment as aforesaid. It is this

which is under challenge in the present appeal.

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14. The learned Additional State Public Prosecutor would

firstly point out that even for an offence punishable under

Section 354 of the IPC, by virtue of the amended provision, the

minimum punishment is one year which may extend to 5 years.

Though under the unamended provision, the imprisonment was

for a term which could extend to two years or with a fine.

Therefore, when the Trial Court has categorically found that the

accused had committed an act which was an offence punishable

under Section 354 of the IPC, the Court has been extremely

lenient and ought to have punished the accused with a far

greater punishment. It is contended that this itself would

indicate the manner in which the Trial Court has approached the

facts of the case.

15. The learned Additional State Public Prosecutor would

highlight the fact that the victim was a woman who was born

deaf and dumb. Therefore, she was seriously handicapped in

narrating the trauma that she underwent. The fact that there was

strong circumstantial evidence in the form of evidence of

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P.Ws.6 and 9 to support the pathetic story of the victim has

been cast aside by the Trial Court in finding fault with the

minor variations of the episode, as narrated by the victim P.W.1

and PW.6, the witness who was present on the scene

immediately after the commission of the offence and who had

seen the accused flee from the spot, naked from the waist down,

and the victim lying on the ground crying for help with torn

clothes and P.W.9 also having been called to the spot, who was

nearby, having seen the plight of the victim, has been

trivialized, as an incident where there was a quarrel between the

accused and the victim which is rather a naive conclusion of the

Trial Court. Whereas, the testimony of the victim alone was

sufficient to bring home the charges against the accused for an

offence punishable under Section 376 of the IPC. Even

assuming that there was no positive report, either by the FSL or

by the Medical Practitioners, as to the victim having under gone

forcible sex, it would still be possible for the prosecution to

bring home a charge for an offence punishable under Section

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376 read with Section 511 of the IPC. The Trial Court having

negated the same, on the finding that though semen stains were

found on the petticoat of the victim, such semen stains were not

to be found on other undergarments of the victim did not bring

home the charges against the accused, is a crude approach in

expecting that the victim’s clothes would be drenched with

semen and that such evidence could be produced.

16. The further conclusion of the Trial Court that no semen

stains were found on the clothes of the accused or on the private

parts of the victim is also a negation of the complaint of a deaf

and dumb woman who could not give a graphic description of

the manner in which she was violated by the accused. Though

the circumstance of the offence having been committed and the

accused being a person who had ravished the victim being

portrayed through the testimony of P.W.6 has been diluted and

trashed with reference to the details contained in the complaint

lodged by the illiterate father of the victim, who may not have

dictated the gory details, as he was not the victim and he had

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only the account made by his daughter through signs. At the

point of time, when she had only then been rescued from the

trauma and was in a state of agitation and suffering and apart

from the account of P.Ws.6 and 9, he had little other

information. The absence of these particulars in the First

Information Report, therefore, could not have prompted the

Trial Court to hold that the prosecution had failed to make out a

case. It is contended that the approach of the Trial Court has

therefore, completely side lined and ignored the evidence of the

victim herself.

17. It is also pointed out that the intervention of P.W.10, who

is said to be a teacher at a school for the deaf and dumb to

interpret the signs made by P.W.1, while rendering her

testimony in Court was superfluous. The signs made by the

victim in Court were not a learnt sign language. But a dumb

person seeking to narrate the incident by physical signs and the

Trial Court was capable of comprehending those signs. The

presence of P.W.10, the interpreter was mere surplusage, the

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Trial Court did not have to rest on the interpretation given by

P.W.10, when the victim herself was present in Court and was

doing her best to narrate her case through signs. Therefore, it

was the testimony of P.W.1 which assumed center stage and

ought to have been given credence, while the evidence of others

was only to support her case and it was not the other way

around. Therefore, the Trial Court was in error in seeking to

find consistency and corroboration to a degree as would be

warranted in any other case involving a victim, other than such

as in the present case. Therefore, the approach of the Trial

Court is found wanting in having proceeded to dilute and trash

the evidence of the prosecution in the case on hand. Therefore,

the SPP would seek that even if the prosecution has not made

out a case for an offence punishable under Section 376 of the

IPC, it has certainly made out a case for an offence punishable

under Section 376 read with Section 511 of the IPC and seeks

that appropriate punishment be awarded to the accused.

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18. While the learned counsel for the respondent would

candidly admit that no appeal has been preferred against the

conviction and sentence for an offence punishable under

Section 354 of IPC. However, since the present appeal by the

State is to question the acquittal under Section 376 of the IPC,

the cogent reasons assigned on the several aspects by the Trial

Court would certainly demonstrate that the prosecution had

failed to establish its case beyond all reasonable doubt. The

emotional pitch which the learned Additional State Public

Prosecutor would seek to cast, in challenging the judgment of

the Trial Court would not however enable him to contend that

there was material evidence which was consistent and evidence

which was corroborated by the several witnesses. On the other

hand, the inconsistencies and contradictions which have been

highlighted by the Trial Court cannot be dubbed as being an

indifferent approach of the Trial Court. He would contend that

when the very freedom of the accused is at stake, it is for the

prosecution to establish the case beyond all reasonable doubt

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and since it has failed to do so, the accused having been

acquitted for the offence punishable under Section 376 of the

IPC or for the offence punishable under Section 376 read with

Section 511 of the IPC, is well founded and does not warrant

interference and seeks dismissal of the appeal.

19. In the light of the above rival contentions, Firstly insofar

as the complaint having been registered for an offence

punishable under Sections 323 and 354 of the IPC and the First

Information Report being silent, as regards any offence

punishable under Section 376 of the IPC, is not unusual. The

complainant was an illiterate man. His complaint had been

dictated at the Police Station which was said to have been

recorded by a Police personnel. He had merely affixed his

thumb impression to the content of the First Information

Report. It is settled law that First Information Report need not

be an encyclopedia of the incident and it only sets the law in

motion. Therefore, if on further investigation, the case has been

enlarged to include an offence punishable under Section 376 of

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the IPC, it cannot be said to be vitiated on that ground. The case

of the prosecution does not entirely rest on circumstantial

evidence. The victim herself is a witness and her testimony

should be given full effect, particularly when the woman was

born deaf and dumb. The evidence of P.W.6 which could be

termed as circumstantial evidence, was so close in proximity of

time making him almost an eyewitness to the offence. In that,

he was in the vicinity and having heard the whimpers and cries

of the victim, had come on the scene to see the accused run

away, naked from the waist down, and apparently after having

molested the victim. The victim again having narrated her

plight by virtue of signs was sufficient for P.W.6 to

comprehend as to what had transpired. Therefore, this sequence

cannot be said to be implausible. On the other hand, would

corroborate the evidence of the victim. The fact that the Trial

Court has found that the incident had taken place and that it

could be categorized only as a quarrel that had taken place

between the accused and the victim and that he had even torn

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her clothes in the process, would indicate that the evidence was

sufficient for the Court atleast to arrive at such a conclusion.

The Trial Court has not chosen to ponder as to how semen

stains could be found on the victim’s petticoat when she had

been deserted by her husband and was wearing the same

petticoat at the time of the incident and it was at a forensic

examination that this was confirmed. The Trial Court having

opined that no semen stains were found on other garments of

the victim is indeed unfortunate. The ejaculate of a normal man

would not be of such a quantity as to drench the clothes of the

victim, nor was it necessary that the man should ejaculate while

committing rape and that he should stain the clothes of the

victim. This extreme expectation of signs of rape is indeed

unfortunate.

20. Insofar as the testimony of the victim having been

disbelieved or having been diluted with the reference to the

testimony of P.W.10, who was called in to interpret the signs

made by the victim to depose before the Court is concerned, the

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manner in which the evidence of a witness unable to

communicate verbally is to be recorded is laid down under

Section 119 of the Indian Evidence Act, 1872, as it stood before

the amendment by Act No.13 of 2013, is as follows:

“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.”

Since the witness was examined as on 07.01.2012, the amended

provision which was incorporated with effect from 03.02.2013,

was not available. Therefore, it is inexplicable that the

interpreter, P.W.10 has been brought into service to interpret

the signs made by the victim.

21. This Court takes judicial notice of the fact that sign

language is an art and is well developed in almost every

language. In that, there are newsreaders, who read the news

through sign language in most languages. It is not that sign

language which was being used by the witness in the present

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case. She was an illiterate woman and was narrating her story

by signs which were capable of being comprehended by

anybody and not necessarily a person trained in sign language

which would be peculiar to a trained person in sign language.

Therefore, it was for the Court to have recorded the narration by

the victim of the incident by the signs that she was making in

Court and there was no need for any interpreter.

22. The Supreme Court in addressing the scope of manner of

examination of such witnesses in the case of State of Rajasthan

vs. Darshan Singh, 2012 (5) Supreme Court Cases 789 has

referred to the observation of the Apex Court in M.P.Sharma

vs. Satish Chandra, AIR 1954 SC 300 to the following effect.

“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 dumb witness or the like.”

It is further expounded thus:

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“26. 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 with the

assistance of an interpreter. 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 requires that there

must be a record of signs and not the

interpretation of signs.”

(emphasis supplied)

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23. Therefore, it was incumbent on the Trial Court to have

actually recorded the signs made by the witness and not the

interpretation of signs. The exercise of having brought in the

assistance of P.W.10 was wholly unnecessary. Though the

amended Section 119 of the Indian Evidence Act, 1872

referring to the assistance of interpreter or a Special Educator in

recording the statement of dumb witnesses, apparently relates to

a person conversant with sign language and being able to speak

in sign language, as a trained person would. It is such

communication which may have to be interpreted by a trained

person, for otherwise the Court is not precluded from

comprehending the signs made by a dumb witness to state or

narrate particular state of affairs. As observed by the Apex

Court in Darshan Singh, that a case in point is the silent movies

of a bygone era, which were understood widely because they

were able to communicate ideas to people through novel signs

and gestures, emphasize body language and facial expressions

which enabled to audience to comprehend the intended

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message. Therefore, the evidence of the victim having been

sought to be diluted by reference to certain vague

interpretations given by P.W.10 was unfair and was

unwarranted. Consequently, from the evidence on record, we

are fully convinced that the prosecution has made out a case for

an offence punishable under Section 376 read with Section 511

of the IPC and this we are concluding on the account of medical

reports and the FSL reports as well as the opinion of the

Medical Practitioners that there were no signs of sexual

activity. We have our own doubt as to whether such medical

examination would actually indicate recent sexual activity. For,

the Medical Practitioner was looking for injuries, as if an act of

sex should always produce injuries. Therefore, the opinion if it

was founded on that basis, would be erroneous. But we are

compelled to hold that though rape itself may not have been

established, there was atleast an attempt to rape.

Consequently, the judgment of the Court below is set

aside, insofar as the acquittal of the accused for an offence

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punishable under Section 376 read with Section 511 of the IPC

and we hold that the accused is found guilty of the said offence

and in our opinion a punishment of rigorous imprisonment of

seven years atleast would be warranted for an offence under

Section 376 of IPC, but since the offence of rape has not been

firmly established, we convict him for an offence punishable

under Section 376 read with Section 511 of IPC, to rigorous

imprisonment for three years and six months. The respondent

having been convicted and sentenced to simple imprisonment

for two months shall be entitled to a set off for the period

during which he has suffered imprisonment.

Sd/-

JUDGE

Sd/-

JUDGE

msr/Rsh