The Gauhati High Court recently comprising of a bench of Justices Suman Shyam & Mir Alfaz Ali observed that the testimony of the victim recorded with the aid of her mother being an interested witness cannot be given any credence. (Abdul Karim @ Gatu Vs the State of Assam And Anr.)
The bench noted that the argument credited to the victim was undoubtedly articulated by the mother based on the victim’s signs and gestures. However, the victim’s symptoms were not listed in the interview, and since she is a party of concern, her evidence is not credible.
Facts of the case
The case as unfolded at the trial, may, briefly, stated as the victim in the instant case is a deaf and dumb girl of 22 years of age, the accused took the daughter of the informant to an isolated place on the backside of Moinamati building and committed rape on her. The incident was witnessed and the father of the victim lodged an FIR, on the basis of which, police registered the case under Section 376 IPC and upon completion of the investigation submitted a charge sheet against the appellant under Section 376 IPC.
The learned trial court appreciating the evidence adduced by the prosecution, convicted the appellant under Section 376(2)(1) IPC. Hence the Present appeal was filed.
Contention of the Parties
Assailing the impugned judgment of the trial court, learned counsel for the appellant, Mr. Choudhury contended that the prime witnesses of the prosecution were the PW-1, PW-2, PW-4 & PW-6 and all of them stood contradicted on material facts and as such testimony of all these four witnesses was totally unreliable. Mr. Choudhury submitted that though, they projected themselves to be eye witnesses, in fact, none of them were eye witness of the occurrence and as such, no reliance could have been placed on the testimony of these four witnesses.
Learned counsel for the appellant further submitted that the evidence of the victim was also not reliable, inasmuch as, her statement was recorded with the aid of her mother, who was an interested witness. Mr. Choudhury has placed reliance on a decision of the Apex Court in State of Rajasthan Vs. Darshan reported in 2012(4) Supreme 72 and argued that the testimony of the victim in the instant case recorded with the aid of her mother being an interested witness cannot be given any credence.
Par contra, learned Additional P.P. Mr. Phukan contended that in a case of sexual assault, the testimony of the victim is sufficient to record conviction without any corroboration, inasmuch as, the victim of the sexual offence cannot be disbelieved unless her testimony is found to have suffered from inherent improbabilities.
Courts Observation & Judgment
The bench noted, “Section 119 of the Evidence Act requires that when a witness is unable to speak or communicate verbally may give his/her evidence in any other manner, in which he/she can make it intelligible, such as, in “writing” or by ‘sign’. The proviso further lays down that when a witness is unable to communicate verbally, his/her statement can be recorded with the assistance of the interpreter or a special educator and when the statement is recorded with the assistance of interpreter or special educator, such recording of the statement shall be video-graphed. The proviso to Section 119 of the Evidence Act was incorporated by criminal law (amendment) Act, 2013. In the instant case the evidence was recorded in the year 2017. Therefore the court was under obligation to video-graph the recording of statement, when the victim adduced evidence by signs and the court recorded the statement with the assistance of the interpreter (mother). The purpose of video-graphing the recording of the statement is to enable the appellate or revisional court to assess the evidence properly. What is evident is that learned trial court did not record the evidence of the victim as per requirement of law. This apart ‘rape’ so far as the witness is concerned is a vague expression, unless the actual act done is brought on record it would be difficult for the court to decide as to what offence had been committed.”
The court remarked, “We have already noticed that the mother of the victim is not a witness worthy of placing reliance inasmuch as, her own testimony is found to be unreliable. Apparently, the victim did not state anything beyond the removal of clothes and touching her abdomen while deposing for the first time with the help of independent interpreter. We also notice that the trial court while recording statement at the first instance noted down the signs made by the victim. The statement of the victim recorded for the second time with the aid of her mother to the effect that the accused committed rape, in our considered view does not inspire confidence, inasmuch as, no specific act done by the accused has been mention except the ‘vague’ term rape which also did not fall from the mouth of the victim.”
The court relying on the Apex Court judgment in the case of State of Rajasthan Vs. Darshan argued, “that the testimony of the victim in the instant case recorded with the aid of her mother being an interested witness cannot be given any credence.”
The court noticed, “the victim is deaf and dumb and as such, there is no difficulty in understanding that commission of rape as recorded by the learned trial court with the aid of the mother, certainly did not fall from the mouth of the victim as she was not able to speak. The evidence was also not given in writing. Therefore, the statement attributed to the victim was certainly articulated by the mother from the signs and gesture made by the victim. However, the signs made by the victim were not mentioned in the deposition. Hence, the appeal stands partly allowed to the extent.”
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