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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.8  70 of 2007   

State of Rajasthan                 …..Appellant  

Versus

Darshan Singh @ Darshan Lal         ….. Respondents  

JUDGMENT

Dr. B.S. CHAUHAN, J.  

l. This  Criminal  Appeal  has  been  preferred  against  the  

judgment and order dated 29.5.2006 in D.B. Criminal Appeal No. 96  

of  2003 passed by the High Court  of  Judicature for  Rajasthan  at  

Jodhpur setting aside the judgment and order dated 15.1.2003 passed  

by  the  Additional  Sessions  Judge  (Fast  Track)  Hanumangarh,  

convicting the respondent herein of the offences punishable under  

Section  302  of  Indian  Penal  Code,  1860  (hereinafter  referred  as  

`IPC’) and imposing the punishment to suffer rigorous imprisonment

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for life and to pay a fine of Rs. 500/- in default to further undergo  

one month simple imprisonment.  

2. Facts and circumstances giving rise to this appeal are that:

A. Buta  Singh (PW.15)  lodged an oral  report  on 4.5.2001 at  

1.00 a.m. at P.S. Hanumangarh, District Hanumangarh stating that  

on  intervening  night  between  3/4.5.2001  at  about  12.15  a.m.,  

Jaswant Singh (PW.1) received a telephone call from Dr. Amarjeet  

Singh Chawla (PW.4)  to the effect that Jaswant Singh’s daughter  

was perturbed and, therefore, he must immediately reach the house  

of his son-in-law Kaku Singh.  Buta Singh (PW.15), informant,  also  

proceeded towards the house of Kaku Singh deceased, alongwith his  

son  Gurmail  Singh.   They met  Jaswant  Singh (PW.1)  and Geeta  

(PW.16), his daughter in the lane.  The main door of the house was  

closed but  the window of  the door  was  open.   They went  inside  

through  the  window and  found  two cots  lying  on  some distance  

where  fresh blood was lying covered with sand. They also found the  

dead body of Kaku Singh in the pool of blood covered by a quilt in  

the room.  

B. On being asked,  Geeta (PW.16) (deaf and dumb), wife of  

Kaku Singh deceased communicated by gestures that Darshan Singh,  

respondent-accused,  had  stayed  with  them in  the  night.   He  had  

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given  a  pill  with  water  to  Kaku  Singh  and  thus  he  became  

unconscious.  Two  more  persons,  accomplice  of  Darshan  Singh  

came from outside  and  all  the  three  persons  inflicted  injuries  on  

Kaku Singh with sharp edged weapons. Geeta (PW.16) got scared  

and ran outside.  The motive for committing the offence had been  

that one Chhindri Bhatni was having illicit relationship with Kaku  

Singh, deceased, and about 8-10  months prior to the date of incident  

Kaku Singh caused burn injuries to Geeta (PW.16) at the instigation  

of  Chhindri  Bhatni.   However,  because of  the intervention of  the  

community people, Kaku Singh, deceased, severed his relationship  

with Chhindri Bhatni, who became annoyed and had sent her brother  

Darshan Singh alongwith other persons who killed Kaku Singh.

C. On the basis  of the said report FIR No. 262 of 2001 was  

registered under Sections 449, 302, 201 and 120B IPC against the  

respondent  at  P.S  Hanumangarh  and  investigation  ensued.   The  

respondent  was  arrested  and  during  interrogation,  he  made  a  

voluntary disclosure  statement  on the basis  of  which the I.O.  got  

recovered a blood stained Kulhari and clothes the respondent was  

wearing at the time of commission of offence.  

D. After  completion  of  the  investigation,  the  police  filed  

chargesheet against the respondent under Sections 302 and 201 IPC  

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and the trial commenced. During the course of trial, the prosecution  

examined as many as 23 witnesses and tendered several documents  

in evidence.  However,  Geeta (PW.16) was the sole eye-witness of  

the occurrence, being   deaf and dumb, her statement was recorded in  

sign language with the help of her father Jaswant Singh (PW.1) as an  

interpreter.  After completion of all the formalities and conclusion of  

the trial, the trial court placed reliance upon the evidence of Geeta  

(PW.16)  and  recovery  etc.,  and  convicted  the  respondent  vide  

judgment and order dated 15.1.2003 and imposed the punishment as  

mentioned here-in-above.   

E. Aggrieved, the respondent preferred Criminal Appeal No. 96  

of  2003  before  the  High  Court  which  has  been  allowed  vide  

impugned judgment and order dated 29.5.2006.  

Hence, this appeal.  

3. Dr. Manish Singhvi, learned Additional Advocate General,  

appearing for the appellant-State, has submitted that the prosecution  

case was fully supported by Geeta (PW.16), Jaswant Singh (PW.1)  

and  Buta  Singh  (PW.15)  which  stood  fully  corroborated  by  the  

medical  evidence.  Dr.  Rajendra  Gupta  (PW.17)  proved  the  post-

mortem report and supported the case of the prosecution.  Therefore,  

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the High Court committed an error by reversing the well-reasoned  

judgment of the trial court.  Thus, the appeal deserves to be allowed.  

4. Per contra, learned counsel appearing for the respondent has  

opposed the appeal contending that the deposition of Geeta (PW.16)  

cannot be relied upon for the reason that she is deaf and dumb and  

her statement has not been recorded as per the requirement of the  

provisions of Section 119 of the Evidence Act, 1872.  The deposition  

of Jaswant Singh (PW.1) cannot be relied upon as he was having an  

eye on the property of Kaku Singh, deceased.  The High Court has  

considered the entire evidence and re-appreciated the same in correct  

perspective.   There  are  fixed  parameters  for  interfering  with  the  

order of acquittal which we do not fit in the facts and circumstances  

of the case, therefore, the appeal is liable to be dismissed.    

5. We  have  considered  the  rival  submissions  made  by  the  

learned counsel for the parties and perused the records.  

Undoubtedly, Kaku Singh, deceased, died a homicidal death.  

Dr.  Rajendra  Gupta  (PW.17),  who  conducted  the  post-mortem  

examination on the dead body of Kaku Singh, found the following  

injuries:  

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(i) Incised  wound 4-1/2” x 1”  bone deep fracture on the right  

lateral side of face mandible region.  

(ii) Incised wound 5-1/2” x 2” bone deep all structure of neck cut  

wound.  

          He opined that the cause of death was injury to vessel of neck,  

trachea  due  to  injury  no.  2  which  was  sufficient  in  the  ordinary  

course of nature to cause death.  

6. The only question that remains for consideration is whether  

the respondent could be held responsible for causing the death of  

Kaku Singh, deceased.   

Geeta  (PW.16)  is  the  star  witness  of  the  prosecution.  

According to her at 6.30 p.m. on the day of incident, respondent-

accused came to her house. The accused and her husband consumed  

liquor together.  The respondent-accused had mixed a tablet in the  

glass of water and the same was taken by her husband Kaku Singh.  

She served the food to both of them and subsequently, all the three  

persons slept on cots in the same room. During the night two persons  

also joined the respondent-accused.  It  was at  11.30 p.m.,  accused  

Darshan Singh had taken out a kulhari from his bag and gave blows  

on the neck and cheek of her husband.  She raised a cry but accused  

caught her by the hair and asked to keep quiet otherwise she would  

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also be killed.  The dead body was taken by the accused alongwith  

accompanying persons and was put in a room and locked the same  

from outside.  In the court, Geeta (PW.16) witness indicated that she  

could read and write and she had written telephone number of her  

father Jaswant Singh (PW.1). It was on her request that Dr. Amarjeet  

Singh Chawla (PW.4) informed her father.  After sometime, Jaswant  

Singh  (PW.1)  came  there  on  scooter  and  saw  the  place  of  

occurrence.   

7. Jaswant Singh (PW.1) deposed that he reached the place of  

occurrence  after  receiving  the  telephone  call  from  Dr.  Amarjeet  

Singh Chawla (PW.4) and after coming to know about the murder of  

Kaku Singh, he informed Buta Singh (PW.15), brother of deceased  

Kaku  Singh.   Jaswant  Singh  (PW.1)  reached  the  clinic  of  Dr.  

Amarjeet  Singh  Chawla  (PW.4),  in  the  way,  he  met  Buta  Singh  

(PW.15) and his son Gurmail Singh.  They came to the house of  

Kaku Singh, deceased and found the blood covered with sand and  

also the dead body of Kaku Singh lying on a cot in a room covered  

with  quilt.   Geeta  (PW.16)   informed  him through  gestures  that  

respondent-accused Darshan Singh had killed him with kulhari while  

Kaku Singh was sleeping.  She also told Jaswant Singh (PW.1) about  

the illicit relationship of Chhindri Bhatni with Kaku Singh, deceased  

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and because of the intervention of community persons, Kaku Singh  

had  severed  relationship  with  Chhindri  Bhatni.   The  latter   got  

annoyed  and got  Kaku Singh killed  through  her  brother  Darshan  

Singh, respondent-accused.  

8. Buta  Singh  (PW.15),  brother  of  deceased  Kaku  Singh,  

narrated the incident as had been stated by Jaswant Singh (PW.1).  

9. Dr.  Rajendra  Gupta,  (PW.17),  who  conducted  the  post-

mortem on the said dead body supported the case of the prosecution  

to the extent that Kaku Singh, deceased, died of homicidal death.  

10. Gurtej Singh (PW.2) the recovery witness deposed about the  

inquest report of the dead body and taking in custody of empty strip  

of tablet, blood stained soil and simple soil and moulds etc. from the  

spot.   

11. Hari Singh (PW.7), the recovery witness of kulhari (Ext. P-

12) at the instance of respondent-accused Darshan Singh supported  

the prosecution case to the extent of the said recovery.  

12. Ramjilal (PW.23), Investigating Officer, gave full details of  

lodging an FIR at midnight and explained all steps taken during the  

investigation,  recoveries  referred  to  here-in-above,  recording  of  

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statements  of  witnesses  under  Section  161  Cr.P.C.,  sending  the  

recovered  material  for  FSL  report  and  arrest  of  Darshan  Singh,  

respondent-accused etc.  

13. Dr.  Amarjeet  Singh  Chawla  (PW.4)  deposed  that  Geeta  

(PW.16) had asked him to give a telephone call to her father and he  

had accordingly  informed her  father.   After  sometime,  her  father  

Jaswant  Singh  (PW.1)  had  arrived  on  scooter.   In  the  cross-

examination, he explained that Geeta (PW.16) was dumb and deaf,  

however,  could read and write  and she had written the telephone  

number of her father as 55172 and, thus, he could contact her father.  

14. The  respondent-accused  in  his  examination  under  Section  

313  Cr.P.C.,  denied  all  allegations.   The  trial  court  found  the  

evidence on record trustworthy and in view thereof, convicted the  

respondent-accused and sentenced him as referred to hereinabove.   

15.The High Court re-appreciated the entire evidence and came to  

the following conclusions:  

(I) There  were  major  contradictions  in  ocular  evidence  and  

medical  evidence.   As per  the statement of  Geeta (PW.16), Kaku  

Singh,  deceased  and  Darshan  Singh,  respondent-accused  had  

consumed liquor in the evening but this was not corroborated from  

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medical evidence.  Dr. Rajendra Gupta (PW.17) has admitted that  

there was nothing to show that deceased Kaku Singh had consumed  

liquor. Her version of giving a pill for intoxication of deceased could  

not  be  proved  by  medical  evidence.   The  viscera  was  sent  to  

Forensic Science Laboratory but the report did not show that any  

sort of poison had been administered to the deceased.  

(II) The  version  of  Geeta  (PW.16)  did  not  appear  to  be  

trustworthy as she deposed that Darshan Singh accused, Kaku Singh  

deceased and the witness had slept in the same room.  It was natural  

that a husband and wife would not allow a stranger to sleep with  

them,  even if Darshan Singh, accused, was known to them.  In view  

of the fact that relationship between Geeta and Chhindri Bhatni had  

never  been  cordial,  it  could  not  be  believed  that  Geeta  (PW.16)  

would permit the brother of Chhindri Bhatni to sleep with them.  

(III) Geeta (PW.16) had admitted in her cross-examination that  

Chhindri Bhatni had 10 brothers and none of them had ever visited  

her  house.   Chhindri  Bhatni  was  living  in  the  same  house  with  

deceased and Geeta.  She further admitted that she had never seen  

Darshan  Singh,  respondent-accused,  prior  to  the  date  of  incident.  

Even, she could not disclose the features of the accused to the police.  

In such a fact-situation, the question of sleeping all of them together  

could not arise.   

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(IV) There could be no motive for  Darshan Singh, respondent-

accused, to kill Kaku Singh, deceased for the reason that even as per  

deposition  of  Geeta  (PW.16),  Kaku  Singh  had  severed  the  

relationship with Chhindri Bhatni long ago.  

(V) The  name of  Darshan  Singh,  respondent-accused,  did  not  

find place in  the FIR.   The accused persons had been mentioned  

therein as Chhindri Bhatni and her brother.  

(VI) So far as the recovery of kulhari (Ext. P-12) is concerned,  

even  if  believed,  did  not  lead  to  any  interference  for  the  simple  

reason that FSL report (Ext. P-64) revealed that there was no human  

blood  found  on  kulhari.   Therefore,  the  evidence  of  recovery  of  

kulhari could not be used as incriminating circumstance against the  

accused.  

(VII) The evidence  on record  revealed  that  Geeta  (PW.16)  and  

Jaswant Singh (PW.1) were apprehending that Kaku Singh deceased  

would alienate his irrigated land to Chhindri Bhatni and, therefore, it  

became doubtful whether Darshan Singh, respondent/accused could  

have any motive to kill Kaku Singh, deceased.

(VIII) The  evidence  of  Geeta  (PW.16)  was  recorded  in  sign  

language  with  the  help  of  her  father  Jaswant  Singh  (PW.1).  

Admittedly, neither she nor her father while acting as her interpreter  

had been administered oath. The signs have been recorded alongwith  

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its interpretation.  There was possibility of misinterpretation of the  

signs made by her, as her father could do it purposely, the statement  

of Geeta (PW.16) did not inspire confidence.

(IX) Deposition of Geeta (PW.16)  could not be relied upon as it  

was not safe for the court to embark upon the examination of deaf  

and dumb witness, on her information without the help of an expert  

or a person familiar of her mode of conveying ideas to others in day  

to day life.   Further,  such a person  should not be an interested  

person. In the instant case, Jaswant Singh (PW.1) had participated in  

the investigation and was an interested person.    

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 father who acted as interpreter when  

her statement was recorded in the court.  In view of provisions of  

Sections 4 and 5 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 Rameshwar S/o Kalyan Singh v. The State  

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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.    In  M.P.  Sharma  &  Ors.  v.  Satish  Chandra,  District  

Magistrate, Delhi & 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  

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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. 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.     In  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  

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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 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  

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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.  

22.    In the instant case, there is sufficient material on record that  

Geeta (PW.16) was able to read and write and this fact stood proved  

in the trial court when she wrote the telephone number of her father.  

We fail to understand as to why her statement could not be recorded  

in writing, i.e., she could have been given the questions in writing  

and an opportunity to reply the same in writing.  

23.     Be that as it may, her statement had been recorded with the  

help of her father as an interpreter, who for the reasons given by the  

High Court, being an interested witness who had assisted during the  

trial,  investigation  and was  examined without  administering  oath,  

made  the  evidence  unreliable.  In  such  a  fact-situation,  the  High  

Court  has  rightly  given  the  benefit  of  doubt  and  acquitted  the  

respondent.

24.     We are fully aware of our limitation to interfere with an order  

against  acquittal.  In exceptional  cases  where there are compelling  

circumstances  and  the  judgment  under  appeal  is  found  to  be  

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perverse, the appellate court can interfere with the order of acquittal.  

The  appellate  court  should  bear  in  mind  the  presumption  of  

innocence of the accused and further that the trial Court’s acquittal  

bolsters the presumption of his innocence. Interference in a routine  

manner where the other view is possible should be avoided, unless  

there are good reasons for interference.

25. If we examine the judgment of the High Court in light of the  

aforesaid  legal  proposition,  we  do not  find  it  to  be  a  fit  case  to  

interfere with the order of acquittal.  

The appeal lacks merit and, is accordingly, dismissed.  

         ………………………..J.              (Dr. B.S. CHAUHAN)

                       ………………………..J.             (DIPAK MISRA)

New Delhi,  May 21, 2012    

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