A single bench of Hon'be Delhi High Court presided by Justice Mukta Gupta while disposing off an appeal has held that when a deaf witness is under cross-examination the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not affect either the competence or the credibility of such witness.
In the instant appeal filed by the Accused who was convicted for the offence defined under Section 9(k), punishable under Section 10 of The Protection of Children from Sexual Offences Act, 2002, for sexually assaulting a 12 yr old deaf and dumb girl, twin arguments were raised by the counsel for appellant i.e. firstly since the prosecutrix could not be cross-examined her testimony cannot be read in evidence and secondly even if the offence is proved against the appellant, the same would fall under Section 7 punishable under Section 8 of POCSO Act and not under Section 9(k) punishable under Section 10 of the POCSO Act.
Section 119 of the Indian Evidence Act, 1872 provides: “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.”
While dealing with the mode of recording, non-administration of oath to a deaf and dumb witness and involving an interpreter for understanding the evidence of such a witness, the Supreme Court in the decision reported as (2012) 5 SCC 789 State of Rajasthan Vs. Darshan Singh @ Darshan Lal held: “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.
On Questioning the Testimony as no cross examination held
In reply to the first argument of questioning the testimony, Justice Mukta Gupta held as follows;
“The purpose of cross-examination is to ascertain the truth in relation to the acquisition levelled against an accused person and a discretion is vested in the Court to control the cross-examination. A party cross-examining a deaf and dumb witness like any other witness is required to act within the bounds of law and cannot be permitted to cross-examine the witness all and sundry on irrelevant questions. Section 138 of the Indian Evidence Act itself provides that the examination and cross-examination of a witness must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief. The purpose is that in cross-examination besides relevant facts, facts which impeach the credibility of the witness and shake his creditworthiness can also be asked. However still the first portion of Section 138 of the Evidence Act qualifies this right confining the cross-examination to relevant facts though it may not have been so deposed in the examination-in-chief. It is the duty of a Judge to control the cross-examination to prevent any abuse and to protect a witness from being unfairly dealt with. Sections 149 to 152 of the Evidence Act prohibit asking questions without reasonable grounds, which are indecent and scandalous in nature, or which are intended to insult or annoy the witness”.
“When a deaf and dumb witness is under cross-examination, the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not affect either the competence or the credibility of such witness. The Court is required to exercise control over the cross-examination keeping in view the ability of the witness to answer the questions.
From the examination of the witness which was in question-answer form and the response to the cross-examination wherein the witness drew and explained the distance where the incident took place, it can safely be held that there was sufficient compliance of the right to cross-examination provided to an accused and the testimony of this witness is not required to be effaced”
On punishment under section 8 Sexual Assault or Section 9 Aggravated Sexual Assault
The Court then examined the question whether appellant can be convicted for offence defined under Section 7 and punishable under Section 8 of the POCSO Act or defined under Section 9(k) and punishable under Section 10 of POCSO Act. The appellant was charged for offence defined under Section 7 and punishable under Section 8 of POCSO Act i.e. “sexual assault”.
Section 7 POCSO Act defines the term sexual assault as physical contact without penetration. The punishment for the same is provided in Section 8 wherein the minimum sentence is 3 years which may extend to 5 years with fine.
Section 9 of POCSO Act defines “aggravated sexual assault” which is punishable under Section 10 POCSO Act. Section 9 POCSO Act defines different types of sexual assault which would be termed as aggravated sexual assault. Sub-clause (k) of Section 9 POCSO Act provides that whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child would be punished for aggravated sexual assault as per Section 10 of POCSO Act wherein the minimum punishment is of 5 years imprisonment which may extend to 7 years and fine.”
Though charged with a major offence an accused can be convicted for a minor offence, the vice-versa is impermissible.
Court altered the Punishment
Accepting the contention of the Accused, the bench held that in the facts of the case Court is not required to go into whether aggravated sexual assault is made out or not from the evidence on record, for the reason there was no charge for aggravated sexual assault framed against the appellant. “ It is trite law that though charged with a major offence an accused can be convicted for a minor offence, however the vice-versa is impermissible which has been done by the learned Trial Court.”
Consequently, the Court altered the conviction of Accused to one for offence defined under Section 7 and punishable under Section 8 of POCSO Act.
The earlier sentence dt. 17 Dec 2013 of "Rigorous imprisonment for a period of six years and fine of Rs. 5,000/- in default whereof to undergo simple imprisonment for a period of three months" has not been modified as "Rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 10,000/- in default whereof to undergo simple imprisonment for a period of one month".
Click here for the Judgement dated 03 Jun 2016, bearing No. CRL.A. 751/2014 titled Chander Singh Vs. State
Language used by Judiciary referring to persons with disability
An important takeaway from this judgement is also the issue of improper and disability unfriendly language used by the Hon'ble Judges despite their best intentions. The terminology "deaf and dumb", "suffering from disability" etc has been repeatedly used by the prosecution, courts below and the high court in the pleadings, orders and judgement. And this is not one odd case. Its high time that the judicial officers and prosecution officers too are trained in the use of correct language / terminology while referring to persons with disabilities. While the words, "suffering from" and "handicapped" are one extreme, the term "Divyang" suggested by Hon'ble Prime Minister of India is on the other extreme of the disability etiquette. People with disabilities are persons first and therefore a simple reference to them as "a person with disability" or "a person with hearing impairment", speech impairment, etc... in line with the UNCRPD accepted worldwide is appropriate and proper. The Hon'ble High Court must consider addressing this as a priority.