In a latest and significant development, the Supreme Court Bench comprising of Justice Ajay Rastogi and Justice AM Khanwilkar in a latest judgment titled Asim Shariff Vs National Investigation Agency in Criminal Appeal No(s). 949 of 2019 (Arising out of SLP (Cri.) No(s). 1253 of 2019) delivered on July 1, 2019 has dismissed an appeal filed by a Popular Front of India leader Asim Shariff accused in the murder of a RSS worker Rudresh in Karnataka. It may be recalled that Asim Shariff’s application under Section 227 of Code of Criminal Procedure, 1973 seeking his discharge from the case in which he was accused of various provisions under Indian Penal Code and Unlawful Activities (Prevention) Act was dismissed by the Special Court. Also the Special Court framing charges against him was affirmed by the High Court rejecting his challenge against it.

To start with, this latest judgment authored by Justice Ajay Rastogi for himself and Justice AM Khanwilkar first and foremost after granting leave as mentioned in para 1 then goes on to point out in para 2 that, “The present appeal has been preferred by the accused appellant against whom a criminal case bearing no. RC04/16-NIA-HYD came to be registered along with four other accused persons for the offences punishable under Sections 120-B, 109, 150, 153A, 302, 201 read with Section 34 of IPC; Sections 3 and 27 of the Arms Act and Sections 15, 16, 17, 18 & 20 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter being referred to as “UAP Act”).”

Moving on, it is then stated in para 3 that, “After completion of the investigation, final report was submitted before the trial Court against the accused persons including appellant. The appellant claims that there was no material for registering the criminal case neither investigating nor submitting the final report against him. At this stage, the appellant filed application under Section 227 of Code of Criminal Procedure, 1973 (hereinafter being referred to as “CrPC”) seeking his discharge from the case for the aforesaid offences. The application was dismissed by the trial Judge/Special Judge who ordered for framing of charges against him for the aforesaid offences under Order dated 2nd January, 2018 came to be challenged by the appellant in a writ petition filed under Article 226 and 227 of Constitution of India read with Section 482 CrPC which was dismissed by a lucid impugned judgment dated 22nd November, 2018 which is a subject matter of challenge in the instant appeal.”

To recapitulate, para 4 then while dealing with the background of the case states that, “The background facts giving rise to this appeal which needs to be noted are that a criminal case came to be registered as Crime No. 124/2016 on 16th October, 2016 for the offences punishable under Section 302 read with Section 34 IPC by Commercial Street Police after a complaint was filed by one Jayaram (CW-1), who stated that on 16th October, 2016 at around 12.40 p.m. when he along with his friends namely Rudresh, Harikrishna and Kumar assembled near Srinivas Medical Stores, Shivajinagar, one person (accused) being the pillion rider of the motorcycle hacked Rudresh with a sharp edged and lethal machete on the right side of his neck and fled. Rudresh was taken to a hospital wherein he was declared brought dead.”

Delving deeper, it is then envisaged in para 5 that, “Initially, four accused persons (Accused nos. 1 to 4) were arrested on 27th October, 2016. Accused no. 5 (appellant herein) was arrested on 2nd November, 2016. Subsequently, the task of investigation was entrusted to National Investigating Agency (NIA) by the Union of India, Ministry of Home Affairs, New Delhi on 7th December, 2016. NIA registered FIR in RC No. 24/2016 against all five accused persons on 21st April, 2017 which stated that accused nos. 1 to 4 conspired with the accused appellant (accused no. 5) to kill RSS members and in furtherance of their acts, they committed offence punishable under Sections 302, 201 read with Section 34 IPC. The accused persons were said to be in possession of weapons without license, thereby it attracted the offence punishable under Sections 3 and 27 of the Arms Act. Further, the acts of the accused persons including the accused appellant amounted to offences punishable under Sections 120B, 109, 150, 153A, 302, 201 read with Section 34 IPC and under Sections 16(1)(a), 18 and 20 of the UAP Act.”

To put things in perspective, it is then revealed in para 6 that, “The appellant sought discharge under Section 227 CrPC along with other accused persons which came to be rejected vide order dated 2nd January, 2018 and framed charges against the accused persons including accused appellant. Special NIA Court under its Order dated 2nd January, 2018 while deciding the application of appellant seeking discharge under Section 227 observed that it was admitted by the defence counsel that the appellant is the President of Bengaluru unit of Popular Front of India (PFI) and the other accused persons nos. 1 to 4 are also the members of PFI.”

More damningly, it is then further revealed in this same para 6 that, “It was also admitted by the defence counsel that there was frequent telephonic/mobile phone conversation among the accused persons nos. 1 to 5 prior and subsequent to 16th October, 2016 (the date of the incident) which gave rise to the Special NIA Court to arrive at a conclusion that the material placed in the charge-sheet on record gives rise to sufficient grounds of subjective satisfaction of prima facie case of alleged offence of conspiracy being hatched among the accused persons. It further observed that the accused appellant has failed to justify the necessary ingredients of Section 227 CrPC and finally held that the matter deserved to be proceeded with framing of charge. The said order came to be affirmed by the High Court on dismissal of the writ petition preferred by the unsuccessful appellant vide its impugned judgment dated 22nd November, 2018.”

On the contrary, it is then pointed out in para 7 that, “Ms. Kamini Jaiswal, learned counsel for the appellant submits that the impugned judgment has resulted in grave miscarriage of justice and is based on an erroneous interpretation of the factual circumstances of the case and the High Court has not taken into consideration the oral and documentary evidence on record in the proper perspective which has vitiated the entire proceedings and led to gross injustice.”

More pertinently, it is then observed in para 23 that, “That apart, we have also gone through the relevant record and extract of the charge-sheet placed on record for perusal, the fact reveals that the accused appellant is the President of Bengaluru unit of Popular Front of India (PFI) and the other accused nos. 1 to 4 are also the members of PFI. It reveals from the charge-sheet that there was frequent telephonic/mobile conversation between appellant (accused no. 5) with other accused persons (accused nos. 1 to 4) prior and subsequent to 16th October, 2016 (the alleged date of incident) which persuaded the Court to arrive to a conclusion that there is a prima facie material of conspiracy among the accused persons giving rise to sufficient grounds of subjective satisfaction of prima facie case of alleged offences of conspiracy being hatched among the accused persons and truth & veracity of such conspiracy is to be examined during the course of trial.”

Most pertinently, it is then held in para 24 that, “After going through the records and the judgment impugned before us in the present facts and circumstances, we find no error in the judgment passed by the trial Court and confirmed by the High Court by the impugned judgment dated 22nd November, 2018 which calls for our interference.”

Needless to say, it cannot be lost on us that it is then enunciated in para 25 that, “We make it clear that what has been observed by this Court is only for the purpose of disposal of the present appeal and any observations made shall either way not prejudice the rights of the parties during the course of trial and the trial Court may also not to be influenced/inhibited by the observations made by us and proceed with the trial independently in accordance with law.” Para 26 then states that, “With these observations, the appeal is dismissed.” Lastly, para 27 then concludes by holding that, “Pending application(s), if any, stand disposed of.”

In a nutshell, it can well be said that the road ahead for the appellant – Asim Shariff is very bumpy and thorny! He clearly failed to get the relief of discharge which he was seeking from the case in which he was accused of various provisions under the Indian Penal Code and the Unlawful Activities (Prevention) Act for being involved in the murder of a RSS worker – Rudresh in Karnataka! Also, accused No. 4 has confessed that accused appellant was the mastermind behind the killing of RSS member! He has to now face the law as there is no option now before him! Very rightly so! The famous dictum which states that, “As you sow so shall you reap” clearly applies on the appellant here!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It has to be remarked that in a significant judgment titled Hanumant Vs The State Of Maharashtra in Criminal Appeal No. 493 of 2019 and Criminal Application No. 1702 of 2019 in Criminal Appeal No. 493 of 2019 delivered just recently on June 26, 2019 by the Aurangabad Bench of Bombay High Court has explained as to how to record the evidence of deaf and dumb rape victim. It has also remanded the rape case to the Trial Court on the ground that evidence of deaf and dumb victim was recorded without considering the provisions of Section 119 Evidence Act. As per the proviso to Section 119 Evidence Act, when the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.

To start with, the ball is set rolling by Justice AM Dhavale who authored this noteworthy judgment by first and foremost pointing out in the introductory part in para 1 that, “Heard Shri Nilesh S. Ghanekar, learned counsel for the appellant and Shri S.J. Salgare, learned APP for respondent/State.” Para 2 then states that, “Considering the important issue of mode of recording of evidence of deaf and dumb victim girl, the appeal is admitted.” Furthermore, it is then stated in para 3 that, “With the consent of the parties, the matter is taken up for final disposal at the stage of admission.”

To recapitulate, it is then pointed out further in detail in para 4 that, “The appellant has been convicted for offence u/s 376(2)(1) IPC for committing rape on a deaf and dumb girl and is sentenced to suffer RI for 10 years and to pay fine of Rs. 10,000/-, in default to suffer RI for three months. He is also convicted for offence u/s 323 IPC. On 16.11.2016, the victim’s brother lodged FIR at Shirur Police Station, Tq. Shirur Kasar, Dist. Beed. As per the FIR, the informant had five sisters and the victim was deaf and dumb. She was aged 23 years. Since 7-8 days prior to the FIR, the victim girl had abdominal pains and was feeling weakness. When she was taken to the Civil Hospital, it was disclosed that she was pregnant for five months. When the informant and his parents made enquiry with her as to with whom she had relations, she pointed by signs the house of the accused and stated that the person residing there had entered her house before Ramjan and used force to press her neck and thereafter committed sex with her. FIR was registered at Crime No. 226/2016 and was investigated into. The investigation revealed that the victim was illiterate and was not even knowing the scientific sign language of the deaf and dumb persons. Her statement was recorded through an interpreter from mentally retarded school and its video recording was done.”

To be sure, it is then revealed in para 5 that, “Shri S.J. Salgare, learned APP submits that, the victim girl has delivered a child and there was DNA testing which proved that the accused was biological father of the child. The accused has taken a defence of total denial. Shri Ghanekar, learned counsel for the appellant submits that, when witness or victim girl is deaf or dumb, her evidence should be recorded as per Section 119 of the Evidence Act. He relies on the judgment of the Apex Court in State of Rajasthan vs. Darshan Singh @ Darshan Lal reported in 2012 AIR SCW (S.C.) 3036, wherein it was laid down that,

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 and write, his statement can be recorded in sign for 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.”

Going forward, it is then brought out in para 6 that, “Shri Ghanekar submits that, since the victim girl was illiterate, first course to record her evidence in writing was not possible but the ld. Trial Judge committed error in recording her statement with the aid of interpreter without giving him oath. Besides, the interpreter was the same person who had recorded her statement u/s 161 Cr.P.C. The ld. Trial Judge was bound to record the signs made by victim girl while giving answers. He argued that, though there is no specific defence that the act was committed with the consent, the prosecution is bound to show that if there was sexual intercourse it was against the will or without the consent of the victim girl. She was major and cannot be presumed to be mentally retarded or idiot. She is capable of giving consent and if the act has taken place with her consent, there would be no offence. He points out that, the victim girl had not disclosed the incident to anybody for a period of more than five months. Even the FIR was not immediately lodged after knowledge of her pregnancy. Shri Ghanekar relies on the evidence of Dr. Babasaheb Dhakane (PW6) to submit that the pregnancy of the victim girl was detected by her relatives in August-2016 only whereas the FIR is filed in November-2016. The victim’s brother has turned hostile. He also pointed out that, as per Section 119, it is mandatory to record the evidence of deaf and dumb person with videography. This has not been followed. The victim girl was not in a position to tell her name and age. No questions were asked to make enquiry about her intellectual capacity. Considering the facts, there was no fair trial and the accused has been prejudiced.”

On the contrary, it is then pointed out in the next para 7 that, “Per contra, learned APP submits that, statement of deaf and dumb was recorded with the help of interpreter and it was also videographed. Her evidence is supported with DNA report which shows that the accused is biological father of the child begotten by her. He refers to the evidence of PW3 that, she has identified the accused at the time of her evidence and showed by signs that he had pressed her throat and had moved her hand on her stomach indicating that the accused is responsible for her pregnancy.”

After hearing both the sides and considering their viewpoint and facts, it is then held in para 8 that, “Considering the facts, the most material issue in this matter is whether PW3 – the victim girl was consenting party or not? She was major and it is nobody’s case that she was not sound. She was capable of giving consent. There are some facts which may support the defence story that she was consenting as there was delay in reporting the matter to police. Nonetheless, there can be reasons which can be accepted for delay in lodging the FIR in such matters.”

More significantly, it is then held in para 9 that, “I find that, the ld. Trial Judge while dealing with a case of deaf and dumb girl ought to have considered the provisions of Section 119 and the apex court’s judgment on the same. The trial court did not verify her understanding capacity. Though evidence of the witness was recorded by appointing an interpreter, the ld. Trial Judge has not followed certain conditions. No oath was administered to the interpreter that he would fully and correctly interpret the questions put to the witness and shall also fully and correctly interpret the answers given by the witness in sign language to the court. As per Section 119 of Evidence Act amended from 03.02.2013, the proviso lays down that, when the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed. The apex court has observed that, the Judge has not only to record the interpretation given by the interpreter but also he has to record the signs made by the witness. This is difficult and now the videography will solve the problem faced by the Judge in recording the signs. These provisions are not followed.”

What’s more, it is then further held in para 10 that, “Considering the facts, it is difficult to determine whether the prosecutrix was a consenting party or not. In the light of these facts, the conviction cannot be sustained and the matter will have to be remanded to the Sessions Judge with direction to record the evidence of PW3-victim girl afresh by following the provisions of Section 119 as interpreted by the Apex Court in Darshan Singh @ Darshan Lal’s case (supra). The Judge shall record the competency to understand and interpret the sign language of deaf and dumb person. The Judge shall give oath to the interpreter for correctly interpreting the questions to the witnesses and the answers given by the victim to the court. Once it is done, the evidence shall be recorded and the same shall be videographed. The prosecution shall make arrangement of the videography of the evidence. The focal point of the evidence should be, whether the act was with consent or without consent. However, the parties shall be at liberty to lead evidence and challenge the same on any other legally permissible point according to law.

It cannot be lost on us that it is then held in para 11 that, “Considering the facts the appeal is partly allowed. The conviction is set aside. The matter is remanded to the trial Court to record evidence of the prosecutrix again and decide the matter afresh. Since the accused is in Jail from 17.11.2016, he is permitted to file fresh Bail Application which the trial Court shall consider on its own merits.”

Not stopping here, it is then further held in para 12 that, “The appellant is directed to remain present in the trial Court on 08.07.2019. The ld. Trial Judge shall hear the matter expeditiously and shall dispose it of within one month from the date of receipt of record and appearance of the parties. The Registrar shall forward the record immediately.” Finally, it is then held in the last para 13 that, “In view of disposal of main appeal, nothing survives in the connected Criminal Application and same stands disposed of.”

In a nutshell, the Aurangabad Bench of Bombay High Court in this notable case seeks to explain how to record the evidence of deaf and dumb rape victim. The Trial Court was directed to follow the procedure of recording such evidence and also to dispose it of within one month as pointed out in the above para. The Trial Court earlier didn’t follow the proper procedure in this regard as has already been explained in detail in the above paras and now it has to comply according to the procedure laid down by the Aurangabad Bench of Bombay High Court. Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.