IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD. DATED THIS THE 23RD DAY OF MARCH 2011 PRESENT THE HON’BLE MR,JUSTICE SUBHASH B, ADI AND THE HON’BLE MR. JUSTICE N. ANANDA A.No. 1953 2005 A BETWEEN: State of Karnataka By Nesaragi Police Station. Appellant (By Sri, V.M,Banakar, Addi. SPP) AND: 1. Gurupadavva Siddalingavva Hiremath, Age: Major, 0cc: Agriculture, R/o Hanker, Tq. Bailhongal. 2. Shivayya Siddalingaya Hiremath, Age: Major, 0cc: Agriculture, R/o Hanker, Tq. Bailhongal. 3. Basappa Siddaramappa @ Vithalappa Meled, Age: 28 years, 0cc: Agriculture, R/o Hanker, Tq. Bailhongal. 4. Shivappa Basavantappa Naganur, Age: 35 years, 0cc: Agriculture, R/o Hanker, Tq. Bailhongal. 5. Uddappa Sannamallanaik Patil, Age: 28 years, 0cc: Agriculture, R/o Hanker, Tq. Bailhongal. 6. Sakranaik Sannamallanaik Patil, Age: 36 years, 0cc: Agriculture, R/o Hanker, Tq. Bailhongal. 7. Jagadeesh Sannamallanaik Patil, Age: 28 years, 0cc: Agriculture, R/o Hanker, Tq. Bailhongal. 8. Chandranaik Sannamallanaik Patil, Age: 26 years, 0cc: Agriculture, R/o Hanker, Tq. Bailhongal, Dist: Belgaum. Respondents (By Sri. Santosh B. Malagoudar, Adv, for R-1, R-3 and R4; Sri. J. Basavaraj for Sri, Ravi B. Naik, Sr. Adv. for R-2, R5 to R-8) This Cr1. A. is filed u/Section 378(1) and (3) Cr.P,C. by the State PP. praying to grant leave to file an appeal against the Judgment and order of acquittal dated 12.07.2005 passed by the I Addi. Sessions Judge, Belgaum, in S.C.No.36/2000, acquitting the respondentsaccused for the offences punishable under Sections 143, 147, 148, 302, 504 and 506 r/w 149 of IPC and also for an offence punishable under Sec. 25(1) of the Arms Act.. This Appeal coming on for final hearing this day, N. Ananda, J delivered the following: 3 JUDGMENT The State has preferred this Appeal against the Judgment of acquittal of Respondents/Accused 1 to 8 for offences punishable under Sections 143, 147, 148, 302, 504 and 506 r/w 149 of IPC and also acquittal of Accused No.1 under Section 25(1) of the Arms Act. 2. We have heard the learned Addi. SPP for the State and Sri. Santosh B. Msilagoudar and Sri. J. Basavaraj, learned counsel appearing for the respondents/accused. 3. We see from the records that on behaif of the prosecution, P.W.1 to P.W.21 were examined. P.W.11- Goudappa Shiddappa Munnenni who was examined as an eye-witness to the incident of murder is a deaf and dumb person. The learned Trial Judge has recorded the evidence of P.W. 11 in the following manner: “NOTE: The witness is deaf and dumb and as such one Smt. S.S.Hiremath, Teacher, N L-J. 4 I Government Dumb School is appointed as a Commissioner for recording the evidence of the said witness. The name of witness is stated by his wife. The Commissioner appointed by the Court made some signals to the witness in order to make him to take oath and it appears that witness is not in a position to follow the signals given by her and he simply nods his head to and fro. On account of this no oath could be administered to the witness. The photo of the deceased produced in this case was shown to the witness. The witness shows his ignorance about the photo by noding his head to and fro simultaneously moving his hands to and fro. When the Commissioner pointed at the accused with reference to the photo so also with reference to the weapons placed before the court, the witness again nods his head to and fro. The Commissioner on seeing the witness nodding his head to and fro tells the court that the witness does not know anything about this incident. When the Commissioner gives signal to the witness in order to extract answer 4i. C) C C c CD.1 1 0 :CD 3 ) Z CoCoCo CDCD j I Ci2 CD Co r* CD CD CD 0 0 P) P) ) C,) CD (120 a c 0 < c c CDQ CD I ) ;: z i = CD 0 0tI CD CD, 00 CD CD 0 ZCD ) , 0 (12 ‘ — Co ,... CD \ CD 0 QCD $_) j) C 0 C) 0 0 r Co 0 •0 cC, Co r+ :r CD — CD r- Co CD S:)) c:t > — 0 - rt Co CD C r+ . r* CD CD Co rt Co ., -, 0 0 T CD CD J CD Co 0 ) •‘ Co CD > c CD ci. Co — . 0 Co 0 r CD Co 9 Co Co Co CD I2) CD CD CD 0 0 1 CD 0 C) Co -+ Co CD 0 Co ° r = CD CD Co Co 6 4. In a decision reported in (1994) 4 SCC 182 (in the case of Meesala Ramakrishan vs. State of Andhra Pradesh), the Supreme Court has held as under: “15. The Privy çouciI decision is however the main judgment on which the learned Judges of the High Court have relied inasmuch as the two other decisions have relied on what was held by the Privy Council. In that case as well (which came from Ceylon) the appellant had been convicted of murder, The victim’s throat had been cut and she was not in a position to speak but on being questioned regarding the person who committed it, she answered by signs and nods. The question which was examined by the Privy Council was whether the, statement was relevant and admissible. It was held that the statement constituted a verbal statement resembling the case of a dumb person and was relevant and admissible. It was pointed out at p. 26 that Section 32 of the Ceylon Evidence Ordinance (which is in pan materia with Section 32 of our Evidence Act) has used the word “verbal” and not “oral”. Reference was made to Sections 3 and 119 of the Ordinance in this connection. (Parallel 1k” CD ci 2 i & CD CD r CD - CD CD r CD j CD CD CD CD - r’ — ‘ 1 rr cr CD . CD CD Cf CD CD — SD) J, C C C CD - -t CD J - CD CD (12 -J (IQ CD CD :• Q C. “ (j — CD CD CD Cr -1 Cr - H-” rt — H- CD CD Cr J -‘ — -1 — r+ CD C .. Hi Cr C CD - Cr D- C Q $•c,::- CD -+ Cr . H C .t r* CD .- CD L CD < - CD CD :3_- CD Hi Ha CD CD - - CD CD CD - C r+ CD CD CD n Cr Ha Ha — - C r+ Cr CD -: C Cr CD -“ CD D - Ha , Y) g CJD > CD r Ha r CD CD Hi rJD CD Hi CD Hi H-” -.——— N -“ —. Ha (_%) Cr Ha N CD P CD CD ) CD Cr CD Cr CD ) Cr < cu < CD —• - CD 2 D r r-F r- r CD CD CD — CD CD Cr CD CD — PN Ha H-’ Ha CD CD CD -.. Hi t CD () — CD — - Ha Q CrCD(J) CD - CD -. — - CD C CD Q-. CD CD ) CD Cr CD C Ha Cr>CDCr - -J ‘C C) r+ — — CT— -. CD ) CIQ Q CD CD CD < Cr CD Ha Cr CD CD . CD CD < —- cu r- CD CD 2 CD CD CD CD CD C) ‘- < CD — ‘.-+ j r CD —CIQ C Z TT’ CD Hi LID H- . CD —. CD . (IQ CD Cr CD Hi Hi tm - Hi CD C Z —‘ CD rn Cr — C-ID — j N g 8 interpretation of signs. It is true that at some places, the learned Sessions Judge has recorded the signs as well as the interpretations, but the signs made by the witness in answer to several other questions are not recorded but only the interpretations. This is not a correct compliance with Section 119 of the Indian Evidence Act. This also does not enable the appellate Court to know whether the interpretation of the signs is correct or not”. 6. From the evidence of P.W. 11 recorded by the Trial Court, we notice that the learned Thai Judge has not ascertained the competence of interpreter to understand the communications of witness by his signs, so also the competence to interpret the same. The learned trial Judge had not ensured that the interpreter had studied sign language. The learned trial Judge has failed to administer oath to the interpreter. The learned Trial Judge has failed to record the questions put to the witness; the signs by which answers were communicated by witness to the interpreter; N q the interpretation of such signs by the interpreter after understanding such signs. The entire deposition contains signs made by the witness and the observations made by the Court. The learned Trial Judge has observed that the “witness nods his head to and fro”. It has not been mentioned whether it is side ways, upward or downward. The sign of nodding recorded by the trial Judge does not indicate Whether it was an assent or dissent expressed by the witness. 7, We also notice from the evidence recorded by the learned trial Judge that he has not ensured that the questions put to the witness were simple and not complicated and the questions were how effective or understandable. 8. The Supreme Court while referring to the dying declaration recorded by nods and gestures in the case of Meesala Ramakrishan vs. State of Andhra Pradesh reported in 1994(4) SCC 182 at para 20 has held: “20. On the basis of what has been noted above. we hold that dying declaration recorded on 10 S the basis of nods and gestures is not only admissible but possesses evidentiary value, the extent of which shall depend upon who recorded the statement, what is his educational attainment, what gestures and nods were made, what were the questions asked- whether they were simple or complicated and how effective or understandable the nods and gestures were”. 9. Therefore, we are not able to understand or appreciate the evidence of P.W. 11 who according to the case of the prosecution, is an independent eye witness. The learned Trial Judge has not referred to the evidence of this witness in the impugned Judgment. Therefore, we are not in a position to understand and appreciate the evidence of P.W. 11. 10. At this stage, we have been informed that P.W. 11 is still alive. In view of the above, we are of the opinion that the matter has to be remanded to the Trial Court for the limited purpose of examining P.W. ii in the light of the observations made in the decisions cited supra. P p-i. 1. ‘.9i.. t4.C4... 11 11. The Trial Judge after examining P.W. 11, shall record the statement of the accused under Section 313 Cr.P.C if warranted and decide the case on merits, taking into consideration the evidence that may be given by P.W. 11. The learned Trial Judge shall record the details of the witness such as age, parentage, residence, etc. In view of the above, the appeal is accepted. The impugned Judgment is set—aside. The matter is remanded to the Trial Court for the limited purpose of examination of RW. 1 1 in the light of the observations made in the judgments cited supra and in accordance with the provisions of Section 119 of the Evidence Act. The learned trial Judge shall record the statement of the accused under Section 313 CrPC if it becomes necessary in view of the evidence to be adduced by prosecution by examination of RW. 11. The learned Trial judge shall decide the case within a period of six months from the date of receipt of opy of this 1’ order. The learned Trial Judge shall extend the benefit of bail to the Accused during trial. Sc Sd! ]UDGE mkc