Case BriefsHigh Courts

Bombay High Court: Sadhana S. Jadhav, J. allowed an appeal filed against the decision of the trial court whereby the appellant was convicted for offences punishable under Section 376 IPC (punishment for rape) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (punishment for penetrative sexual assault).

The appellant was accused of committing rape upon the prosecutrix on pretext of marriage. He was tried and convicted by the trial court as aforesaid.

Arjun Rajput, counsel for the appellant assailed the judgment of the trial court. Per contra, S.S. Pednekar, Assistant Public Prosecutor appearing for the State supported the impugned judgment.

The High Court noted that evidence of the prosecutrix, on which appellant’s conviction was primarily based, did not inspire confidence. Also, several witnesses turned hostile. The Court stated, “witness may lie, but the circumstances will not lie.” As per the FIR, the appellant and prosecutrix had already made a plan to go out on the day of the alleged incident. It was observed, “The papers of investigation would indicate that the appellant was in love with the prosecutrix and that has led to initiation of criminal prosecution. The parents of the prosecutrix and that has led to initiation of criminal prosecution. The fact that the prosecutrix had voluntarily missed the classes and decided to accompany him would be sufficient to indicate that she was not forced to accompany the appellant.”

The Court noted further, “The appellant seemed to be so frustrated with the criminal prosecution that he made no efforts even to defend himself. In his statement under Section 313 CrPC he has only stated that he does not wish to speak about the incident. The papers of investigation would further indicate that the appellant felt betrayed by the prosecutrix. That it was a love affair between two youngsters, which had landed in criminal prosecution of a young boy.”

In such circumstances, the Court allowed the appeal and set aside the conviction and sentence awarded to the appellant by the trial court. [Gorakshya Arjun Mahakal v. State of Maharashtra, 2019 SCC OnLine Bom 520, dated 13-03-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.B. Shukre and S.M. Modak, JJ. allowed a set of criminal appeals filed against the judgment of Sessions Judge whereby the appellants were convicted under Section 376 (2)(n) IPC and under various sections of Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

The appellants were the husband, parents, neighbours, etc. of the victim. The prosecution alleged that the victim was married to her husband when she was 15 years of age. She was pressurised by her parents. Soon after the wedding, the husband consummated the marriage with the victim. She was not able to resist the advances and acts of the husband who was 29 years of age. One day, on the pretext of celebrating he birthday with her parents, the victim ran away and lodged an FIR against the husband, her parents and other accused. The matter went to trial and the court convicted the accused as aforesaid. Aggrieved thereby, the convicts preferred the present appeals.

Mahesh Rai and A.A. Dhawas, Advocates for the appellants vehemently argued against the conviction and seriously disputed age of the victim at the time of the incident. They relied on evidence of one Vasanti, an employee of Municipal Council, Chandrapur. Notably, Vasanti was a prosecution witness but her evidence wherein she brought birth register proved that the victim was born in 1994 and not in 1999 as claimed by the prosecution. Thus, at the relevant time, the victim was more than 18 years of age. Therefore she could not be treated as a ‘child’ for the purpose of either POCSO or the Child Marriage Act.

The High Court, noting the above evidence stated that the same was reliable. It observed, “After having examined its own witness and after having not declared the witness with the permission of the Court as hostile to the prosecution, it is not permissible under the law for the prosecution to disown its own witness”. On the aspect of other evidence especially the ossification test, the Court relied on Mahadeo v. State of Maharashtra, (2013) 14 SCC 637 and State of M.P. v. Anoop Singh, (2015) 7 SCC 773. The Court stated, “The ossification test would come into picture only when the documentary and other evidence brought on record by the prosecution does not convincingly or beyond reasonable doubt establish the age of the victim, wherever it is relevant”. Thus, the victim not being a ‘child’ at the relevant time, the appellants were acquitted of offences under POCSO and Child Marriage Act. Further, regarding Section 376(2)(n) IPC, it was noted that the victim admitted that after the marriage she did not object to the acts of the husband and therefore even that offence was not established. Hence, the appellants were acquitted of all the charges. [Vimalbai Manohar Doballiwar v. State of Maharashtra, 2018 SCC OnLine Bom 6956, dated 19-12-2018]

Case BriefsHigh Courts

Kerala High Court: A Single judge bench comprising of Alexander Thomas, J. allowed a petition seeking mandamus against Marriage Registrar and directed him to correct errors in petitioner’s marriage certificate in the presence of two witnesses and a signed declaration of his wife expressing her consent thereto.

The petitioner’s wife was employed in USA and he had to submit his papers before the immigration authorities who advised him that the name in his marriage certificate should be the same as in his birth certificate and passport. In order to correct his name as contained in his marriage certificate, the petitioner submitted an application before Marriage Registrar under Section 49 of the Special Marriage Act, 1954 which stipulates correction of erroneous entries in a marriage certificate to be made in the presence of persons married.

The petitioner submitted that his wife was residing in USA and it was not practically feasible for her to come down to Kerala only for the purpose of taking action in relation to his application. It was averred that Section 49(1) permits taking of action for correction of erroneous entries even in the absence of the parties, in the presence of two other credible witnesses.

In view of the above, the High Court held that in case the petitioner’s wife cannot come over to Kerala, then a declaration signed by her may be submitted before the

Marriage Registrar stating that she fully concurs with the petitioner’s for correction of entries in their marriage certificate. Further, it should be ensured that two credible witnesses, preferably parents of the petitioner or that of his wife or any other responsible relatives in their family be present before the Marriage Registrar for effectuating action as envisaged in Section 49(1) of the Act.

Accordingly, a mandamus was issued to the respondent directing consideration of the petitioner’s request.[Rinilraj Raju v. Department of Registration, 2018 SCC OnLine Ker 4895, decided on 31-10-2018]

 

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J.allowed a criminal revision petition filed against the judgment of the Appellate Court whereby it confirmed the order of conviction under Section 304-A and 279 IPC passed by the trial court against the petitioner while reducing the sentence therefor.

The petitioner was accused of causing death of the deceased due to his rash and negligent driving. On the fateful night, according to the witnesses, the petitioner was driving his vehicle at a high speed which hit the deceased who was crossing the road. As a consequence, the deceased succumbed to the injuries sustained. The petitioner was charged, tried and convicted by the trial court under the aforementioned sections. He challenged the said order before the Appellate Authority which, while reducing the sentence imposed, confirmed the order of conviction. Aggrieved thereby, the petitioner preferred the instant petition.

The High Court, after perusal of the record, noted that the prosecution mainly relied on witness testimonies. referring to earlier decisions, the Court observed that the witnesses can no doubt depose as to the manner of driving or speed of the vehicle; however, they cannot render an opinion as to rashness and negligence. It was further noted that there was no evidence to prove whether the vehicle was being driven in a manner which may be construed as rash and negligent by the court. It was held that high speed, by itself, in every case, cannot be a sufficient criterion to bring home guilt of the driver for rash and negligent driving. There was no evidence as to skid marks, type of injuries sustainedly the deceased, etc. In such circumstances, the Court gave benefit of the doubt to the petitioner and acquitted him of all the charges. The petition was allowed and the order impugned was set aside. [Kishore Chand Joshi v. State,2018 SCC OnLine Del 12337, decided on 12-11-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. dismissed an appeal filed against the judgment of the trial court whereby the appellant was convicted for the offence punishable under Section 302 IPC.

The appellant was convicted for the murder of his son. On the fateful day of the incident, wife of the appellant came back home from selling fish and saw that her husband and her son were quarreling as the husband had given the food meant for her, to some other person. Later, the convict and his wife went to sleep on the mezzanine floor of the house while the son was sleeping on the ground floor. The wife woke up on hearing the cries of his son, she ran to the ground floor and saw that her husband was assaulting her son with an iron rod which resulted in death of the son. When the wife tried to stop the appellant, she too was hit by the rod. The appellant threatened her not to tell this to anybody or else she had to face consequences. Subsequently, an FIR was registered and the appellant was convicted by the trial court under Section 302. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court noted that the wife (PW 1) was the star witness in the case. No doubt, in her testimony, she did not fully support the prosecution case. However, the Court observed, that it is a well settled position of law that such part of the evidence of a hostile witness which is found to be trustworthy van always be taken into consideration. In the instant case, PW 1 had supported the prosecution case with regard to earlier incidents of quarrel, she and the appellant going to mezzanine floor. Her evidence of seeing the appellant with iron rod standing near the deceased had gone unchallenged, which was also corroborated by her sister and niece who came running to the house hearing the cries of PW 1. Furthermore, the burden under Section 106 of the Evidence Act shifted on the appellant to prove that how the injuries were sustained by the deceased. The explanation given by the appellant that the deceased fell from the mezzanine floor and thereby sustained injuries were found to be false in light of the evidence of medical expert. In such circumstances, the Court dismissed the appeal. [Babubhai Laxman Bhamaniya v. State of Maharashtra,2018 SCC OnLine Bom 2634, dated 09-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and C. Hari Shankar, JJ. dismissed an appeal filed by the appellant-husband against the order of the family court whereby it granted a decree of divorce in favour of the respondent-wife.

It was contended by appellant that he wasn’t given the opportunity to recall PW 1 for fresh cross-examination as the evidence recorded by the family court was self-destructive attributable to unprofessional approach of the earlier counsel for the appellant. The appellant had filed an application under Section 151 read with Order 18 Rule 17 CPC which was dismissed as withdrawn. The present appeal was filed under Section 19 of the Family Courts Act, 1984.

The High Court considered the submissions made by the parties. It referred to Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 and K.K. Velusamy v. N. Palanisamy(2011) 11 SCC 275. The Court observed that Order 18 Rule 17 CPC is to be exercised sparingly. The provision is not intended to enable the parties to recall any witness for further examination. It is primarily to enable the Court to clarify any issue or doubt by recalling any witness either suo motu or on application of any party so that the Court can itself put questions and elicit answers. Moreover, in the present case, the application filed by the appellant was withdrawn when it came up for hearing. Once the application was dismissed as withdrawn, the appellant could not complain that he wasn’t given the opportunity to re-examine the witness. In such circumstances, the appeal was dismissed. [Rajiv Mehta v. Savita Mehta,2018 SCC OnLine Del 10936, dated 20-08-2018]

OP. ED.

Rule 13 of Chapter II of Part VI of the Bar Council of India Rules under the Advocates Act, 1961 specifically state that:

  1. An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardising his client’s interests.

Section 120 of the Evidence Act, 1872 only deals with who may testify as a witness and does not lay down any restriction or restraint on the advocate to be a witness in the case where he is acting as an advocate. A counsel for a party should not be his witness in the same case without retiring from the case as counsel. It is a sound principle that a person who is appearing as counsel should not give evidence as witness.

If, however, in the course of proceedings it is discovered that the advocate is in a position to give evidence and it is desirable that he should do so, his proper course is to retire from the case in his professional capacity. Failure to do the same would amount to professional misconduct under Section 35 of the Advocates Act, 1961. However, if the advocate knew or had reason to believe since the very beginning that he will be an important witness in the case, he has a choice either to appear as a witness or to appear as an advocate. Once he exercises the said choice and chooses to be an advocate in the case, then he cannot be examined as a witness on behalf of the opposite side by retiring from the suit at a subsequent stage.

It is against the etiquette of the Bar that a member of the profession should give evidence in the case in which he is engaged as counsel and no self-respecting counsel would be prepared to conduct a case for the defence after having been called as a witness for the prosecution. However, a practitioner, who is acting on behalf of one of the parties and conducting litigation for him is debarred under Section 126 of the Evidence Act, 1872 to disclose the communications made to him without the express consent of his client.

If, however, a court comes to the conclusion that a trial will be embarrassed by the appearance of an advocate who has been called as witness by the other side, and if, notwithstanding the court’s expression of its opinion, the advocate refuses to withdraw, in such a case, the court has inherent jurisdiction to require the advocate to withdraw. Nevertheless, a counsel is not incompetent to give evidence whether the facts to which he testifies occurred before or after his retainer. It should be noted that merely because the name of an advocate appears in the list of witnesses of opposite party, his vakalatnama does not automatically get relinquished.

However, recently in Kokkanda B. Poondacha v. K.D. Ganapathi[1] the Supreme Court has held that one of the parties in a suit cannot cite the advocate representing the other side as a witness in the list without indicating the purpose for the same. This will ensure that the other side is not deprived of the services of the advocate on frivolous grounds.

Conclusion

Therefore, in light of the above, an advocate can appear as witness in certain instances. However, it should be noted that an accused is entitled to be defended by a counsel of his choice and the prosecution cannot fetter that choice merely by serving subpoena on the advocate to appear as a witness. Furthermore, the Court is also bound to see that the due administration of justice is not, in any way, embarrassed by permitting the advocate to appear as witness.

 

* Associate, Khaitan & Co., New Delhi, email – susanah.naushad@khaitanco.com

[1]  (2011) 12 SCC 600.

Case BriefsHigh Courts

Punjab and Haryana High Court: The High Court of Punjab and Haryana decided on the matter arising before it from a civil suit pending before the Court of Civil Judge (Junior Division), Samrala, the issue whether Sucha Singh (petitioner witness), who was residing at USA, can be allowed to be examined by way of Video Conferencing.

The Court vide order dated 16.10.2015 passed in CR 6571 of 2014 allowed the same stating that the witness can be confronted with the documents with close proximity to the camera. Petitioner was given liberty to choose a public authority where such facility was available and inform the Court. Alternatively, the petitioner was given option to identify the Indian Consulate in the nearest place from his residence and produce the Court order to secure the permission for hearing. The petitioner was to make himself available during the court working hours in India and give a date which is mutually convenient to the Court and the Consulate or the Public Office.

The Court was of the view that the evidence of the petitioner was very material and therefore his evidence was required to be recorded. However, noticing the difference of time between India and USA, the Court was of the opinion that approaching the Public Authority at night time to allow video conferencing facility was unfeasible. The Court opined that as video conferencing is now available through many applications like Facetime, Whatsapp, Skype etc. there is no necessity of approaching the nearest Consulate.

The Court allowed examination of the petitioner by way of video conferencing through Mobile or Computer on an application, and the time and date of the same would be communicated to the trail court. The witness is to be identified by the opposite party or any other person nominated by them. The Court further ordered supply of photocopy of any document which is sought to be put to the witness in advance to the opposite party and witness himself, so that he may answer on the said document. [Sucha Singh v. Ajmer Singh, 2018 SCC OnLine P&H 637, order dated 17-05-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Ramendra Jain, J., allowed recalling and re-examination of prosecution witness no. 6 (PW 6)- handwriting expert.

In the matter at hand, a question arose as to the veracity of signatures of the attesting witness to the Will in question. To prove the veracity of signatures, handwriting expert (PW 6) was called. However, he gave his report regarding only one out of two signatures of the attesting witness to the Will. The petitioner prayed for recalling the said witness for re-examination, which was disallowed by the trial court. That decision was challenged in the instant revision.

The High Court found merit in the revision for the simple reason that there was an inadvertence on the part of PW 6 in giving report only in respect of one out of two signatures of the attesting witness. The Court held, ‘no litigant should be non-suited on account of inadvertent lapse of the witness’. Further, recalling and re-examination of PW 6 would neither change nature of the suit nor cause any prejudice to the opposite side. In view of the above, the revision was allowed and re-examination of PW 6 was directed. [Ram Lal v. Lakhbir Singh,2018 SCC OnLine P&H 622, dated 01-03-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Mukta Gupta and Navin Chawla, JJ. partly allowed an appeal, modifying the appellant’s conviction under Section 302 to Section 304 Pt. II IPC, consequently, reducing the sentence thereunder from life imprisonment to RI for 7 years while upholding the conviction and sentence under Section 25 of the Arms Act.

The brief facts of the case are that at around 9:00 p.m. on 07.03.2012, the deceased was allegedly stabbed by the appellant following a quarrel between them. Harish (PW 4), was the sole witness to the crime, while Ashok (PW 5) And Charan Pal (PW 6) had arrived shortly after the occurrence. The deceased was taken to the hospital by the trio where he was declared ‘brought dead’. PW 4 deposed that he had been taking a walk after a meal and upon reaching the 19 Block Chowk near a shop, he saw the appellant and deceased quarrelling, soon after which, the appellant raised a knife and stabbed the deceased on the chest. The resulting commotion caused the public to assemble near the crime scene, among which PW 5 and PW 6 were also present. They deposed to seeing the deceased lying in a pool of blood and also deposed to PW 4 being present there. The appellant was arrested soon after and he disclosed the location of a knife which was recovered soon after. The FSL report opined that the injury was ante-mortem, sufficient in the ordinary course to cause death, and was delivered by a single-edged sharp weapon, which could have been the recovered knife. The blood stains on the clothes of the witnesses matched with the blood of the deceased, also there was enough evidence at the crime scene to tie the occurrence to that particular place.

The appellant argued that the prosecution did not put forward any other eye witnesses except PW 4, whose deposition cannot be relied upon as he is an uncle of the deceased and hence, an interested witness. The Court rejected this argument, stating that there was nothing in PW 4’s deposition which could be doubted upon. He lived in the vicinity of the crime scene, and was out for a walk at 9:00 p.m.. Further, no reason was put forth suggesting that PW 4 would falsely implicate the appellant.

The Court relied on the Supreme Court judgment of State of A.P. v. S. Rayappa(2006) 4 SCC 512 while rejecting this contention, where the Supreme Court had elaborately stated that a testimony of witness inspiring confidence cannot be discarded on the sole ground that he, being, a relative of the deceased is an interested witness. The term ‘interested’ postulates that the person concerned must have some direct interest in seeing the accused person being convicted, either because of animosity or some other reason. The Court had further observed that it has become increasingly difficult to have witnesses depose before the Court because of various reasons including harassment and intimidation, as a result of which, criminal cases are being dragged on for years. The Supreme Court had opined that in such circumstances the only natural witness available to the prosecution would be a relative of the deceased. The Supreme Court had also shed light on the mindset of such witnesses, stating that witnesses who are related to the deceased would, in all probability, depose in such a way so as to implicate the real culprit so that the guilty is punished. The only catch being that related witnesses are to be examined cautiously.

The Court, however, agreed to the argument that there was no pre-meditation on part of the appellant and the case fell under Exception 4 to Section 300 IPC. Appeal partly allowed. Sentence modified. [Deepu v. State,  2017 SCC OnLine Del 12402, decided on 16.12.2017]

Case BriefsHigh Courts

Kerala High Court: While deciding upon the issue that whether the lawyer who is appearing for a party can be removed at the request of the opposite party, the Division Bench of A.M. Shaffique and K.Ramakrishnan, JJ., observed that two major conditions must be satisfied in order to direct the removal of a lawyer appearing for a party, they are namely; that the direction to relinquish the ‘vakalath’ by the counsel appearing should not jeopardize the interest of the party for whom he appears, and secondly the examination of the Advocate as a witness is indispensable and that the disengagement would not jeopardize the interest of the party for whom he appears.

In the instant case, the petitioner cited the terms of Rule 6 of the Bar Council of India Rules, and prayed before the Court to prohibit the respondent’s Advocate to appear on behalf of his party for the case because as per Rule 6 if any member thereof is related to the Advocate or comes within the relationships mentioned in the Rule, then such Advocate shall be forbidden to appear on behalf of his party. The petitioner further contended that he intendeds to examine the Advocate of the respondent as a witness.

Perusing the contentions, the Court observed that the petitioner had not mentioned any list citing the respondent Advocate as a witness, and moreover if the counsel is directed to relinquish the ‘vakalath’ it will jeopardize the interest of the respondent. [Kabeer v. Nazrin, 2017 SCC OnLine Ker 41,  decided on 05.01.2017]

Case BriefsSupreme Court

Supreme Court: In the matter where the accused persons has sought for recall of the witnesses under Section 311 read with Section 231(2) CrPC on the ground of illness of the counsel, the Bench of Dipak Misra and U.U. Lalit, JJ held that recalling of witnesses as envisaged under the said statutory provision on the grounds that accused persons are in custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill and magnanimity commands fairness should be shown, are not acceptable in the obtaining factual matrix. considering the fact that a number of counsels were engaged by the defence, the Court held that in such a situation recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occasion when such a ground may weigh with the court, but definitely the instant case does not arouse the judicial conscience within the established norms of Section 311 CrPC for exercise of such jurisdiction.

Referring to a series of decisions where it was held that a liberal approach needs to be followed while allowing the recall of witnessed, the Court said that the decisions which have used the words that the court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean “the liberal approach” shall be the rule and all other parameters shall become exceptions. Recall of some witnesses by the prosecution at one point of time, can never be ground to entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind of reasoning can be dangerous.

The Court further said that a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck.

In the case at hand, the prosecution had examined all the witnesses. The statements of all the accused persons, i.e. 148 in number, had been recorded under Section 313 CrPC and the defence had examined 15 witnesses. Taking note of these facts, the Court said that the foundation for recall, as is evincible from the applications filed, does not even remotely make out a case that such recalling is necessary for just decision of the case or to arrive at the truth. [State of Haryana v. Ram Mehar2016 SCC OnLine SC 857, decided on 24.08.2016]

Case BriefsHigh Courts

Delhi High Court: Disposing of an appeal where the appellant was convicted for the offence under Section 9(k) of the Protection of Childen from Sexual Offences Act, 2012 for aggravated sexual assualt of a deaf and dumb minor, and awarded rigorous imprisonment for six years with fine of Rs 5000, the Bench of Mukta Gupta, J. held that though charged with a major offence an accused can be convicted for a minor offence, however the vice-versa is impermissible.
Though the appellant was charged under Section 7 of the POSCO Act for sexual assault punishable under Section 8 wherein the minimum punishment is 3 years extending to 5 years with fine, he was convicted under Section 9(k) for aggravated sexual assault. The appellant had contented that since the prosecutrix, who was deaf and dumb, could not be cross-examined, her testimony cannot be read in evidence and even if the offence is proved against the appellant, the same would fall under Section 7 punishable under Section 8 and not under Section 9(k) punishable under Section 10 of the POCSO Act.
Relying upon State of Rajasthan v. Darshan Singh, (2012) 5 SCC 789 that Section 119 of the Evidence Act provides that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, the Court observed that the prosecutrix had explained the incident through her drawings and through gestures to her mother for the purpose of cross-examination. The Court observed that the purpose of cross-examination is to ascertain the truth in relation to the accusation levelled against an acused and discretion vests 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. 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 prohibited questions without reasonable grounds and Section 138 provides that cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief.
The Court observed that “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.”
As for the nature of the offence, the Court observed that in the facts of the case it 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 trial court. Observing that the conduct of the appellant in sexually assaulting a deaf and dumb girl who was not in a position to protect herself fully warranted maximum punishment, the conviction was altered to one for the offence under Section 7 and punishable under Section 8 and the order on sentence was modified to rigorous imprisonment for 5 years with fine of Rs 10,000. [Chander Singh v. State, 2016 SCC OnLine Del 3574, decided on 03.06.2016]