The court established that proper procedures must be followed when recording statements of witnesses unable to communicate verbally, including the use of qualified interpreters and videography.

ORDER

1. The present bail applications have been filed under Section 439 Cr.P.C. The petitioners have been arrested in connection with F.I.R. No.78/2022, registered at Police Station Pratapnagar, District Bhilwara, for the offences punishable under Sections 376(2)(L) IPC and Section 5(J)(2)/6, 5(K)(G)/6 of the POCSO Act.

2. Heard learned counsel for the petitioners and learned Public Prosecutor. Perused the material available on record.

3. As per prosecution, the prosecutrix who is deaf and dumb was subjected to sexual assault- rape by the present petitioners at Mataji ka Kheda in the early morning near a pond. The police after investigation arrested the petitioners in connection with the alleged crime and filed charge sheet against them for offences under Section 376(2)(L) IPC and Section 5(J)(2)/6, 5(K)(G)/6 of the POCSO Act.

4. Learned counsel for the petitioners vehemently submitted that the statement of the prosecutrix (P.W.7) has been recorded before competent criminal court on 20.07.2022, in utter disregard of provisions contained in Section 119 of the Indian Evidence Act. Learned counsel for the petitioners submitted that since, the statement of prosecutrix (P.W.7) has been recorded in utter disregard to Section 119 of the Indian Evidence Act, the same are not admissible in the eyes of law and thus, there remains no evidence available on record connecting the present petitioners with the alleged crime.

5. Learned counsel vehemently submitted that the Court in order to enable itself to record statements of the prosecutrix called a signs language specialist namely Vidya Sharma, however, she shown her inability to assist the Court in the matter, as prosecutrix who has not studied in the school established for students with special needs was unable to understand her signs. Learned counsel submitted that entire statement of the prosecutrix were recorded as per the interpretation done by her sister Kamla and father Narayan.

6. Learned counsel submitted that statement of prosecutrix (P.W.7) communicated by gestures, recorded as per the interpretation offered by father and sister of the prosecutrix being interested interpreters cannot be relied upon and makes the evidence unreliable.

7. Lastly, learned counsel for the petitioner submitted that as per the language used in Section 119 of Indian Evidence Act, in case, witness is unable to communicate verbally, the Court shall take assistance of an interpreter or a special educator in recording the statement and such statement shall be videographed. However, in the present case, no videography of the statement was recorded.

8. Reliance was placed on the judgment of Hon'ble Supreme Court of India in the case of Kumbhar Musa Alib Vs. State of Gujarat reported in (1996) AIR (Gujarat) 101 and in the case of State of Rajasthan Vs. Darshan Singh @ Darshan Lal (Criminal Appeal No.870 of 2007), decided on 21.05.2012.

9. On these ground, he implored the Court to enlarge the petitioners on bail.

10. Learned Public Prosecutor opposed the bail application.

11. Section 119 of the Indian Evidence Act, reads as under:-

'119. Witness unable to communicate verbally. -

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.

Provided that if 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 video graphed.'

12. Admittedly, the prosecutrix is a deaf and mute person. She communicated through gestures only. The competent criminal court at the time of recording of her statement called a signs language specialist to assist it in recording of the statements. The signs language specialist, however shown her inability to do the same. It is further evident that the statements of prosecutrix were