Evidence by a deaf-mute witness requires stringent safeguards to ensure admissibility and credibility, failing which the conviction cannot stand.

1. This appeal has been filed against the judgment of conviction and order of sentence, dated 25.09.2008 passed by the Sessions Judge, Raigarh District Raigarh (C.G.) in Sessions Trial No. 137 of 2007, convicting the accused / appellant under S.302 of the IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default of payment of fine amount to further undergo R.I. for six months.

2. As per prosecution case, on 28.08.2007 deceased Sakharam came to the house of appellant along with two other persons namely Raghu Rathiya (PW - 2) and Lohari Ram (PW - 12), a deaf and dumb, and all of them had consumed liquor in the house of the appellant. It is said that on account of damage caused to the crop of accused / appellant by the cattle of deceased, some dispute cropped up between deceased and accused and they started quarreling with each other. Raghu Rathiya (PW - 2) intervened and sent the deceased back to his house. After some time the deceased again started hurling abuses at the accused from his house which annoyed the accused and he assaulted on the neck of the deceased by a crowbar as a result of which the deceased died on the spot itself. Unnumbered merg intimation was recorded on 29.08.2007. Unnumbered FIR (Ex.P - 9) was also recorded on the same day. Numbered FIR (Ex.P 9A) was registered against the appellant under S.302 of the IPC. Inquest on the body of the deceased was conducted on 29.08.2007 vide Ex.P - 5. Dead body was sent for post - mortem examination which was conducted by Dr. B.L. Bhagat (PW - 8) on 30.08.2007 vide Ex.P - 8 and he noticed the following injuries: -
(i) Incised wound at the upper part of left side of neck of 20 cm x 9 cm x 8 cm in size, clotted blood in and around the wound, margins were regular. Underlying bone fracture.
(ii) Incised wound at the upper part of lateral aspect of left upper arm of 12 cm x 5 cm x 4 in size.
(iii) Incised wound at the left upper arm in same size just 3 cm below injury No.2 of 10 cm x 3 cm x 2 cm in size. Margins are regular.
(iv) Incised wound at the post aspect of upper part of left upper arm of 5 cm x 6 cm x 5 cm in size.
(v) Incised wound at the middle of left upper arm of 5 cm x 4 cm x 4½ cm in size.
The doctor opined that cause of death of the deceased was syncope as a result of excessive haemorrhage caused by hard and sharp edged object and the death was homicidal in nature. Pursuant to information given by the accused, one crowbar was seized from the house of appellant vide Ex.P - 6. Seized articles were sent for chemical examination to the FSL from where report of Ex.P - 16 was received according to which the crowbar was stained with blood, however, there is no serological report confirming the origin of blood.

3. After completion of investigation charge sheet was filed under S.302 of the IPC against the appellant and accordingly the charge was framed by the trial Court against him.

4. In order to prove the guilt of accused / appellant in the crime in question, the prosecution has examined 13 witnesses. Statement of accused / appellant was recorded under S.313 of the Cr.P.C in which he abjured his guilt and pleaded innocence and false implication. He examined one witness in his defence.

5. After hearing the parties, the Court below by the impugned judgment convicted and sentenced the accused / appellant as mentioned above in paragraph No.1 of this judgment. Hence, this appeal.

6. Counsel for the accused / appellant submits that the trial Court has committed error in placing reliance on the testimony of deaf and dumb witness i.e., Lohari Ram (PW - 12), particularly when the trial Court itself was of view that