SUNIL KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The appellant has laid a challenge to his conviction and sentence passed by the learned trial Court in Sessions trial No.2 of 2004 decided on 27/29.11.2004, whereby he has been sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo simple imprisonment for a period of one year and three months, for attempted rape on the prosecutrix, aged about 16 years, who was deaf and dumb.

(2.) In brief, the prosecution story can be stated thus. On 4th August, 2003, around 7 p.m., the prosecutrix was alongwith her sister and mother Kiran Bala (PW1) while returning from their fields. PW1 aforesaid was ahead of all, followed by her daughters. When PW1 aforesaid reached near her house, she noticed that the prosecutrix was not with them, thus, she started searching for her on the way and in and around the agricultural fields. During search, the father of the prosecutrix also met them, who was returning from the Bazaar. Kiran Bala informed him about missing of their daughter. He also joined them for locating her.

(3.) Shri Ashwani Kumar Sharma, learned counsel for the appellant led me through the evidence on record and vehemently argued that the Compromise deed Ext.PW1/A is not worthy of credence at all as the alleged admission is neither voluntary nor signed by the accused of his own volition. Further that the statement of the prosecutrix was neither recorded by signs and gestures made by her before the Court with the aid of Shashi Bala, who claimed herself to be an expert in interpreting signs of deaf and dumb witness is of any consequence, as the prosecutrix was never her student nor she understood her signs as well. Even it is also not decipherable from the evidence as to how the questions were put to the prosecutrix and in what manner these were answered by the prosecutrix. Thus, relying upon such a statement has caused miscarriage of justice.