Crl.O.P.(MD)No.

3197 of 2020

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 26.02.2020

CORAM:

THE HONOURABLE MR. JUSTICE A.D. JAGADISH CHANDIRA

Crl.O.P.(MD).No. 3197 of 2020

and Crl.M.P.(MD) No. 1677 of 2020
Munichamy ...Petitioners/A1

Vs.
State rep. by
the Inspector of Police,
All Women Police Station,
Manamadurai,
Sivagangai District.
(Crime No. 16 of 2016).
...Respondent/Respondent

PRAYER: This Criminal Original Petition has been filed under Section
482 of Criminal Procedure Code, to ESCHEW/STRIKE DOWN EVIDENCE
OF PW.6/LATHA dated 04.02.2020 recorded in S.C.No.56 of 2017 on
the file of the learned Sessions Judge/Mahalir Neethimandram (Fast
Track Mahila Court) Sivagangai, Sivagangai District and consecutively
direct the learned trial Judge to record the evidence as mandated
under Section 119 of Indian Evidence Act.

For Petitioner : Mr.A. Thiruvadi Kumar

For Respondent : Mr.S.Chandrasekar
Additional Public Prosecutor

For Intervener/Victim : Mr.V. Kannan

1/10

http://www.judis.nic.in
 Crl.O.P.(MD)No. 3197 of 2020

ORDER

The Criminal Original Petition has been filed to eschew/strike

down the evidence of P.W.6/Latha, dated 04.02.2020 recorded in

S.C.No.56 of 2017 by the learned Sessions Judge/Mahalir

Neethimandram (Fast Track Mahila Court) Sivagangai, Sivagangai

District and also sought for a consequential direction to record the

evidence as mandated under Section 119 of Indian Evidence Act.

2. The petitioner is accused No.1 facing trial in S.C.No.56 of

2017 before the learned Sessions Judge/Mahalir Neethimandram (Fast

Track Mahila Court) Sivagangai, Sivagangai District for the offence

under Section 376 of IPC.

3. The case of the prosecution is that, Six months prior to

20.07.2016 the petitioner herein had committed rape upon P.W.

6/Latha/Victim who happened to be a mentally retarded girl and

further averment is that the other accused had abused the mother of

the victim when they had questioned the same. In this case,

prosecution has so far examined seven witnesses out of them

P.W.6/Latha/the victim was examined on 04.02.2020. The victim

P.W.6/Latha after the alleged occurrence had stayed in the Home

2/10

http://www.judis.nic.in
 Crl.O.P.(MD)No. 3197 of 2020

which is run by P.W.7/Sarala. During trial P.W.6/Latha has given

evidence through sign language which came to be interpreted by P.W.

7/Sarala pursuant to which the evidence came to be recorded. It is the

grievance of the petitioner is that the evidence of P.W.6/Latha which

came to be recorded by the trial Court by interpretation of PW7,

ignoring the provisions of Section 119 of Indian Evidence Act and the

directions issued by this Court, has caused serious prejudice to the

defence. Since, PW7/Sarala is neither an interpreter nor a special

educator working in the special school for deaf and dumb children and

further the recording of such statement had not been videographed,

thereby the petitioner has been seriously prejudiced. The present

petition has been filed seeking to eschew the evidence of P.W.6/Latha

recorded on 04.02.2020 and to record the evidence afresh as per the

mandate of Section 119 of Indian Evidence Act and the directions

issued by this Court.

4. The learned counsel for the petitioner would submit that the

victim/PW6 is a Dumb witness unable to communicate verbally and as

per mandate of Section 119 of the Indian Evidence Act, the Court shall

take the assistance of an interpretor or a special educator and as per

the Circular of the Madras High Court in ROC.No.1729/2010/RR, dated

3/10

http://www.judis.nic.in
 Crl.O.P.(MD)No. 3197 of 2020

02.06.2010, the interpretor or special educator has to be selected

from the list available with the Court, which has not been followed in

this case thereby causing serious prejudice to the defence. In support

of his contention, he would rely on the decision of this Court reported

in 2014-2-LW(crl.) 417 in Mariyadoss v. State by the Inspector

of Police, All Women Police Station, Kumbakonam and submit

that the learned trial judge has not followed the mandate and not

ascertained the fact whether the victim is capable of giving evidence

by writing. PW7 is not a qualified interpretor or a special instructor in

a special school. He would further submit that despite the objections

made by the counsel for the petitioner/accused. The learned judge

had continue to record the evidence causing prejudice to the petitioner

and thereby he would pray to eschew the evidence of the victim/PW6

and the evidence of PW7/Interpretor and to record the evidence afresh

as per the mandate of Section 119 of the Indian Evidence Act and in

accordance with the circular of this Court dated 02.06.2010.

5. The learned Additional Public Prosecutor appearing for the

respondent/police would submit that the evidence of PW6/victim has

been completed with the aid of interpretor/PW7. However, he would

submit that there is no findings of the learned trial judge that whether

4/10

http://www.judis.nic.in
 Crl.O.P.(MD)No. 3197 of 2020

the victim is capable of giving evidence through writing. Further, the

mandate of Section 119 of Indian Evidence Act and the directions of

this Court have not been followed. He would also submit that PW7 is

not a special educator and also she is not in the panel of interpretor

available with the Court.

6. The learned counsel for the intervenor/defato complainant

would submit that recording of evidence of the victim has been

completed. He would further submit that this Court on earlier occasion

in Crl.OP.No.11326 of 2019 dated 23.09.2019 had directed the trial

judge to complete the trial in SC.No.56 of 2017 within a period of six

months from the date of receipt of the order and that the period is

about to get over. He would further submit that if this Court allowing

the petition, a direction may be issued to the learned trial judge to

complete the trial within the time frame fixed by this Court.

7. Heard the counsel and perused the materials available on

record.

8. It is the case of the petitioner that the evidence of

PW6/Latha/victim was recorded with the help of PW7/Sarala who had

5/10

http://www.judis.nic.in
 Crl.O.P.(MD)No. 3197 of 2020

interpreted her. It is the grievance of the petitioner that the said

Sarala is not a Special Educator and that she is not an interpreter

empanelled, as per the circular of this Court. Further, grievance is

that the learned trial judge had not followed the mandate of Section

119 of the Indian Evidence Act. He had also relied on the judgment of

this Court reported in 2014-2-LW(crl.) 417 in Mariyadoss v. State

by the Inspector of Police, All Women Police Station,

Kumbakonam.

9. It is apposite to refer to the relevant paragraphs 12 and 13 of

the judgment mentioned above :-

12. Section 119 of the Evidence Act as amended

by the Parliament with effect from 15.03.2013 reads
as under:
“119. 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; 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 eductor in recording the
statement, and such statement shall be videographed.”

6/10

http://www.judis.nic.in
 Crl.O.P.(MD)No. 3197 of 2020

13. The Madras High Court has issued a circular

in R.O.C. No. 1729/2010/RR, dated 02.06.2010 to all
the Subordinate Courts, containing a list of Advocates
who are trained to provide assistance to the Court for
recording the evidence of deaf and dumb witnesses.
The list has been prepared for all the Districts in the
State and the mobile numbers of the Advocates are
also given. This R.O.C was issued pursuant to the
direction by this Court on 30.11.2009 in W.P.(MD) No.
5802 of 2006. Apart from the names of the
Advocates, the list also contains the address of Special
Schools for deaf and dumb in Tamil Nadu from where
the Courts can requisition the service of teachers for
this purpose. As regards the expenses for
videographing the evidence of a dumb witness, it
should be defrayed from the contingent fund. The
Judicial Officer who is vested with contingent fund in a
district, shall make available necessary funds for
videographing when a request is made by a Presiding
Officer of a Court under his administrative control”.

10. As stated above, it is seen that the evidence of the

victim/Dumb witness has not been recorded in accordance with the

mandate of Section 119 of the Indian Evidence Act and as per the

directions in the circular dated 02.06.2010 in ROC.No.1729/2010/RR

In view of the same, the evidence of PW6/Latha and PW7/Sarala

7/10

http://www.judis.nic.in
 Crl.O.P.(MD)No. 3197 of 2020

recorded in SC.No.56 of 2017 on the file of the learned Sessions

Judge/Mahalir Neethimandram (Fast Track Court), Sivagangai is

eschewed/struck down.

11. The prosecution shall take evidence of the PW6/victim afresh

following the mandate of Section 119 of the Indian Evidence Act and

as per the direction of this Court in Circular in ROC.No.1729/2010/RR,

dated 02.06.2010. The interpretor shall be selected and fixed by the

trial Court from the panel as per the Circular of this Court in ROC.No.

1729/2010/RR, dated 02.06.2010 within one week from the date of

receipt of a copy of this Order and the evidence of the victim with the

aid of the interpretor shall be recorded within a period of two weeks

thereof. The petitioner/accused shall cross examine the witness and

the interpretor on the same day of their recording of evidence in chief.

12. It is also brought to the knowledge of this Court by the

learned Additional Public Prosecutor that as on date the Special Public

Prosecutor has not been appointed to the concerned trial Court. The

District Collector, Sivagangai District is directed to take steps to direct

the Director of Prosecution to appoint a prosecutor or direct the

Jurisdictional Assistant Director of Prosecution to conduct the

8/10

http://www.judis.nic.in
 Crl.O.P.(MD)No. 3197 of 2020

prosecution of this case without any further delay. Further, it is made

clear the learned judge shall take into consideration the earlier order

passed by this Court in Crl.OP.No.11326 of 2019 dated 23.09.2019

and to complete the trial on day to day basis.

13. With the above directions, the Criminal Original Petition

stands disposed of. Consequently, connected miscellaneous petition is

closed.

26.02.2020
Index : Yes / No
Internet : Yes / No
ksa

To

1. The Sessions Court/Mahalir Neethimandram,

Fast Track Mahila Court, Sivagangai,
Sivagangai District.

2. The Inspector of Police,

All Women Police Station,
Manamadurai,
Sivagangai District.

3. The District Collector,

Sivagangai District.

4. The Additional Public Prosecutor,

Madurai Bench of Madras High Court,
Madurai.

9/10

http://www.judis.nic.in
 Crl.O.P.(MD)No. 3197 of 2020

A.D. JAGADISH CHANDIRA, J.

ksa

Crl.O.P.(MD).No.3197 of 2020

26.02.2020.

10/10

http://www.judis.nic.in