BHAGWAN S/O SITARAM ARDEversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:40139


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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                                  CRIMINAL APPEAL NO. 391 OF 2016

                 Bhagwan s/o Sitaram Arde,
                 Age 45 years, Occu. Labour,
                 R/o Satona (Kh.), Taluka Partur,
                 District Jalna.                                    … Appellant
                                                                     [Accused]
                         Versus

                 The State of Maharashtra                           … Respondent
                                                   …..
                          Mr. Sudarshan J. Salunke, Advocate for the Appellant.
                             Mrs. A. S. Mantri, APP for the Respondent-State
                                                   .....

                                           CORAM :        ABHAY S. WAGHWASE, J.
                                           Reserved on        : 01.09.2026
                                           Pronounced on      : 03.09.2026

                 JUDGMENT :


                 1.      Convict for offence under Section 354 of IPC hereby takes

                 exception to the judgment and order of conviction dated 30.05.2016

                 passed by learned Sessions Judge, Jalna in Sessions Case No. 02 of

                 2012.



                 2.      In short, prosecution was launched against present appellant on

                 accusations that, on 26.01.2011 victim, a differently abled girl, had

                 been to reach tiffin to her father, was taken by accused to the lavatory

                 behind the school and she was raped. Victim narrated the incident by
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special signs and gestures, resulting into FIR by father which formed

basis for registration of crime bearing no. 84 of 2011 for offence

under Section 376 of IPC. Trial was conducted, during which,

evidence of as many as 8 witnesses, adduced by prosecution, was

appreciated and learned trial court was pleased to hold that offence of

Section 376 IPC has not been proved to be made out, rather offence

of Section 354 IPC is made out and accordingly, convicted the

appellant for the same. Exception is now taken to the said judgment

and order of conviction.



3.    Heard. Learned counsel for the appellant would plead

innocence and claim false implication. He would submit that there is

no convincing, cogent and reliable evidence. That, moreover,

according to him, victim being deaf and dumb, was not in a position

to report anything, however, by use of interpreter, her evidence is

accepted and conviction is recorded. According to him, medical

evidence also did not support prosecution story and there was no

convincing or legally acceptable evidence about accused committing

any act of rape and therefore, learned trial court rightly acquitted the

accused from said charge, but according to him, learned trial court

erred in returning the guilt for offence under Section 354 IPC.

Learned counsel would point out that, most of the prosecution
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witnesses turned hostile. For all above reasons, he attributes incorrect

appreciation on the part of trial court and prays to allow the appeal

by setting aside the impugned judgment.



4.    Learned APP, who would justify the judgment and order of

conviction, would point out that victim was admittedly deaf and

dumb. That, disadvantage of the same was taken by accused. That,

prosecution witnesses had seen accused taking her to the toilet behind

the school and he was spotted removing clothes of victim and about

to commit offence. That, apparently, major offence of rape was

averted, but as offence of outraging modesty was made out, according

to her, learned trial court committed no error in accepting the

evidence, more particularly of PW2 and the Interpreter PW9.

Resultantly, she prays to dismiss the appeal for want of merits.



5.    Re-appreciated the evidence on record. Case of prosecution is

rested on as many as 11 witnesses, but crucial evidence is of PW1

(father), PW2, PW3 and PW9.



6.    PW1 father deposed that, his daughter is dumb. The incident

occurred on 26.06.2011 i.e. on the day when his victim daughter was

proceeding to hand over tiffin to her uncle. That time, this witness
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was in his shop. Around 11.30 a.m., Bhojiram, Digambar, Balasaheb

and Pralhad told him that his daughter was crying behind the Urdu

School and that she had no clothes on her person. Accordingly he

went there and noticed that his daughter’s clothes were torn and he

brought her home. He deposed that when he had been to the spot, he

had seen accused in the toilet who fled on seeing them. He deposed

that, after reaching home, victim daughter informed his wife by

making gestures and so he brought her to Police Station and informed

the incident to police.



      Above witness is subjected to cross, wherein details of the

school premises are sought to be obtained. He is asked about the

population of the village. He denied that children were playing on the

play ground of the school. After giving distance of his shop from the

spot, in cross he answered that when he saw accused at the spot, it

was around 12.00 to 12.30 noon. Again in cross he confirmed being

informed by Bhojiram, Digambar, Balasheb and Prahlad and then he

reaching the said spot within 10 minutes. In para 8 of the cross, he

answered that, he had informed in FIR about victim informing his

wife by making gestures that she was raped. However, the word rape

was shown to be missing and is thus an omission.
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7.    PW2 Jafarkhan deposed at Exhibit 35 that, on 26.06.2011

around 9.30 p.m. he had been to the Deshmukh Tea House and work

of lift irrigation was going on near Zilla Parishad School and he was

watching the work by standing on a cement pipe, and he claims to

have seen victim in the school premises and had further seen accused

coming in the school premises from the backside, holding hand of

victim and taking her towards toilet and therefore, getting doubtful,

he claims to have entered the school premises from over the

compound and saw that accused had taken victim behind the toilet,

removed his pant and was applying condom and therefore he sensed

something wrong. He saw Digambar Bhojiram, Balasaheb and Pralhad

and he informed them about what he saw and they all went towards

the toilet and saw both legs of victim on the shoulder of accused and

victim to be in naked condition and then, accused by holding his pant

fled from the spot.



      In cross, he answered that whatever he witnessed had occurred

at the backside of the toilet. He was in the school premises for 15

minutes or so. He admitted that he did not meet family members of

victim. In para 5, suggestions are given about Gram Panchayat

Elections and his father contesting the same, but he denied that an
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inquiry was conducted regarding encroachment of land by his father

for conducting business.



8.    PW3 Digambar, a Chairman of School Management Committee,

Zilla Parishad, though turned hostile, he deposed that on 26.06.2011,

he himself, Balasaheb, Bhojiram and Pralhad had been to the school

premises for some meeting on Sunday and while they were parking

their vehicles and about to enter the school, they heard cry of a girl.

That, some boys were playing there. On hearing the cry, they went to

room no.5 and found a girl crying there and when she was questioned

the reason for crying, she was unable to speak as she was dumb and

therefore her father was informed. After stating so much, he did not

support prosecution, but his above discussed testimony can definitely

be taken into account.



9.    PW4 deposed at Exhibit 38 that, he was working as Special

Educator in the school meant for deaf and dumb students and on

03.07.2011, police had requested him for recording statement of a

girl who was deaf and dumb. In para 4, he deposed that accordingly

he recorded statement of the girl. That, she was illiterate. According

to him, on inquiry, she made gestures that her hand was caught hold,

she was dragged, she kicked and slapped him, rescued herself and
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ran towards the flour meal. Report to the above extent was submitted

which he identified to be at Exhibit 41. He identified the victim.



      While under cross, he answered that he was Diploma Holder in

Special Education in Hearing Impaired (DSEHI) and that he was

trained to provide training to deaf and dumb people.



10.   PW5 and PW6 did not support prosecution. PW7 is the PSO

who recorded FIR. PW8 is the Naib Tahsildar who conducted Test

Identification and PW9 is the Teacher in a residential school meant

for deaf and dumb students at Partur.



11.   PW10 is the victim. Record shows that trial court has noted that

witness was deaf and dumb and therefore, with consent of defence,

female interpreter, namely, Mithila, who was working in Shruti Wani

Vikas Vidyalaya, was administered oath wherein she deposed that she

can understand language of deaf and dumb students by use of

gestures and she agreed to act as an interpreter for explaining the

signs and gestures of the witness. By extracting services of said special

teacher, evidence of victim was recorded in question-answer form.

While answering question no.5, she identified accused sitting in the

dock and while answering question no.7, she stated that he called her
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towards him, removed her pant and pulled her shirt, caught her hand,

removed his pant. Thereafter she ran away from the place. She

assaulted him and raised her voice and thereafter somebody came.

Thereafter, she came home.



      While under cross, she is unable to give day, date and year of

the incident, but incident occurred at 09.00 a.m. and on that day,

school was closed. That, she did not receive any injury. Rest is all

denial.



12.   PW11 is the Investigating officer.



13.   Above is the evidence on record. Here, PW2 had seen victim

being taken behind the school and he deposed about he further

informing to that extent to PW3 and PW5. He deposed that they saw

accused had removed his own clothes and had also removed clothes

of victim. Though PW3 and PW5 did not support, it has come in their

evidence that, victim was spotted crying in the school premises.



14.   Admittedly, victim is differently abled girl. She is deaf as well as

dumb and therefore unable to speak. However, she had made use of

gestures. Section 119 of Indian Evidence Act specifically deals with
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recording of evidence of witnesses who are unable to communicate

verbally, to record their evidence in any other manner in which he

can make it intelligible, as by writing, by signs. This section

specifically provides that if witness is unable to communicate verbally,

the court shall take assistance of interpreter or special educator in

recording the statement and such statement shall be videographed.



15.   It would be useful to refer to the judgment of the Hon’ble Apex

Court in the case of M. P. Sharma & others v. Satish Chandra, District

Magistrate, Delhi and others AIR 1954 SC 330 wherein it has been

held that, “a person can ‘be a witness’ not merely by giving oral

evidence, but also by producing documents or making intelligible

gestures as in the case of dumb witnesses”.



      Likewise, in the case of State of Rajasthan v. Darshan Singh @

Darshan Lal (Criminal Appeal No. 870 of 2007 decided on

21.05.2012), the Hon’ble Apex Court has observed in para 18 as

under :



      “1. The object of enacting the provisions of Section 119 of
      the Evidence Act reveals that deaf and dumb persons
      were earlier contemplated in law as idiots. However, such
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     a view has subsequently been changed for the reason that
     modern science revealed that persons affected with such
     calamities are generally found more intelligent, and to be
     susceptible to far higher culture than one was once
     supposed. When a deaf and dumb person is examined in
     the court, the court has to exercise due caution and take
     care to ascertain before he is examined that he possesses
     the requisite amount of intelligence and that he
     understands the nature of an oath. On being satisfied on
     this, the witness may be administered oath by appropriate
     means and that also be with the assistance of an
     interpreter. However, in case a person can read and
     write, it is most desirable to adopt that method being
     more satisfactory than any sign language. The law
     required that there must be a record of signs and not the
     interpretation of signs.”



     Similarly in para 20 and 21 the following observations are

made :



     “20. Language is much more than words. Like all other
     languages, commination by way of signs has some
     inherent limitations, since it may be difficult to
     comprehend what the user is attempting to convey. But a
     dumb person need not be prevented from being a credible
     and reliable witness merely due to his/her Physical
     disability. Such a person though unable to speak may
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      convey himself through writing if literate or through signs
      and gestures if he is unable to read and write.
            A case in point is the silent movies which were
      understood     widely     because   they   were     able    to
      communicate ideas to people through novel signs and
      gestures.    Emphasised     body    language      and   facial
      expression enabled the audience to comprehend the
      intended message.


      21. To sum up, a deaf and dumb person is a competent
      witness. If in the opinion of the Court, oath can be
      administered to him/her, it should be so done. Such a
      witness, if able to read and write, it is desirable to record
      his statement giving him questions in writing and seeking
      answers in writing. In case the witness is not able to read
      and write, his statement can be recorded in sign language
      with the aid of interpreter, if found necessary. In case the
      interpreter is provided, he should be a person of the same
      surrounding but should not have any interest in the case
      and he should be administered oath.” (emphasis laid)



16.   In the light of above settled position, here, it emerges that

learned trial court, in the best interest of the victim, permitted

evidence of victim to be recorded with the aid of the very teacher who

was teaching in a Special School and she was qualified, having taught

scores of deaf and dumb children, and by taking her help, evidence of

victim, who made gestures, seems to have been recorded.
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17.   Resultantly, here, in the light of Section 119 of the Evidence

Act, victim’s evidence is itself brought on record. There is no serious

challenge to the same in cross. From the evidence of PW2 as well as

the evidence of victim at Exhibit 57, it is clear that accused outraged

her modesty by taking her to the toilet and tearing her clothes. PW1

father and PW2 have both deposed about seeing victim in naked

condition and clothes in torn condition respectively. Therefore, their

evidence to this extent having remained intact, their testimony is

worthy of credence.



18.   Perused the judgment under challenge. The learned trial court

has correctly appreciated the evidence and applied settled procedure

while recording testimony of victim, a differently abled girl. Finding

prosecution story inspiring confidence to the extent of outraging

modesty, guilt for the same has been recorded. There being no

infirmity or perversity so as to interfere, this Court refrains from any

interference. Hence, the following order :

                                ORDER

              The Criminal Appeal is hereby dismissed.



                                             [ABHAY S. WAGHWASE, J.]

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