# Charan Singh (In Jail) v. State of U.P

- **Citation:** (2022) 4 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-08
- **Case number:** Criminal Appeal No. 1171 of 2006
- **Bench:** Manoj Misra, Mrs. Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/charan-singh-in-jail-v-state-of-u-p-48258
- **Pages:** 17

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 318 - Trial of a deaf and
dumb person- No bar to proceed against a
deaf and dumb accused on a charge of a
criminal offence. But, whenever a criminal
proceeding is drawn against a deaf and
dumb person, the endeavour should be
that he understands the proceedings. If
the court finds that he understands the
proceedings, the trial must proceed in the
ordinary way. However, while doing so,
courts have to see to it that the trial is fair
and the accused gets a chance of putting
up such defences as he may have.

The only requirement before the court while
trying a deaf and dumb person is to ascertain as
to whether he understands the proceedings.

Evidence Law - Indian Evidence Act, 1872-
Illustration (e) to section 114 - Code of
Criminal Procedure, 1973- Section 318 -
There is a legal presumption that judicial
and official acts have been regularly
performed. In these circumstances once the
court had recorded its satisfaction with
regard to the ability of the accused to
understand and communicate, and there
being no application before that court
questioning its satisfaction or praying for
services of a sign language interpreter for
the accused, in our view, an unrebutted
legal presumption with regard to the
regularity of the judicial act would operate
against
the
accused-appellant.
Thus,
keeping in mind the legal presumption as
also the statement of PW-4 that the
appellant is in a position to understand and
communicate and is not of weak mind, we
are satisfied that the trial did not vitiate for
lack of appointment of a sign language
interpreter for the accused-appellant.

Where the court records its satisfaction that the
accused is able to understand the proceedings
against him and the said satisfaction remains
unchallenged then the trial cannot be held to be
vitiated.

Evidence Law - Indian Evidence Act, 1872
- Non-examination of children and other
family members of the deceased- Where
the accused is ones own family member,
witnesses of that family are reluctant to
give evidence. More over, children rarely
go against their parents. Therefore, their
non-examination, in the facts of the case,
is not fatal to the prosecution case.

Non- examination of the family members of the
accused will not be fatal for the prosecution as
54 INDIAN LAW REPORTS ALLAHABAD SERIES
the family members may be reluctant to depose
against the accused.

Criminal Law - Indian Penal Code, 1860 -
Section 302- Indian Evidence Act, 1872
Section 106 - Death of wife due to
strangulation- Appellant is that he is
admittedly the husband of the deceased
and there is no denial of the appellant
with regard to him residing with his wife
at the time and place of the incident. Most
importantly, the deceased died due to
strangulation - The appellant had escaped
from the spot and for several days he was
absconding.

The appellant, being the husband of the
deceased had failed to discharge the burden of
proof explaining the homicidal death of his wife
and had absconded after the commission of the
crime and therefore an adverse inference may
be drawn against him. ( Para 22, 23, 27, 28)

Criminal Appeal rejected. (E-3)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,972 of 59,015. This is a partial read: ask again with offset=39972 for what follows._

4 All. Charan Singh Vs. State of U.P.
53
assistance
to
the
Court. The
Court
quantifies Rs.15,000/- to be paid to Sri
Kunwar Ajay Singh, Advocate towards fee
for the able assistance provided by him in
hearing of this Criminal Appeal. The said
payment shall be made to Sri Kunwar Ajay
Singh Advocate by the Registry of the
Court within the shortest possible time.

89. The office is directed to send back
the lower court record along with a
certified copy of this judgment for
information and necessary action.

90. The compliance report be
submitted to this Court through the
Registrar General, High Court, Allahabad.
----------
(2022)04ILR A53
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE MRS. SAMEER JAIN, J.

Criminal Appeal No. 1171 of 2006

Charan Singh ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Umesh Shankar, Sri Subedar Mishra

Counsel for the Respondent:
A.G.A.

Criminal Law- Code of Criminal Procedure,
1973- Section 318 - Trial of a deaf and
dumb person- No bar to proceed against a
deaf and dumb accused on a charge of a
criminal offence. But, whenever a criminal
proceeding is drawn against a deaf and
dumb person, the endeavour should be
that he understands the proceedings. If
the court finds that he understands the
proceedings, the trial must proceed in the
ordinary way. However, while doing so,
courts have to see to it that the trial is fair
and the accused gets a chance of putting
up such defences as he may have.

The only requirement before the court while
trying a deaf and dumb person is to ascertain as
to whether he understands the proceedings.

Evidence Law - Indian Evidence Act, 1872-
Illustration (e) to section 114 - Code of
Criminal Procedure, 1973- Section 318 -
There is a legal presumption that judicial
and official acts have been regularly
performed. In these circumstances once the
court had recorded its satisfaction with
regard to the ability of the accused to
understand and communicate, and there
being no application before that court
questioning its satisfaction or praying for
services of a sign language interpreter for
the accused, in our view, an unrebutted
legal presumption with regard to the
regularity of the judicial act would operate
against
the
accused-appellant.
Thus,
keeping in mind the legal presumption as
also the statement of PW-4 that the
appellant is in a position to understand and
communicate and is not of weak mind, we
are satisfied that the trial did not vitiate for
lack of appointment of a sign language
interpreter for the accused-appellant.

Where the court records its satisfaction that the
accused is able to understand the proceedings
against him and the said satisfaction remains
unchallenged then the trial cannot be held to be
vitiated.

Evidence Law - Indian Evidence Act, 1872
- Non-examination of children and other
family members of the deceased- Where
the accused is ones own family member,
witnesses of that family are reluctant to
give evidence. More over, children rarely
go against their parents. Therefore, their
non-examination, in the facts of the case,
is not fatal to the prosecution case.

Non- examination of the family members of the
accused will not be fatal for the prosecution as
54 INDIAN LAW REPORTS ALLAHABAD SERIES
the family members may be reluctant to depose
against the accused.

Criminal Law - Indian Penal Code, 1860 -
Section 302- Indian Evidence Act, 1872
Section 106 - Death of wife due to
strangulation- Appellant is that he is
admittedly the husband of the deceased
and there is no denial of the appellant
with regard to him residing with his wife
at the time and place of the incident. Most
importantly, the deceased died due to
strangulation - The appellant had escaped
from the spot and for several days he was
absconding.

The appellant, being the husband of the
deceased had failed to discharge the burden of
proof explaining the homicidal death of his wife
and had absconded after the commission of the
crime and therefore an adverse inference may
be drawn against him. ( Para 22, 23, 27, 28)

Criminal Appeal rejected. (E-3)

Judgements/ Case law relied upon:-

1. Emperor Vs Deaf and Dumb, AIR 1917 Bom.
288

2. Emperor Vs Ulfat Singh, AIR 1947 Alld 301

3. St. Vs Radhamal Sangatmal Sindhi, AIR 1960
Bom. 526

4. In re: Padmanabhan Nair Narayan Nair, AIR
1957 Ker. 9

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal is against the judgment
and order of conviction and sentence dated
12.01.2006 passed by the Additional
Sessions Judge (Fast Track Court), Court
No. 1, Pilibhit in Sessions Trial No. 695 of
2004 whereby, the appellant has been
convicted under section 302 I.P.C. and
sentenced to imprisonment for life with
fine of Rs. 5,000/- and on default of
payment of fine, additional six months
imprisonment.

INTRODUCTORY FACTS

2. On a written report (Exb. Ka-1),
lodged by Surendra Singh (PW-1), the
brother of the deceased, on 28.06.2004, at
17:35 hours, a Chik FIR (Ex. Ka-4) was
prepared by PW-5, giving rise to Case
Crime No. 54 of 2004, under Section 302
I.P.C., at P.S. Hazara, District Pilibhit.
The prosecution case, in brief, is that
informant's elder sister Banso Bai (the
deceased) was married to the appellant
(Charan Singh) twelve years ago; she had
five daughters and a son; the appellant
used to suspect and taunt the deceased of
being unchaste and treated her with
cruelty; in the evening of 27.06.2004, the
deceased and the accused had a fight; in
the night of 27/28.06.2004, deceased's
neighbours Darshan Singh (PW-3) and
Parsa Singh (PW-4), at about 2.00 am,
heard noises; upon which, PW-3 and PW4 went to the spot to notice that the
appellant was strangulating the deceased;
that, by the time they could come to the
rescue of the victim, she was dead and
the appellant escaped. It was claimed that
after receipt of the above information
from PW-3, PW-1 (informant) went to the
house of the deceased to confirm the
news and, upon finding her sister dead,
the report has been lodged.

3. The inquest was conducted by
19:50 hours on 28.06.2004, which was
witnessed by PW-1 (Surendra Singhinformant); Jarnail Singh (not examined);
Satnam Singh (not examined); Puran Singh
(not examined) and Resham Singh (not
examined). The inquest report (Exb. Ka-2)
was prepared by PW-6.
4 All. Charan Singh Vs. State of U.P.
55

4. Autopsy of the body of the
deceased was conducted at about 4 pm on
29.06.2004. The autopsy report (Exb. Ka-3)
prepared by Dr. K.K. Sharma (PW-2)
notices as under:

External examination: Female
body of average build and muscularity;
face swollen, cynosed, eye-balls prominent
(sic) congested. Tongue swollen, bitten by
the teeth. Frothy blood coming out of
mouth and nostrils. Rigor mortis had
passed off from both upper limbs, passing
off
from
lower
limbs.
Signs
of
decomposition present. Foul smell coming
out of body. Abdomen distended.

Ante-mortem injuries:

(a) Contusion 6 cm x 4 cm on
upper part of neck, left side;

(b) Contusion 5 cm x 3 cm on
upper part of neck, right side.

On deeper dissections:,

Underlying
tissues
are
ecchymosed; larynx, trachea, bronchial
tubes are congested (sic) frothy blood and
mucous.

Internal Examination:

(i) Both lungs congested;

(ii) Stomach had 150 ml of
fluid; small intestine had fluid and gases;
and large intestine had faecal matter and
gases.

Cause of death -Asphyxia due to
throttling.

Estimated time of death: About
one and a half day before.

5. Charge-sheet (Exb. Ka-11) was
submitted on 18.08.2006 by S.O. Rajendra
Prasad (not examined) but it was proved by
PW-6. After taking cognisance on the
police report, on committal of the case to
the court of session, on 03.03.2005, charge
of the offence punishable under Section
302 I.P.C. was framed against the appellant,
which was denied and a trial was claimed.

PROSECUTION EVIDENCE

6. During the course of trial, the
prosecution examined as many as six
witnesses. PW-1 (Surendra Singh) the
informant; PW-2 - the Doctor who carried
out autopsy; PW-3 (Darshan Singh) and
PW-4 (Parsa Singh) - eye-witnesses; PW-5
(Virendra
Kumar
Srivastava)
is
the
constable clerk, who made G.D. Entry of
the FIR (Ex. Ka-5) and prepared the Chik
FIR (Ex. Ka-4); and PW-6 (Narendra Singh
Tiwatiya) - the first investigating officer
(I.O.) who carried out initial stages of the
investigation including preparation of the
site plan, inquest report, etc but was, later,
transferred and replaced by Rajendra
Prasad, who was not examined. PW-6,
however,
proved
the
charge-sheet
submitted by Rajendra Prasad.

7. At this stage, it would be
appropriate to notice the testimony of the
prosecution witnesses in some detail.

(i) PW-1 (Surendra Singh). He
stated that the deceased Banso Bai was
married to the accused-appellant 13 years
ago. Out of the wedlock, she had five
daughters and one son; that his brother-inlaw (the accused) used to level allegation of
unchastity on his sister and also used to
treat her cruelly. In respect of the incident,
PW-1stated that Darshan Singh (PW-3)
came and informed him that in the evening,
preceding the night of the incident, the
appellant and the deceased had a fight and,
at 2 am in the night, on hearing shrieks,
PW-3 and PW-4, who were neighbours of
the deceased, woke up and witnessed that
the accused was pressing the neck of the
deceased but, by the time they could save
56 INDIAN LAW REPORTS ALLAHABAD SERIES
her, the deceased had died and the accused
escaped. PW-1 stated that upon getting the
above information, he went to the house of
the deceased at village Tatarganj, found
body of the deceased lying on a cot;
thereafter, PW-1 dictated the report to
Jarnail Singh (not examined), who wrote
the report, read it over to PW-1, which,
PW-1 signed. On this statement, the written
report was marked Exb. Ka-1. PW-1 also
proved that at the time of inquest
proceeding, he was present and had signed
the report, which was exhibited as Exb. Ka2. {Note: At the time when the statement in
chief of PW-1 was recorded, the accused
was not represented by a lawyer and,
therefore, the court appointed an Amicus
Curiae to represent the accused and assist
him in cross-examining the witnesses. The
Court, accordingly, fixed 14.07.2015 for
cross-examination of PW-1. However, the
cross-examination of PW-1 was held on
28.07.2005}.

(i-a) In his cross-examination,
PW-1 stated that, initially, the relations were
good between the accused and the deceased;
that when he heard that the accused used to
level allegations of unchastity on the
deceased, he took no step, thinking that
bickering between husband and wife is
common. He admitted that his sister had not
told him that her husband was treating her
cruelly, perhaps, she used to hide all those
things. But, through her neighbours, he came
to know that she was being harassed by her
husband. In respect of the incident, he stated
that he came to know about the incident in
the morning, between 7.30 and 8.00 am,
through
PW-3
(Darshan
Singh).
This
information came to him while he was
staying with his elder sister at Bazaar Ghat.
When PW-1 got information from Darshan
Singh, he and his elder sister, namely, Surno
Bai went to the house of Banso Bai (the
deceased). He stated that it took them one and
a half hours to reach the house of the
deceased. He stated that deceased's children
are being looked after by their 'Tau' (father's
elder brother) and that PW-1 is not looking
after them. In respect of the incident, PW-1
stated that when he had reached her sister's
place in the morning, he did not see any
policemen there, though her neighbours were
there; after staying there for one and a half
hours, PW-1 went to the police station with
his other sister to lodge report. PW-1 stated
that he saw his sister's body lying on a cot.
He stated that near the hut of her deceased
sister, at a short distance, there were huts of
PW-3 and PW-4. The hut of the deceased and
her husband had three shades (Chhappar).
Two shades were joint and one was separate.
Under the two joint shades there was a
kitchen and a Baithak (a platform for sitting
purposes), partitioned by a Tatiya (straw
mat). Under the third shade, animals of the
accused used to be tied, which was at a
distance of five to six paces. In respect of
writing the report, PW-1 stated that he met
the scribe of the FIR, namely, Jarnail Singh,
at a Tea Stall, outside the police station. By
the time the report was scribed, it was 4:30 to
5 pm. He stated that he had gone to the police
station on a bicycle and it must have taken
two and a half to three hours to reach the
police station. He stated that when he
returned from the police station it was
evening and while he was returning on his
bicycle, he saw the police proceeding in a
Jeep to the village. By the time PW-1 arrived
at the village, the police had already reached
there. PW-1 stated that the police had
prepared documents in his presence; that he
and his sister had arrived from the police
station by about 7 pm; that the first
information report must have been lodged
between 4:30 pm to 5 pm.

(i-b) In respect of the condition of
his sister's body, PW-1 stated that when he
had noticed his sister's body, she was
4 All. Charan Singh Vs. State of U.P.
57
wearing a Kurti and Salwar and her eyes
were shut and her hands were on her chest.
He had not noticed any injury on her hands
though, there were old injury marks on her
leg. He stated that on exposed parts of her
body, he had not noticed any injury though,
blood was oozing out from her nose and
mouth. He also stated that she had glass
bangles. PW-1 stated that at the time of
inquest there were many persons; that the
body of his sister was taken for autopsy in
the night, between 1.30 am to 2 am. He
denied the suggestion that there was
animosity between the accused-appellant
and his neighbours Darshan Singh and
Parsha Singh in respect of some land
dispute. He also denied the suggestion that
the deceased and the accused-appellant had
good
relations.
He
also
denied
the
suggestion that he is telling a lie.

(ii) PW-2 (Dr. K.K. Sharma).
He proved the autopsy report and accepted
the possibility of death of the deceased to
have occurred at about 2 am on 28.06.2004.

(ii-a) In his cross-examination,
he admitted that the estimated time of death
can vary by nine hours and it is also
possible that the injuries found on the body
of the deceased could be on account of use
of hard and blunt object.

(iii) PW-3 (Darshan Singh) -
Eye witness. He stated that he knows the
accused-appellant as his hut is near the hut
of PW-3; that the accused-appellant is deaf
and dumb; that there used to be fights
between the accused-appellant and the
deceased as the accused-appellant used to
level allegations of unchastity on her; that
in the evening, preceding the night of the
incident, the accused and his wife (the
deceased) had a fight; that in the night of
the incident, while PW-3 was in his own
hut, at about 2 am, he heard noises coming
from the hut of the accused-appellant; on
hearing the noise, PW-3 and his brother
Parsa Singh (PW-4) went towards the hut
of the accused and saw the accused
strangulating his wife. Seeing PW-3 and
PW-4, the accused ran away but by the time
they reached there, the deceased had died.
PW-3 stated that he gave information about
the incident to the informant.

(iii-a) In his cross-examination,
PW-3 stated that the accused is his relative;
PW-1 is also his relative; his relationship
with the accused is through PW-1; the
accused has no agricultural holding though,
PW-3 has two acres of land; whereas, his
brother Parsa Singh (PW-4) has one and a
quarter acre of land; that the deceased, in
relation, is PW-3's 'Mausi' (mother's sister);
that deceased is a cousin of PW-3's uncle;
that the deceased had four daughters and a
son and the eldest, amongst the daughters,
is 11-12 years old whereas, youngest would
be 3-4 months old; that deceased and the
appellant had been fighting with each other
since last two to three months before the
incident;
that
PW-3
had
not
given
information about their fights to Surendra
Singh (PW-1); that Surendra Singh (PW-1)
had not visited the deceased in the last 2-3
months, though PW-1's father used to visit,
who is 60-70 years old; that in the night of
the incident, PW-1's father (Makhan Singh)
was not there as he was away; in PW-3's
village, there is no electricity; that PW-3's
hut is about 10 paces away from that of the
accused; that PW-3's brother Parsa Singh's
hut is towards east of his hut and the
distance between his hut and his brother's
hut is about 12 paces; that in the evening,
preceding the night of the incident, the
accused-appellant had not assaulted the
deceased with danda (stick) or slaps; that
accused-appellant can neither speak nor
listen; PW-2 denied the suggestion that
there use to be no fight between Charan
Singh (appellant) and Banso Bai (the
deceased).
58 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii-b)
On
further
crossexamination, PW-3 stated that Charan
Singh can communicate with the help of
signs, through his fingers, and can also
understand
what
others
wish
to
communicate. He admitted that earlier,
relationship between Charan Singh and
Banso Bai was cordial and that, out of their
relationship, they had six children.

(iii-c)
On
further
crossexamination, PW-3 stated that the night of the
incident was a dark night. When he heard
noises, he rushed to the spot from his own hut
and his brother also arrived there; that
deceased's children were there and were
crying; that Banso Bai's mother and father
were also sleeping there. PW-3 stated that
Charan Singh was pressing the neck of Banso
Bai and when PW-3 and PW-4 reached the
spot and were just about 5-6 paces away,
seeing them, accused-appellant ran away.
PW-3 stated that after Charan Singh ran
away, several others arrived at the spot; that
he went to inform the informant (PW-1) at
about 6 am on a cycle; that PW-3 reached
informant's house by 7 am and after giving
information to the informant, PW-3 returned
back. PW-3 stated that the police had arrived
by 12 (noon). PW-3 stated that he does not
remember as to what happened thereafter.
PW-3 also clarified that deceased's children
were young therefore, they could not save
their mother.

(iii-d)
PW-3
denied
the
suggestion that thief/dacoit/robber killed
Banso Bai in the night. PW-3 also denied
the suggestion that he has a dispute with
Charan Singh (the accused-appellant) and
therefore he is lying with a view to grab
Charan Singh's land. He also denied the
suggestion that because Surendra Singh
(informant) is his relative, therefore, he is
lying.

(iii-e) PW-3 told the Court that
when he went to the hut of Banso Bai, he
had a torch and in the light of the torch, he
had spotted Charan Singh strangulating the
victim. He also stated that he had screamed
at Charan Singh but, he did not respond.
Rather, he ran away. PW-3 stated that the
torch which he had, he has not brought. He
also could not remember whether he had
shown the torch to the I.O. He also stated
that the cot where the deceased was lying
was outside the shade. He denied the
suggestion that he is telling a lie.

(iv)
PW-4
(Parsha
Singh)-
another eye-witness. In his statement in
chief, he narrates the same story as narrated
by PW-3 (Darshan Singh) including that
the accused is deaf and dumb. He also
stated that the incident was witnessed in the
light of a torch.

(iv-a) In his cross-examination,
he stated that the informant, in relation, is
his 'Mama' (maternal uncle) and the
deceased is his 'Mausi' (maternal aunt). He
also stated that deceased had six children
and her son is about 10-11 years old. PW-4
stated that he had disclosed to the I.O. that
Banso Bai was of bad character but this
was not disclosed to Surendra Singh (PW1) and Banso Bai's mother and father. He
stated that at present Banso Bai's children
are being looked after by their grand
parents.

(iv-b)
On
further
crossexamination, he admitted that Charan
Singh (the accused-appellant) held about
two acres of land, which is being ploughed
by him. He also stated that, after marriage,
Charan Singh and Banso Bai had good
relations though, since two months before
her death, they used to have fights. PW-4,
however, admitted that he never informed
Surendra Singh (PW-1) or mother and
father of Banso Bai about their fights. PW4 stated that a day before the incident, the
appellant had assaulted Banso Bai with a
lathi though it had left no injury mark. PW-
4 All. Charan Singh Vs. State of U.P.
59
4 stated that he had not informed brother,
father and mother of Banso Bai about this
incident.

(iv-c) In respect of the incident,
he stated that that night was dark; that
night, Banso Bai had cried 2-3 times and on
hearing her cries, he and his brother (PW-3)
went to the spot. Charan Singh's children
had also raised alarm but, as they were very
young, they could not save their mother.
PW-4 stated that outside the shade
(Chhappar), there was just one cot where
Banso Bai was lying. Rest were sleeping
inside the shade. He stated that other cot
was at some distance from the cot of Banso
Bai. When questioned about distance of the
other cot, PW-4 stated that it must have
been 20-25 hands away. On further crossexamination, PW-3 stated that in that
separate cot Charan Singh's mother and
father were sleeping but they did not make
any attempt to save the deceased.

(iv-d)
On
further
crossexamination, PW-3 stated that when he had
reached the spot, he had seen Charan Singh
on top of the cot and pressing the neck of
Banso Bai. Banso Bai was screaming but in
low volume. When he and his brother (PW3) arrived, Charan Singh left and ran away.
PW-4 further stated, that when they
examined Banso Bai from close proximity,
she was found dead. He stated that he saw
the incident from a distance of 6-7 paces in
torch light.

(iv-e) To Court - PW-3 stated that
Charan Singh cannot speak clearly but can
speak little bit and can communicate by
hand gestures. PW-4 also stated that Charan
Singh cannot properly hear but has good
eye sight and is not insane or of weak
mind.

(iv-f)
On
further
crossexamination, PW-4 stated that he had
shown to the I.O. the place where the cot
was lying and from where he and his
brother (Darshan Singh) had challenged
Charan Singh and the direction in which he
ran away towards the jungle but, if this fact
was not mentioned by the Investigating
Officer, then he cannot tell the reason. PW4 stated that after the incident, he had
stayed overnight at the spot whereas the
police had arrived in the morning at 9 am
and had prepared documents and had also
got his thumb impression. He stated that
the police had not taken thumb impression
of Jarnail Singh or anybody else in his
presence. PW-4 stated that the police had
lifted the body by about night. He denied
the suggestion that he had not witnessed the
incident and he is telling a lie because of
being a relative of Surendra Singh (PW-1).

(v) PW-5 (Constable ClerkVirendra Kumar Srivastava). He proved
lodging of the first information report at
17:35 hours on 28.06.2004 of which GD
entry no. 20 (Exb. Ka-5) and Chik FIR
(Exb. Ka-4) was prepared by him.

(v-a) In his cross-examination, he
stated that he is not aware as to how and by
what conveyance the informant came to the
police station. He stated that Chief Judicial
Magistrate had seen the Chik FIR on
02.07.2004. He further stated that at the
time of lodging the first information report,
the Investigating Officer was there and
papers were handed over to him; and that
he left immediately. PW-5 stated that the
body had not come to the police station. He
denied the suggestion that first information
report was ante-timed under the influence
of the informant.

(vi)
PW-6
(S.I.
Narendra
Kumar Tivatia). He is the investigating
officer, who conducted investigation in the
matter up to 09.08.2004 whereafter, he was
transferred. PW-6 stated that after the FIR
was lodged, he took the informant with him
on official Jeep to village Tatarganj (the
village in which the crime was committed)
60 INDIAN LAW REPORTS ALLAHABAD SERIES
and, upon reaching the spot, at the behest
of the informant, he inspected the spot,
prepared site plan (Exb. Ka-6), conducted
and prepared inquest report (Exb. Ka-2) as
well as letter for the CMO and other
documents in respect of post-mortem etc.
and, thereafter, recorded statement of the
inquest witnesses and made an effort to
search out the accused. He stated that on
29.06.2004, he made an effort to arrest the
accused but could not find him in his
house. Thereafter, on 30.06.2004, he got
copy of the post-mortem report which was
incorporated
in
the
case
diary.
On
01.07.2004, he made efforts to arrest the
accused but the accused could not be
found. On the same day, he recorded
statement of witnesses Parsha Singh and
Darshan Singh. Again, on 02.07.2004;
04.07.2004; 07.07.2004; and 10.07.2004,
he made effort to arrest the accusedappellant Charan Singh but he could not be
found. Finally, on 11.07.2004, he submitted
an application in Court, stating Charan
Singh has absconded therefore, proceeding
under Section 82 and 83 Cr.P.C. be initiated
on
which,
on
14.07.2004
he
got
information from the Court that the
application
will
be
considered
on
17.07.2004. On 17.07.2004, he obtained
processes, under section 82 Cr.P.C. as also
non-bailable warrants. On 21.07.2004, he
searched for the accused and took steps
under Section 82 Cr.P.C. On 31.07.2004,
again, raid was conducted to arrest Charan
Singh but he could not be found. On
09.08.2004, he came to know that Charan
Singh had left Uttar Pradesh for Uttranchal
and is in district Udham Singh Nagar. PW6 stated that, thereafter, he was transferred
and the remaining investigation was
conducted by Rajendra Prasad. PW-6 stated
that Rajendra Prasad arrested Charan Singh
and after recording his statement, submitted
charge-sheet. PW-6 proved the writing and
signature of the second I.O. on the chargesheet, which was marked Exhibit Ka-11.

(vi-a) In his cross-examination,
PW-6 stated that he had not disclosed in the
site plan the route which Charan Singh took
to escape from the spot. He stated that
witnesses Darshan Singh and Parsha Singh
did not inform him the direction and the
route which the accused take to escape
from the spot. He, however, stated that huts
of the witnesses and the accused were at
close proximity to each other.

(vi-b) He denied the suggestion
that Surendra Singh (the informant) was
crossed by the police while he was on a
cycle, 5-6 kms away from the village.
PW-6 stated that when he had gone to
prepare the inquest report, deceased's
mother-in-law and children were there.
Children were young though, he could
not recollect their age. PW-6 stated that
he had enquired from the mother of the
accused but had not recorded her
statement. The children had no clue about
the incident as they were sleeping. He
stated that he had not questioned the
children at the time when he was
preparing the inquest report. He stated
that when he had visited the spot, he had
seen only one cot lying there where there
was dead body. He stated that the
witnesses had not shown any torch to
him. He denied the suggestion that he
reached the spot at noon. He also denied
the suggestion that he found the body of
Banso Bai in an open field. He stated that
the witness Parsha Singh had not
informed about the bad character of
Banso Bai though, Parsha Singh had told
him that Charan Singh, by gestures, did
communicate that his wife is not of good
character. On being shown paper no.
11/35, PW-6 stated that this was a letter
written by Station Officer Rajendra
Prasad to the Chief Medical Officer in
4 All. Charan Singh Vs. State of U.P.
61
respect of accused being deaf and dumb.
He stated that since he had been
transferred by then, he did not investigate
in that regard. PW-6 stated that from the
entry in the case diary, it appears, that the
investigating officer, namely, Rajendra
Prasad, had interrogated the accused with
the help of gestures though, he could not
find any report of the Chief Medical
Officer on the record. He denied the
suggestion
that
charge-sheet
was
submitted
by
conducting
a
bogus
investigation.

8. After the statement of the prosecution
witnesses were recorded, on 21.12.2005, the
statement of the accused was recorded under
Section 313 Cr.P.C. The order-sheet of the
court below reflects that the trial court on
21.12.2005 passed following order:-

"21-12-05

vkt izLrqr vfHk;qDr e; vf/koDrk
mifLFkrA vfHk;qDr lkQ ugh cksy ikrk fdUrq
ckrksa dks le> ysrk gS o rqrykdj o b'kkjs ls
viuh ckr dg ysrk gSA mlds fo}ku vf/koDrk o
ADGC ds le{k o muds lg;ksx ls c;ku 313
fy[kk x;kA

lQkbZ gsrq volj fn;k tkuk mfpr
gksxkA

U;k;fgr es fnukad 24-12-05 dks lQkbZ
lk{; gsrq is'k gksA"

9. The incriminating circumstances
appearing in the prosecution evidence were
put to the accused-appellant while recording
his statement under Section 313 Cr.P.C. and
at the bottom of that statement, following
note was put:-

"mDr i`PNk esjh mifLFkfr ,oa
Jo.kxkspjrk es dh x;h] ftlesa vfHk;qDr }kjk
fd;s x;sdFkuksa dh iw.kZ o lgh gky vUrfoZ"V gSA"

10. After 21.12.2005, on 24.12.2005, a
written explanation was also submitted on
behalf of the accused, duly thumb marked
by him and signed by his lawyer, which
reads as follows:-

"U;k;ky; Jheku~ ASJ/FTC I
egksn;] ihyhHkhr

 ST No. 695/04

 jkT; cuke pju~ flag

/kkjk 302 IPC

Fkkuk gtkjk

Jheku~ th]

fyf[kr dFku okLrs lQkbZ lk{;

1- ;g fd izkFkhZ pju flag dks mij;qDr
okn esa >wBk Qalk;k x;k gSA

2- ;g fd izkFkhZ dh HkSals o tehu d`f"k
Hkwfe gMi djus dh fu;r ls lk{kh n'kZu flag o lk{kh
ij'kk flag us izkFkhZ dh iRuh dks ekj dj >wBh dgkuh
cukdj izkFkhZ dks >wBk Qalk;k x;k gSA

3- ;g fd izkFkhZ u rks cksy ikrk gS vkSj u
gh dqN lqu ikrk gS ftl dkj.k viuh ckrdks iqfyl
ds lkeus dg ugh ldk vkSj lk{kh ij'kk flag o n'kZu
flag o vU; lk{kh >wBh xokgh ns jgs gSA vkSj lk{khx.k
ij'kk flag n'kZu flag us iqfyl ls fey dj >wBk
eqdnek dk;e djk fn;kA

4- ;g fd izkFkhZ fookg ds mijkUr viuh
iRuh ds lkFk izseiwoZd lgokl djrk jgk ftlds
QyLo#i izkFkhZ dh iRuh ds lUrkus mRiUu gqbZA izkFkhZ
dh iRuh ,d pfj=oku L=h FkhA

vr% Jheku~ th ls izkFkZuk gS fd izkFkhZ dk
fyf[kr dFku lkfey i=koyh djus dh d`ik dh
tkosA

fnukad

izkFkhZ

24-12-05

fu0 va0 pju flag

 pju flag

 g0 vi0

 }kjk jk----------- ,M0

,e0 bZ0 dl0 D;wjh"

11. The trial court, by the impugned
judgment and order dated 12.01.2006, held
that from the prosecution evidence it is
established that in the night of the incident,
the
appellant
killed
his
wife
by
strangulating her and that the appellant
being husband of the deceased, living with
her, has given no explanation as to in what
62 INDIAN LAW REPORTS ALLAHABAD SERIES
other manner the deceased was killed,
accordingly, the appellant is liable to be
convicted and sentenced, as above. While
writing its judgment, in paragraph no.16
and 17 of the judgment, the trial court dealt
with the plea of the appellant that, because
he was deaf and dumb, he could not put his
defence properly. In this context, the trial
court held that the accused was not
mentally weak and could communicate
verbally, in a stuttering manner, as well as
by gestures and, therefore, could defend
himself. While holding so, it relied on its
own observations, the record and the
statement of PW-4.

12. We have heard Sri Subedar
Mishra
for
the
appellant;
Sri
J.K.
Upadhyay, learned A.G.A., for the State;
and have perused the record.

SUBMISSIONS
OF
THE
APPELLANT

13. The submission of the learned
counsel for the appellant is that it was
proved on record that the appellant is a deaf
and dumb person as this position is
admitted to the prosecution witnesses of
fact, namely, PW-1, PW-3 and PW-4, and a
letter was also written by the Investigating
Officer to the Chief Medical Officer for
medical examination of the accused as he
was deaf and dumb. The said letter dated
17.08.2004 is there on record as Paper No.
11/35 and it was put to PW-6 during crossexamination wherein, he admitted that the
said letter was sent by the I.O. to the Chief
Medical Officer, Pilibhit. The letter dated
August 17, 2004 is being extracted below:-

"lsok esa]

Fkkuk>kjk & P.B.T.

eq[; fpfdRlkf/kdkjh

ihyhHkhr

fo"k;%& eq0 v0 la0 54@04 /kkjk 302
IPC cuke vfHk0 pju flag S/O xqy'ksj flag R/O
VkVjxat Fkkuk gtkjk P.B.T. ds xwaxs cgjs dh tkap
dj ifj.kke ls voxr djkus fo"k;dA

egksn;]

fuosnu gS fd Fkkuk LFkkuh; ij fnukad
28-06-04 dks vfHk0 pju flag S/O xqy'ksj flag R/O
VkVjxat Fkkuk gtkjk ft0 ihyhHkhr ds fo#) eq0 v0
la0 54@04 /kkjk 302 IPC dk vfHk;ksx iathd`r
gksdj foospuk izpfyr dh x;h nkSjkus foospuk vfHk0
pju flag mDr dk xwaxk] cgjk gksuk izdk'k esa vk;kA
vfHk0 pju flag vkt fxjQ~rkj fd;k x;k gS tks u
rks cksy ikrk gS vkSj u gh lqu ldrk gS ,slh n'kk esa
vfHk0 pju flag ds xwaxs@cgjs dh tkap@ijh{k.k gksuk
vfr vko';d gSA

vr% vuqjks/k gS fd vfHk0 pju flag
mijksDr dh xwaxs@cgjsiu dh tkap dj ifj.kke ls
voxr djkus dh d`ik djsaA

vk[;k lsok esa izsf"kr gSaA

fnukad vxLr 17- 04

g0 vi0

S.O.

17.8.04

PS gtkjk

Fkkuk/;{k

 gtkjk 1⁄4ihyhHkhr1⁄2"

14. By citing the above letter, the
learned counsel for the appellant submitted
that despite the said request and a clear-cut
statement made before the trial court that
the accused is deaf and dumb, no medical
examination of the accused was conducted
and no sign language interpreter was
provided to the accused either for getting
his statement recorded under Section 313
Cr.P.C. or to enable him to communicate
with his lawyer for setting up proper
defence, and to enable an effective crossexamination.
This,
therefore,
caused
serious prejudice to the appellant, thereby,
vitiating the trial. It has been submitted that
the whole case turns on the ocular evidence
of PW-3 and PW-4. Admittedly, the
children who had reached the age of
understanding were not produced. The eye-
4 All. Charan Singh Vs. State of U.P.
63
witnesses stated that the mother and father
of the accused were there, but they have not
been examined. Noticeably, the body of the
deceased carried no injuries except on her
neck which is suggestive of the fact that
she might have been strangulated with the
help of others, who might have held her
hand and legs so that she could offer no
resistance. He further submits that it is
quite possible that if the facility of a sign
language interpreter had been provided to
the accused, the accused might have
explained that on the night of the incident
he was not even there at the house and was
elsewhere.
Thus,
not
providing
an
interpreter to the accused has resulted in
serious miscarriage of justice.

15. It has further been submitted that
the entire prosecution story does not inspire
confidence as the prosecution case is that
the accused used to accuse the deceased of
bad character but, if the accused was deaf
and dumb, how would he be able to level
those allegations and, if he did level those
allegations, how would others come to
know of it. Further, the prosecution case
that the accused used to suspect and taunt
his wife is not substantiated; because, PW-3
and PW-4 have not informed the informant
or anybody else in respect of such
accusations. He submitted that at the spot
only one cot was noticed; if there was just
one cot there, where was the accused
sleeping because the other cot, according to
PW-4, was of father and mother of the
accused. This suggests that the accused was
not even there at home when the deceased
died. It has also been submitted that the
investigating officer, who arrested the
accused, has not been examined because he
could have disclosed as to from where and
in what circumstances the accused was
arrested. As, admittedly, the accused was
not given the benefit of sign language
interpreter, which ought to be available to a
deaf and dumb person to enable him to
render his explanation, the accused was
seriously prejudiced as he was not able to
disclose the circumstances in which he was
arrested and whether he was there at the
spot or elsewhere. Equally, at the time of
framing of charge, the accused did not have
a counsel to represent him because when
the witness PW-1 was tendered for crossexamination, the Court discovered that the
accused was unrepresented therefore, the
Court offered and provided him services of
an
Amicus
Curiae.
Under
the
circumstances, even the recording of
statement of the witnesses in accused's
presence was meaningless as how will he
understand as to what the witnesses were
saying. Similarly, if the benefit of a sign
language interpreter was not provided to
the accused at the time of recording his
statement under Section 313 Cr.P.C., how
would he be able to understand as to what
incriminating
circumstances
appeared
against him. It has been submitted that, it
appears, by guess work, the statement of
accused has been recorded under Section
313 Cr.P.C. This vitiates the entire trial.

16. On merits, it was argued that the
prosecution
story
does
not
inspire
confidence inasmuch as, admittedly, the
village had no electricity, the witnesses are
stated to have seen the incident in the light
of a torch which was never produced before
the Investigating Officer and was never part
of the record. Further, the site plan did not
disclose the route taken by the accused to
escape from the scene. Meaning thereby
that the eye-witnesses had not seen the
incident and, therefore, it is a case, where,
with ill motive, to grab the land of the
appellant he has been implicated, which is
borne out from the statement of PW-4,
where he admits that PW-4 is ploughing the
64 INDIAN LAW REPORTS ALLAHABAD SERIES
field of the appellant. Thus, in a nutshell,
the submissions of the appellant could be
summarised as follows:-

(a) The FIR is highly delayed; the
prosecution has suppressed evidence by not
examining vital witnesses, namely, mother
and father of the accused-appellant as well
as her children, who were all sleeping at the
place where the deceased was killed. More
so, when, according to own case of PW-3
and PW-4, the children were there and
crying. Even according to I.O. (PW-6), the
children were sleeping there. Yet, their
statement was not recorded which means
that the investigating agency did not try to
verify the allegations;

(b) The ocular evidence does not
inspire confidence inasmuch as, admittedly,
the incident occurred on a dark night, the
body of the deceased showed no marks of
resistance, suggesting that she was caught
hold by someone and some other person
strangulated her. This circumstance renders
the ocular account untrustworthy;

(c)
That
the
appellant
was
deprived of the right of defence as he was
not provided services of a sign language
interpreter despite the fact that he was deaf
and dumb and, that too, to the knowledge
of the Court yet, despite application and
information to the Court that he was deaf
and dumb, the Court did not direct for his
medical examination to ascertain whether
he was in a position to understand and
communicate; and

(d) That the endorsement at the
bottom of the statement recorded under
Section 313 Cr.P.C. that it was recorded
with the help of gestures after being
satisfied as to what the accused wanted to
communicate, is contrary to the order
recorded on the order-sheet that the accused
could communicate in low tones and that
his statement was recorded with the help of
his counsel and the ADGC. All of this
would suggest that there was no serious
effort to understand the disability of the
accused and to record his statement.

SUBMISSIONS
ON
BEHALF OF THE STATE

17.