# Ram Deo Chamar v. State of U.P - **Citation:** (2016) 4 ILRA 1071 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-04-06 - **Bench:** Mrs. Ranjana Pandya - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-deo-chamar-v-state-of-u-p-43547 - **Pages:** 8 ## Headnote The appellant challenged the judgment and order dated 30.05.2011 passed by the Additional Sessions Judge, Maharajganj, in Sessions Trial No. 31 of 2008, arising from Case Crime No. 781 of 2007 under Sections 452, 376, 323, and 506 IPC. The trial court convicted the accused and sentenced him to varying terms of imprisonment along with fines. The facts reveal that the informant, Subhawati, alleged that the appellant raped her deaf and dumb sister, the victim, on 02.11.2007. Subhawati, upon witnessing the incident, raised alarm and attempted to catch the accused, who fled after assaulting her. Neighbouring witnesses were also called, and the police received a report from Subhawati on 06.11.2007. The investigation included recording witness statements, medical examination of the victim, preparation of site plans, and remand of the accused. The prosecution examined eight witnesses, including the informant, the victim, eyewitnesses, medical examiner, and police officers. The accused, in his statement under Section 313 Cr.P.C., denied all allegations, asserting a false implication. The trial court, upon hearing the parties, convicted the accused based on the evidence, particularly the victim's testimony interpreted via gestures and signs, without providing an interpreter. The appeal before this Court challenged the sufficiency and admissibility of evidence, arguing that the trial court erred in convicting the accused in a case lacking credible evidence. Procedure 1072 INDIAN LAW REPORTS ALLAHABAD SERIES The procedure began with the registration of the FIR at Nautanwan Police Station, followed by investigation under the supervision of P.W. 8, Radha Mohan Singh. Witnesses were examined, and the victim underwent medical examination. The site plan and case diary were prepared as part of the investigation. A chargesheet was filed in court (Ext. Ka-7). During the trial, prosecution witnesses testified regarding the incident, although several were declared hostile. Examination of the victim relied on gestures and signs interpreted by the trial court without the assistance of a formal interpreter. Defence cross-examined witnesses and presented arguments, while the accused denied all allegations under Section 313 Cr.P.C. The trial court convicted the accused based on the testimony of the victim and supporting witnesses. On appeal, this Court analyzed the trial evidence, including the credibility of eyewitnesses, admissibility of the victim's evidence, procedural delays, and relevant legal provisions regarding examination of deaf and dumb witnesses. The Court also reviewed case law governing FIR delays, credibility of witnesses, and evidentiary standards in rape cases, ultimately determining that the trial court had relied on inadmissible and unreliable evidence, and acquitted the appellant. Penal Sections Section 452 IPC - House-trespass Section 376 IPC - Rape Section 323 IPC ## Text 4 All. Ram Deo Chamar Vs State of U.P. 1071 45. Accordingly, the appeal is allowed. 46. The appellants-Mahendra and Ram Bharose are on bail. They need not surrender to the court below. The appellants Km. Lalita, Munna Kachhi alias Jairam, Madhur, Guddi Kachhi alias Ram Charan and Pappu alias Chaturbhuj are in jail. They shall be released forthwith, unless wanted in any other case. Their bail bond are cancelled and the sureties are discharged. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C. 47. Let a copy of this order be sent to the trial court concerned. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 06.04.2016 BEFORE THE HON'BLE MRS. RANJANA PANDYA, J. Criminal Appeal No.- 5389 Of 2011 Ram Deo Chamar ...Appellant Versus State of U.P. ...Opposite Party Counsel for the Appellant: Sri Pradeep Kumar VI Counsel for the Opposite Party: Learned A.G.A. for the State Proceedings The appellant challenged the judgment and order dated 30.05.2011 passed by the Additional Sessions Judge, Maharajganj, in Sessions Trial No. 31 of 2008, arising from Case Crime No. 781 of 2007 under Sections 452, 376, 323, and 506 IPC. The trial court convicted the accused and sentenced him to varying terms of imprisonment along with fines. The facts reveal that the informant, Subhawati, alleged that the appellant raped her deaf and dumb sister, the victim, on 02.11.2007. Subhawati, upon witnessing the incident, raised alarm and attempted to catch the accused, who fled after assaulting her. Neighbouring witnesses were also called, and the police received a report from Subhawati on 06.11.2007. The investigation included recording witness statements, medical examination of the victim, preparation of site plans, and remand of the accused. The prosecution examined eight witnesses, including the informant, the victim, eyewitnesses, medical examiner, and police officers. The accused, in his statement under Section 313 Cr.P.C., denied all allegations, asserting a false implication. The trial court, upon hearing the parties, convicted the accused based on the evidence, particularly the victim's testimony interpreted via gestures and signs, without providing an interpreter. The appeal before this Court challenged the sufficiency and admissibility of evidence, arguing that the trial court erred in convicting the accused in a case lacking credible evidence. Procedure 1072 INDIAN LAW REPORTS ALLAHABAD SERIES The procedure began with the registration of the FIR at Nautanwan Police Station, followed by investigation under the supervision of P.W. 8, Radha Mohan Singh. Witnesses were examined, and the victim underwent medical examination. The site plan and case diary were prepared as part of the investigation. A chargesheet was filed in court (Ext. Ka-7). During the trial, prosecution witnesses testified regarding the incident, although several were declared hostile. Examination of the victim relied on gestures and signs interpreted by the trial court without the assistance of a formal interpreter. Defence cross-examined witnesses and presented arguments, while the accused denied all allegations under Section 313 Cr.P.C. The trial court convicted the accused based on the testimony of the victim and supporting witnesses. On appeal, this Court analyzed the trial evidence, including the credibility of eyewitnesses, admissibility of the victim's evidence, procedural delays, and relevant legal provisions regarding examination of deaf and dumb witnesses. The Court also reviewed case law governing FIR delays, credibility of witnesses, and evidentiary standards in rape cases, ultimately determining that the trial court had relied on inadmissible and unreliable evidence, and acquitted the appellant. Penal Sections Section 452 IPC - House-trespass Section 376 IPC - Rape Section 323 IPC - Voluntarily causing hurt Section 506 IPC - Criminal intimidation Case Law State of Himachal Pradesh Vs. Prem Singh, AIR 2009 SC 1010 - Delay in lodging FIR may cast doubt on prosecution. Sri Narayan Shah & Another Vs. State of Tripura, 2005 SCC (Criminal) 410 - Delay excusable if explained in rape cases. State of Rajasthan Vs. Darshan Singh alias Darshan Lal, AIR 2012 SC 1973 - Proper procedure for examining deaf and dumb witnesses; record of signs required. Head Notes The appeal involves conviction of an accused in a rape case where the victim was deaf and dumb. The trial court relied primarily on gestures interpreted during examination-in-chief without an interpreter. Delay in lodging the FIR raised doubts on the credibility of prosecution. Eyewitnesses either did not corroborate the occurrence or were declared hostile. While law permits conviction based on the uncorroborated testimony of a victim, the testimony must be reliable, intelligible, and obtained through lawful procedure. Leading questions were improperly put to the victim during examination-in-chief. The Court emphasized that any examination of a deaf and dumb witness must ensure understanding of oath and intelligible communication, and interpretation must be recorded. Considering these procedural lapses, inadmissible evidence, and absence of credible eyewitness testimony, the conviction was set aside. Legal principles regarding delay in FIR, evidence of vulnerable witnesses, and reliability standards were cited to underscore the miscarriage of justice in the trial court. Facts Informant Subhawati is elder sister of the victim; victim is deaf and dumb. On 02.11.2007 at 10 A.M., the accused allegedly entered the victim's house and committed rape. Informant saw the incident and raised alarm; accused fled after assaulting her. Neighbour witnesses were present but did not corroborate the incident reliably. FIR lodged on 06.11.2007, four days after the incident. 4 All. Ram Deo Chamar Vs State of U.P. 1073 Investigation included recording witness statements, medical examination of victim, site plan, and police custody of accused. Eight prosecution witnesses were examined; some declared hostile. Accused denied allegations under Section 313 Cr.P.C. Contentions Appellant: Conviction based on no credible evidence. FIR delay weakens prosecution case. Victim's testimony inadmissible due to absence of interpreter and leading questions. Opposite Party (State): Evidence sufficient to convict; judgment well-reasoned. Victim's testimony reliable; corroborated by other witnesses. Analysis Delay of four days in lodging FIR raises suspicion, as no sufficient explanation for delay was provided. Eyewitnesses' testimony largely hostile or inconsistent; none effectively corroborated the occurrence. Victim, being deaf and dumb, examined without interpreter; trial court relied on gestures, violating procedural safeguards. Leading questions were asked in examination-in-chief, violating Sections 141 & 142 of Evidence Act. No medical evidence supported occurrence; doctor's report showed no injury. Accused's statement under Section 313 Cr.P.C. denied all charges; no defence witnesses were called. Supreme Court precedents emphasize reliable testimony, proper examination of disabled witnesses, and scrutiny of delayed FIRs. Trial court relied on inadmissible evidence; conviction cannot be sustained. Conclusion On considering the procedural irregularities, lack of credible corroboration, inadmissibility of evidence, and principles of law governing examination of deaf and dumb witnesses, this Court finds no merit in the prosecution case. The impugned judgment and order convicting the appellant is set aside. The appellant, Ram Deo Chamar, is acquitted of all charges and shall be released forthwith, with compliance to Section 437A Cr.P.C. Copies of this order are to be sent to the trial court. (Delivered by Hon'ble Mrs. Ranjana Pandya, J.) 1. Challenge in this appeal is to the judgment and order dated 30.5.2011 passed by Additional Sessions Judge, Maharajganj in Sessions Trial No. 31 of 2008 (State of U.P. Vs. Ram Deo Chamar) arising out of Case Crime No. 781 of 2007 under Sections 452, 376, 323, 506 IPC, Police StationNautanwan, District-Mahrajganj, whereby the accused was found guilty and sentenced to 3 years R.I. and fine of Rs.2000/- under section 452 I.P.C.; 10 years R.I. and fine of Rs.1000/- under section 376 I.P.C.; 6 months R.I. under section 323 IPC and 2 years R.I. under section 506 IPC and further six months imprisonment in case of default of payment of fine. 1074 INDIAN LAW REPORTS ALLAHABAD SERIES 2. The facts culled out from the record in a nut shell are that Subhawati wife of Lakshman Harijan is informant who had no issue. Hence, she married her real sister the victim to her husband so that he could have children. The victim was deaf and dumb both. The sisters used to live with their husband in one house. On 02.11.2007 at about 10.00 A.M., the victim was alone in house. Both her children were playing out side of the house and at that time Ram Deo taking the benefit of deaf and dumb of the victim entered into the house of informant and started committing rape on the victim. The informant came back from her shop which is situated near Mata Ka Mandir. As soon as she entered in the house, she saw the appellant raping her sister. 3. She raised alarm and caught the accused. On alarm being raised by informant, neighbour ladies Sonrahi, Bhagtin, Reenu daughter of Hari, Rambha daughter of Ram Samujh Yadav came at which Ram Deo assaulted the informant on her stomach with her leg and fled away. The accused came back to the door of the informant and said that if she would lodge the FIR, he will kill them. Seeking an opportunity, she came to the police station and lodged the report. Chick report was scribed by constable Markandey Upadhya, P.W. 7. He proved the chick report as Ka-4 and copy of G.D. as Ext. Ka-5. 4. Investigation of case was entrusted to P.W. 8, Sri Radha Mohan Singh, who recorded the statements of witnesses and send the victim for her medical examination. Site plan as Ext. Ka-6 was proved by the witness. The accused was taken in police custody remand. Supplementary report was copied in the case diary. Investigation ended into a charge sheet which was proved by this witness as Ext. Ka-7. 5. The prosecution examined as many as 8 witnesses. P.W. 1 is Subhawati, informant who is also sister of victim. P.W. 2 is the victim, P.W. 3 is Shambha, who is said to have seen the occurrence. P.W. 4 is Sonrahi, who is also said to have seen the occurrence. P.W. 5 is Reenu, who is also witness of fact. P.W. 6 is Dr. Aabha Gupta, who medically examined the victim. As per doctor's report neither external nor internal part of victim was found injured. Medical report was proved as Ext. Ka-2 and supplementary report as Ext. Ka-3. The statement of P.W.7, Markandey Upadhya and P.W. 8, Radha Mohan have been discussed by me earlier. 6. After conclusion of prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. in which he denied the occurrence. He has further stated that the informant has illicit relation with the father of son-in-law of brother of accused, Jhabbar. The accused used to resist the illicit. Hence he was falsely implicated. However, no defence witness was adduced. 7. After hearing learned counsel for the parties, learned trial court convicted the accused as stated in paragraph 1 of the judgment. 8. Feeling aggrieved, accused-appellant has come up in this appeal. 9. I have heard Sri Pradeep Kumar VI, learned counsel for the appellant, learned A.G.A. For the State and perused the record. 4 All. Ram Deo Chamar Vs State of U.P. 1075 10. The submission of learned counsel for the appellant is that the learned trial court has convicted the accused in no evidence case. 11. Per contra, learned A.G.A. has submitted that there was sufficient evidence to convict the accused and the judgment is well discussed and the appeal is liable to be set aside. 12. As far as occurrence is concerned, occurrence is said to have committed on 02.11.2007 at about 10.00 A.M. Report was lodged on 06.11.2007 at about 12.10 P.M. The distance of police station from the place of occurrence is 6 km. Thus, there is delay of about 4 days in lodging the F.I.R. No doubt, delay in lodging the prosecution case is always not fatal in a case of rape, but as far as delay in lodging the F.I.R. is concerned in the present case, it is not one in which informant has said that the reputation of the family was at stake due to which the informant was hesitant to lodge the F.I.R. In fact, she has stated that she did not go to lodge the FIR because Ram Deo had threatened her. This would not suffice because there is nothing on record to show that Ram Deo threatened. Even otherwise, it is not distinguishable that a man would rape a lady at 10.00 A.M. in her own house who is seen by many ladies and would return back to the house just to threaten the lady not to lodge the F.I.R. 13. In State of Himanchal Pradesh Vs. Prem Singh, A.I.R. 2009 (SC) page 1010, the Hon'ble Apex Court has considered the issue at length and observed as under: "This is trite law that Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for the reason that in case the substratum of the evidence given by the complainant/ informant is found to be unreliable, the prosecution case has to be rejected in its entirety. " 14. In 2005 SCC (Criminal) page 410 Sri Narayan Shah & another Vs. State of Tripura, the Hon'ble Apex Court has held that: "Mere delay in lodging the FIR is really of no consequence, if the reason is explained because in cases of rape generally the family remains reluctant to report the matter to the police to save shame and prestige of the family." 15. Thus, the delay in lodging the FIR in the present case creates a shadow of doubt on the prosecution case. This is a strange case in which the elder sister was married to a man. Since she has no issue, hence she used to her younger sister just to get children and married her helpless deaf and dumb sister to her own husband without divorcing him. This witness has stated that the incident of rape was witnessed by Reenu and other witnesses. 1076 INDIAN LAW REPORTS ALLAHABAD SERIES 16. Although in cases of rape sole testimony of witnesses of victim is enough to convict the accused if the evidence is reliable and trustworthy. It is well settled law that finding of guilt in the case of rape can be based on uncorroborated statement of the prosecutrix. The very nature of the offence makes it difficult to get the direct corroboration of offence. 17. Law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of any witness, the Court may classify the oral testimony in three categories namely (I) wholly reliable (ii) unreliable and (iii) neither wholly reliable nor un-wholly reliable. In the first two categories, there may be no difficulty regarding such matter, but the difficulty arise in third category of cases. The Court has to look for corroboration in material, particularly by reliable testimony or direct or circumstantial before acting upon the testimony of a single witness. The present case is not a case of sole evidence, but in this case there are many eye witnesses. In fact, P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 are witnesses of fact of rape. P.W. 1-Subhawati has stated that P.W. 3-Shambha, P.W. 4-Sonrahi and P.W.5- Reenu saw the incident. Shambha was examined before the Court as P.W. 3 who has stated that since Subhawati had no children, the victim and Subhawati were living with one and same house together. The victim is deaf and dumb but the victim never witnessed any occurrence of rape. She was declared hostile by the prosecution, who proceeded to cross-examine her, but even in her cross examination, there is nothing to help the prosecution. Same is the position with Sonrahi-P.W. 4, who has stated that neither she heard any alarm nor she saw Ram Deo raping the victim nor she saw the accused assaulting Subhawati. This witness was also declared hostile who proceeded to cross-examine her but this witness also did not come to the rescue of prosecution. 18. P.W. 5-Reenu has stated that the victim is deaf and dumb since birth. She has absolutely no knowledge about the incident. She did not go to the house of victim nor she saw the accused there. 19. Finally coming to the statement of victim, P.W. 2 who can be rated as the star witness of the prosecution case. Learned trial court in its wisdom took the aid of Section 118 & 119 of Indian Evidence Act,1872 which runs as follows: "118. Who may testify.-All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind." "119. Dumb witnesses.- 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 made in open Court. Evidence so given shall be deemed to be oral evidence." 20. 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 possess the requisite amount of 4 All. Ram Deo Chamar Vs State of U.P. 1077 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 interpreters. 21. In the case of State of Rajasthan Vs. Darshan Singh alias Darshan Lal, AIR 2012 SC 1973, it has been laid down that law requires that there must be a record of signs and not the interpretation of signs. In this case, the trial judge failed to appreciate the fact that he has not only to do justice with the victim, but he has to balance both the sides. 22. With regard to the question that were put to the victim leading questions could not be put to the witness as law does not permit to do so. Sections 141 and 142 of Indian Evidence Act are relevant which reads thus: "141. Leading questions.- Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. "142. When they must not be asked.- Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved." 23. There is no doubt that leading question can be put to a witness during course of crossexamination but in this particular case leading questions were asked during the course of examination-in-chief and the services of an interpreter were not taken. Coming to the statement of witness, who was put leading question, she had stated that the accused raped her. This has been done by signs and gestures by lifting her sari and by making certain gestures. A leading question was asked whether Subhawati has children at which she nodded her head in positive although Subhawati did not have children. In fact, the victim had two children. Further, when the witness was cross-examined she stated all the statements by signs. She also stated that neither Ram Deo entered in her house nor left her. This is a strange case in which a deaf and dumb lady was made instrumental to falsely implicate the accused and the learned court below loosing side of the provisions of law convicted the accused on absolutely inadmissible evidence and practically in a case of no evidence. 24. The accused in the statement under section 313 Cr.P.C. has denied the occurrence. Thus, the prosecution has miserably failed to establish a case against the accused. 25. On the basis of what has been stated and discussed above, I do not find any merit in the case set up by the prosecution. As such, judgment and order impugned in the appeal is set aside. The appellant is acquitted of all the charges framed against him. The appeal is hereby allowed. 1078 INDIAN LAW REPORTS ALLAHABAD SERIES 26. The appellant who is in jail shall be released forthwith in this case. Provision of Section 437A Cr.P.C. shall be complied with. 27. Let a copy of this order be sent to the court concerned. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 08.04.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE ATTAU RAHMAN MASOODI, J. Misc. Bench No.- 5776 Of 2016 Ram Lakhan ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Pankaj Gupta,Ram Narain Gupta Counsel for the Respondents: C.S.C. Noise Pollution - Use of loudspeakers in Temple for Aarti - Alleged oral prohibition by SubDivisional Magistrate - Fundamental rights under Articles 14, 19(1)(a), 25 and 26 - Subject to reasonable restrictions - Applicability of Noise Pollution (Regulation and Control) Rules, 2000 - Permission mandatory - No discrimination permissible - Law and order considerations - Writ disposed of with liberty to apply for permission. Religious practice and use of loudspeakers - Petitioner complained of oral direction by Sub-Divisional Magistrate restraining use of loudspeakers for devotional songs and Aarti in Ram Janki Temple - Allegation of discriminatory action vis-à-vis use of loudspeakers by mosque - Held, right to practise religion under Articles 25 and 26 is subject to public order, morality and health. Statutory framework - Noise Pollution (Regulation and Control) Rules, 2000 - Rules framed under Environment (Protection) Act, 1986 mandate prior written permission for use of loudspeakers - Prescribe decibel limits and prohibition during night hours except as provided - Compliance with statutory procedure under Rule 5 and Rule 8 obligatory. Fundamental Rights not absolute - No religion mandates performance of prayers through loudspeakers - Exercise of rights under Articles 19(1)(a), 25 and 26 must harmonise with rights of others under Article 21 - Citizens have right to peaceful environment free from noise pollution.. Law and Order consideration - Authorities competent to take preventive steps in emergent communal or law and order situations - However, prohibition cannot be imposed arbitrarily or selectively on one community. Equality before law - If permission is granted to one community, same standards under 2000 Rules must apply equally to all - No discrimination permissible.