Competence and credibility of deaf and dumb witness not affected by limited vocabulary of sign language

Delhi High Court: Disposing of an appeal where the appellant was convicted for the offence under Section 9(k) of the Protection of Childen from Sexual Offences Act, 2012 for aggravated sexual assault of a deaf and dumb minor, and awarded rigorous imprisonment for six years with fine of Rs 5000, the Bench of Mukta Gupta, J. held that though charged with a major offence an accused can be convicted for a minor offence, however, the vice-versa is impermissible.
Though the appellant was charged under Section 7 of the POCSO Act for sexual assault punishable under Section 8 wherein the minimum punishment is 3 years extending to 5 years with fine, he was convicted under Section 9(k) for aggravated sexual assault. The appellant had contented that since the prosecutrix, who was deaf and dumb, could not be cross-examined, her testimony cannot be read in evidence and even if the offence is proved against the appellant, the same would fall under Section 7 punishable under Section 8 and not under Section 9(k) punishable under Section 10 of the POCSO Act.
Relying upon State of Rajasthan v. Darshan Singh, (2012) 5 SCC 789 that Section 119 of the Evidence Act provides that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, the Court observed that the prosecutrix had explained the incident through her drawings and through gestures to her mother for the purpose of cross-examination. The Court observed that the purpose of cross-examination is to ascertain the truth in relation to the accusation levelled against an acused and discretion vests in the court to control the cross-examination. A party cross-examining a deaf and dumb witness like any other witness is required to act within the bounds of law and cannot be permitted to cross-examine the witness all and sundry on irrelevant questions. It is the duty of a Judge to control the cross-examination to prevent any abuse and to protect a witness from being unfairly dealt with. Sections 149 to 152 of the Evidence Act prohibited questions without reasonable grounds and Section 138 provides that cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief.
The Court observed that “When a deaf and dumb witness is under cross-examination, the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not affect either the competence or the credibility of such witness. The Court is required to exercise control over the cross-examination keeping in view the ability of the witness to answer the questions.”
As for the nature of the offence, the Court observed that in the facts of the case it is not required to go into whether aggravated sexual assault is made out or not from the evidence on record, for the reason there was no charge for aggravated sexual assault framed against the appellant. It is trite law that though charged with a major offence an accused can be convicted for a minor offence, however the vice-versa is impermissible, which has been done by the trial court. Observing that the conduct of the appellant in sexually assaulting a deaf and dumb girl who was not in a position to protect herself fully warranted maximum punishment, the conviction was altered to one for the offence under Section 7 and punishable under Section 8 and the order on sentence was modified to rigorous imprisonment for 5 years with fine of Rs 10,000. [Chander Singh v. State, 2016 SCC OnLine Del 3574, decided on 03.06.2016]