1 Judgment Reserved on : 03/04/2025 Judgment Delivered on : 21/04/2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 243 of 2003 1 - Ram Kumar S/o Beni Ram, aged about 24 years, occupation – Panthela R/o. Bus Stand Para, Bijapur, P.S.Bijapur, Distt. -Dantewada (CG) ... Appellant(s) versus 1 - State Of Chhattisgarh Through P.S.Bijapur, Distt. Dantewada (CG) ... Respondent(s) For Petitioner(s) : Ms. Manisha Yadav, Advocate For Respondent(s) : Ms. M. Asha, Panel Lawyer ({Hon’ble Shri Justice Sachin Singh Rajput}) CAV Judgment This appeal under Section 374(2) of the Criminal Procedure Code, 1973 (for short ‘CrPC’) has been filed by the appellant aggrieved by the impugned judgment of conviction and order of sentence dated 26/11/2002 passed by the Special Judge (S.C.S.T Act) Bastar at Jagdalpur (CG) in Sessions Case No.43/2001. By the judgment impugned, the appellant has been convicted and sentenced in the following manner - Conviction Sentence 1 U/s 366 of IPC R.I. for 5 years and fine of Rs.700/-. (In default of payment of fine, further R.I. for 1 year) 2 U/s 376 (2) (G) of IPC Ten years R.I. & fine of Rs.3000/- (in default of 2 payment of fine, two years additional R.I.) 3 U/s 506 Part II of IPC Two years R.I. and fine of Rs.500/- (in default of payment of fine, three months additional R.I.) 4 U/s 323 of IPC Six months R.I. and fine of Rs.300/- (in default of payment of fine, one month additional R.I.) 2. Case of the prosecution in brief is that the prosecutrix (PW2) is a differently abled girl and is deaf and dumb by birth. She lives with her mother and is a minor. On 14/04/1997 at 8 PM, her mother Shanti Bai (PW1) looked for her daughter (prosecutrix) and she was not found in the house. She enquired about her in the nearby vicinity but she could not be found. On the next day, when she came from her work, her another daughter told her that the prosecutrix had come and showed signal by hands towards the appellant and one Rafiq Khan (absconding accused) that they committed rape on her. Thereafter, she started looking for the prosecutrix and she was found in the bus stand, Bijapur in front of one shop who ran away after seeing her and could not be found. It is also the case of the prosecution that the appellant - Ramkumar and absconding accused - Rafiq Khan committed forcible sexual intercourse one by one with the prosecutrix near water tank at bus stand, Bijapur and threatened her of dire consequences. The report was lodged by her mother Shanti Bai (PW1) in the police station–Bijapur upon which FIR (Ex.P/11) under crime No.23/97 was registered and the prosecutrix was sent for medical examination. X-Ray for ascertaining the age of the prosecutrix was conducted and she was found to be more than 14 years and less than 17 years of age. On her medical examination, scratch mark on her right chest and scratch mark on the internal side of her leg were found by Dr. Smt. V.P.Tirki (PW7) who gave a report in Ex.P/9. Identification parade of the appellant was conducted. Undergarment of the prosecutrix was seized vide Ex.P/2 and undergarment of the appellant - Ramkumar was seized vide Ex.P/3. They were sent for medical examination. Slide of private part of the prosecutrix was seized vide Ex.P/4. The seized articles were sent for chemical analysis to Forensic Science Laboratory (FSL). The FSL report (Ex.P/15) was received in which human sperms were found in the undergarment and slide of the prosecutrix as also on 3 the slide of the appellant Ramkumar. Statement of the witnesses were recorded. 3. After due investigation, charge sheet was filed before Special Judge, Jagdalpur against the present appellant, the accused–Rafiq Khan was shown absconding in the charge sheet and it was registered as Special Case No.60/97. Thereafter, vide order of this Court dated 04/09/2000 in MCrC No.1521/2000, the charge sheet was directed to be filed before the Judicial Magistrate and thereafter, charge sheet was filed before the Chief Judicial Magistrate, Dantewada where it was registered as Criminal Appeal No.33/2001. Vide its committal order dated 12/01/2001, the case was committed to the Sessions Court which was made over to the trial Court for trial. Initially, charge under Section 363, 366, 376, 506B and 323 IPC were framed against the present appellant. Thereafter, vide order dated 10/10/2002, the charge was amended to Section 363, 366, 376 (2) (G), 506 Part II and Section 323 of IPC. The appellant denied the charges and claimed to be tried. 4. The prosecution, in order to prove its case, examined as many as 9 witnesses and exhibited 15 documents. Learned trial Court on the basis of evidence available on record convicted and sentenced the appellant as stated above. 5. Learned counsel for the appellant submits that the conviction of the appellant is bad in law. The learned trial Court has not appreciated the evidence to its proper perspective. She submits that the medical report does not support the case of the prosecution as Dr. Smt. V.P.Tirki (PW7) has deposed that no definite opinion regarding sexual intercourse can be given. She further submits that the incident is said to have occurred on 14/15.04.1997 and the report was lodged on 19/04/1997 with a delay of 4-5 days which makes the prosecution case suspicious. She further submits that the delay has not been properly explained by the prosecutrix. She further submits that the statement of the prosecutrix is not credible enough to term her in any category of sterling witness, therefore conviction of the present appellant on such evidence cannot sustain the scrutiny of this Court. She further submits that there are contradictions and omissions in the statement of the prosecution witnesses and 4 the story put forth in the FIR is different from the statement of the prosecutrix. She placed reliance on the judgment of Hon’ble Supreme Court in the case of Krishan Kumar Mallik v. State of Haryana, AIR 2011 SC 2877, State of Rajasthan Vs. Darshan Singh @ Darshan Lal reported in AIR 2012 SC 1973, a judgment of Hon’ble Bombay High Court passed in case of Hanumant Vs. The State of Maharashtra (Criminal Appeal No. 493 of 2019) dated 26 June 2019. Therefore, she submits that as no definite opinion with regard to sexual intercourse is given by Dr. Smt. V.P.Tirkey (PW7), the appeal may be allowed and the appellant may be acquitted from all the charges. 6. Per contra, learned State counsel submits that the prosecutrix is a differently abled deaf and dumb girl. She submits that she was forcibly taken by the appellant and the absconded accused Rafiq Khan and committed rape on her one by one which is evident from her statement. The prosecutrix was found after two days of the incident and thereafter, FIR was lodged by her mother which cannot be said to be delayed. She submits that the prosecutrix in her statement before the Court categorically deposed against the appellant and her statement is credible, impeccable and is of sterling quality. She submits that even if the doctor has not given any definite opinion with regard to sexual intercourse, that would not ipso facto lead to an irresistible conclusion that the prosecutrix was not subjected to sexual intercourse. She submits that the conviction can sustain only on the solitary statement of the prosecutrix. In the case in hand, as the prosecutrix was a differently abled deaf and dumb girl and she was found to be aged about 14 to 17 years as per ossification test conducted by the doctor, her statement was taken with the aid of the expert under Section 119 of the Evidence Act and the trial Court has rightly relied upon the statement of the prosecutrix. Since it is a case of Section 376 (2) (G) of IPC, there cannot be any consent on the part of the prosecutrix. Therefore, he submits that the findings recorded by the learned trial Court on the basis of evidence brought before it cannot be found fault with and the appeal deserves to be dismissed. 7. Heard learned counsel for the parties and perused the records. 5 8. It is well settled proposition of law that if the statement of the prosecutrix inspires confidence, conviction can be sustained on the basis of sole testimony of the prosecutrix. This legal position is no longer res integra in view of the decisions of the Supreme Court in the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34, State (NCT of Delhi) v. Pankaj Chaudhary and ors., (2019) 11 SCC 575 and Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74. 9. Hon’ble Supreme Court, in the case of Sham Singh (Supra), in paragraphs 6 and 7, held as under: “6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignifcant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).] 7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and 6 the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635).” (Emphasis Supplied) 10. In the case of Pankaj Chaudhary (Supra), it is observed and held in paragraph 29 as under: “29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K., (2000) 5 SCC 30].” (Emphasis Supplied) 11. In a recent decision of the Hon’ble Supreme Court in Phool Singh (Supra), considering various case laws on the point that conviction can rest on the sole testimony of prosecutrix if it inspires confidence held in paragraph 11 as under:- “11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy.Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony 7 of the prosecutrix can be sustained.” (Emphasis Supplied) 12. In the light of above principle of law laid down by Hon’ble Supreme Court, it is well settled preposition of law that the accused can be convicted only on the basis of the sole testimony of the prosecutrix if it is found credible and inspires confidence without any further corroboration. The testimony of the prosecutrix (PW-1) requires examination with great caution. This court has to see that the testimony of prosecutrix inspires confidence, is of high quality and caliber, on the face value acceptable, cannot create a doubt and is unassailable looking from any angle. The statement should pass the test of “sterling witness”. 13. In the case in hand, the prosecutrix was examined as PW2. She is a deaf and dumb girl. Therefore, the her statement has to be examined carefully as per provisions contained in Section 119 of the Indian Evidence Act 1872, which envisages that “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:” By amendment Act of 2013 w.e.f 3.2.2013 a proviso clause was added as “Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be video graphed.” 14. In case of Darshan Singh @ Darshan Lal (Supra) Hon’ble Supreme Court observed that a deaf and dumb person is a competent witness and held as under:- “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 8 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.” 15. The statement of prosecutrix (PW-2) was recorded with the aid and assistance of Shri Shailendra Mishra a teacher of blind, deaf and dumb school, Dharampura (Jagdalpur). He and prosecutrix were administered oath by the learned trial Court. Prosecutrix (PW-2) deposed that she knows the appellant. There were two boys. When she woke up at 7:30, appellant present in Court and another accused called her, held her hands, breast and tied her mouth. Appellant held her waist and torn her blouse and tied her hands from behind. Removed her cloths and committed sexual intercourse with her. She told the incident to her mother by signs. She further deposed that the accused persons wre keeping liqueur bottle and were intoxicated. She was sent to hospital for medical examination. In cross examination she stated that she is unmarried. No one has committed sexual intercourse with her before the incident. She was subjected to sexual intercourse by lying her on the floor. There was crushed stone. She further deposed that she was sleeping in the house. She by indication told that after she woke up, she was called by the appellant. She was subjected to sexual intercourse by the accused person by taking her near her house. She stated that her mouth was tied. Incident occurred in the evening at about 7:30 pm. Firstly Ramkumar (present appellate) thereafter Rafiq (absconded accused) committed the sexual intercourse. She suffered injury on her leg and was taken to hospital for treatment. She denied that the suggestion of false report non happening of incident. Her statement is explicit with regard to commission of intercourse by the appellant. 16. The statement of prosecutrix (PW2) finds corroboration by the statement of her mother (PW1). She has vividly stated that her daughter is deaf and dumb by birth, she understands her sign language and she has narrated the incident by showing signals, upon which, she lodged report in the police station – Bijapur. 17. Sub-Inspector S.K.Singh (PW8) has deposed that on a report lodged by mother of prosecutrix (PW1), he registered FIR (Ex.P/11) under crime 9 No.23/97. Vijay Kumar (PW4) has deposed in his statement that the prosecutrix narrated the incident showing signals to her mother that she was subjected to rape, she was burnt and her clothes were torn by the present appellant and Rafiq Khan, then he went along both of them to lodge report. In his cross-examination, he has stated that though he did not understand what the prosecutrix was telling to her mother but he understood after her mother narrated the incident to him. M.P.Tilak (PW3) has deposed that four years ago, he conducted identification parade in the Middle School, Bijapur where the prosecutrix had identified the present appellant. It is quite evident from the aforesaid statement that the appellant was known to the prosecutrix. 18. Of course, Dr. V.P. Tirki (PW8) has not given any definite opinion with regard to recent sexual intercourse with the prosecutrix but the incident had occurred on 14/15.04.1997 and she was found after two days of the incident and as per statement of the prosecutrix, the present appellant and one Rafiq Khan gagged her mouth and committed rape on her. Therefore, there is no possibility of false implication particularly looking to the fact that the prosecutrix is a differently abled deaf and dumb girl. She was subjected to medical examination and also supported seizure of her under garments. FSL report (Ex.P/15) also indicates that on the under garments and slide of the prosecutrix, as also on the slide of the present appellant, semen and human spermatozoa were found which also corroborates the statement of the prosecutrix. As far as delay in lodging FIR is concerned, the mother of the prosecutrix has deposed in her statement that the prosecutrix was found after two days of the incident and when she narrated the story by sign language, the report was lodged. It is settled position of law that delay in lodging FIR is always not fatal if delay is explained properly. In the opinion of this Court, prosecution case cannot be discarded only on the ground of delay of FIR when the prosecutrix is a deaf and dumb girl. As the prosecutrix was found to be more than 14 years and less than 17 years of age as per ossification test, this Court has no occasion to disbelieve the statement with regard to age. 19. The case law cited by learned counsel for the appellant in the given facts circumstances of the case do not help the appellant. In case of Darshan Singh @ 10 Darshan Lal (Supra) the statement of deaf and dumb witnesses was disbelieved as it was recorded with the aid of father who was interested in the investigation and that too without administering oath. In the case the statement of the prosecutrix (PW2) was recorded with aid and assistance of a teacher of blind, deaf and dumb school who has no interest in the case after administering oath to them. Hence, no benefit can be given to the appellant. The other case laws cited by the learned counsel for the appellant with due respect are not applicable in given the facts and circumstances of the present case being distinguishable on facts. In case of Hanumant (Supra) the Hon’ble Bombay High Court held that the provision of section 119 as amended was not followed 20. Learned trial Court relying upon these evidence, found the appellant guilty and the finding recorded by the learned trial Court does not appear to be perverse. The statement of prosecutrix appears to be credible, impeccable and she can be termed as “sterling witness”. Therefore, the appeal filed by the appellant is hereby dismissed. The appellant is reported to be on bail. His bail bonds stand canceled. He is directed to surrender before the concerned trial Court for serving the remaining sentence. Copy of this judgment and records be sent back to trial Court for information and necessary compliance. Sd/- (Sachin Singh Rajput) JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.04.22 15:10:46 +0530