1 (CRA No. 1290 of 2023) 2025:CGHC:21346 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1290 of 2023 {Arising out of judgment dated 09.06.2023 passed in Sessions Case No.163/2021 by the learned Special Judge (Atrocity) Additional Charge – Additional Sessions Judge (FTC), Bilaspur (C.G.)} 1 - Vikas Tiwari @Pappu S/o Santosh Aged About 34 Years R/o Pathakpara, Takhatpur, Police Station Takhatpur, District - Bilaspur (Chhattisgarh) --- Appellant(s) versus 1 - State Of Chhattisgarh Through Police Station - Takhatpur, District Bilaspur (Chhattisgarh) --- Respondent(s) (Cause-title taken from the Case Information System) ------------------------------------------------------------------------------- For Appellant :- Ms. Pooja Loniya, Advocate For State :- Mr. Rahul Tamaskar, Govt. Advocate ------------------------------------------------------------------------------------- SB- Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 08.05.2025 1. Invoking the criminal appellate jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has called in question the legality, validity and correctness of judgment of conviction and order of sentence dated 09.06.2023 (Annexure A/1) passed by learned Special Judge (Atrocity) Additional Charge – Additional Sessions ADITI DIWAN KAIWART Digitally signed by ADITI DIWAN KAIWART Date: 2025.05.12 16:16:18 +0530 2 (CRA No. 1290 of 2023) Judge (FTC), Bilaspur, District Bilaspur, Chhattisgarh in Sessions Case No.163/2021, whereby the learned trial Court while acquitting the other co-accused person namely, Madhu Shrivas, has convicted the appellant herein for offence under Section 376(2)(l) of the IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of 2,000/- and in default of payment of fine, ₹ sentenced to undergo additional rigorous imprisonment for 02 months. 2. The case of the prosecution, in short, is that on 11.03.2020 at around 05:30 PM, in the victim’s house at Pathakpara, Takhatpur, which comes within the ambit of Police Station Takhatpur, District Bilaspur, the appellant herein committed sexual intercourse with the major victim (PW- 06), who was suffering from moderate intellectual disability to the extent of 75% and, thereby, said to have committed the aforesaid offence. 3. It is the further case of the prosecution that the aunt of the victim (PW-01), reported the matter to the police on 12.03.2020 vide Ex.P/1, pursuant to which, the police registered FIR vide Ex.P/2. Crime details form was prepared vide Ex.P/3 and Nazari Naksha was prepared vide Ex.P/7. Clothes and slides of the victim were seized 3 (CRA No. 1290 of 2023) vide Ex.P/8. MLC of the victim was conducted by Dr. Bandana Choudhary (PW-09) and as per MLC Report (Ex.P/5), the hymen was old and ruptured and no definite opinion with regard to recent sexual intercourse could be given. Disability certificate (Ex.P/11) proving that the victim is suffering from moderate intellectual disability to the extent of 75% was issued by Dr. Satish Kumar Shrivastava (PW-07). The victim was also medically examined by Dr. Neeraj Shukla, Clinical Psychologist (not examined) vide Ex.P/9 proved by Dr. Satish Kumar Shrivastava (PW-07) and it was found that the cognitive function of the victim is poor and she is able to understand very simple questions and is unable to comprehend complex things. Thereafter, statements of the witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence. 4. The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 20 documents, whereas, the appellant in support of his defence has 4 (CRA No. 1290 of 2023) examined 01 witness and exhibited 01 document. Statement of the appellant was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which the present appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 6. Ms. Pooja Loniya, learned counsel for the appellant would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt and as such, the trial Court has erred in convicting the appellant for the aforesaid offence. She would further submit that though the intellectual disability of the victim has been established by the evidence of the medical expert (PW-07) but the learned trial Court has failed to record its satisfaction regarding competency of the victim to testify as a witness. Furthermore, the victim has been examined by taking the assistance of the complainant (PW-01) as interpreter for 5 (CRA No. 1290 of 2023) recording of the evidence, making it completely unsafe to hold the appellant guilty of grievous offence of rape of the victim who is suffering from moderate intellectual disability to the extent of 75%. Therefore, the appeal deserves to be allowed by setting aside the impugned judgment of conviction and order of sentence. 7. On the other hand, Mr. Rahul Tamaskar, learned State counsel would support the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature and the appellant has rightly been convicted for the said offence. As such, the present appeal deserves to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. As per the case of the prosecution, the date and time of the offence is 11.03.2020 at around 05:30 PM and the written report (Ex.P/1) was filed on 12.03.2020 and immediately thereafter, the FIR (Ex.P/2) was lodged on the same day. On 12.03.2020, the victim (PW-06) was firstly examined by Dr. Bandana Choudhary (PW-09) vide Ex.P/5, who found 6 (CRA No. 1290 of 2023) that hymen was old and ruptured and no definite opinion with regard to recent sexual intercourse could be given. Thereafter, on 18.03.2020, the Disability Certificate (Ex.P/11) of the victim proving that she is suffering from moderate intellectual disability to the extent of 75% was issued by Dr. Satish Kumar Shrivastava, Psychiatrist (PW- 07). On 22.03.2023, the victim was re-examined by Dr. Neeraj Shukla, Clinical Psychologist (not examined) vide Ex.P/9, proved by Dr. Satish Kumar Shrivastava (PW-07) and it was opined that the victim’s cognitive function is poor and she is unable to identify colours, unable to count objects and unable to identify currency properly. Thereafter, the offence being registered under Section 376(2)(l) of the IPC and disability certificate and other medical examination certificates establishing the fact of intellectual disability of the victim, the learned trial Court, on 28.03.2023, proceeded to record the statement of the victim under Section 164 of the CrPC, in which the victim has supported the case of the prosecution. 10. However, the learned trial Court at the very instance of recording statement under Section 164 of the CrPC, ought to have followed the mandate of Section 164(5A) of the CrPC, which states as under :- 7 (CRA No. 1290 of 2023) “164. Recording of confessions and statements.— (1)xxx xxx xxx (2)xxx xxx xxx (3)xxx xxx xxx (4)xxx xxx xxx (5)xxx xxx xxx (5A)[(a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub- section (5), as soon as the commission of the offence is brought to the notice of the police Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement: Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed; (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in- chief, as specified in Section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the 8 (CRA No. 1290 of 2023) maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.]” 11. A careful perusal of the above would show that proviso to Section 164(5A)(a) of the CrPC provides the manner in which the statement of the victim of sexual offence, who is temporarily or permanently physically or mentally disabled, is to be recorded with the help of an interpreter and special educator and it is also required to be video- graphed and her statement recorded under Section 164 of the CrPC has to be taken as examination-in-chief, as specified in Section 137 of the Indian Evidence Act. However, in the instant case, the learned Special Judge has completely bypassed the mandate contained in Section 164(5A) of the CrPC and proceeded to record the statement of the victim whereas, the learned trial Court ought to have been mindful of the requirements of proviso to Section 164(5A) of the CrPC and adhered to the mandate therein. 12. Moreover, the statement of the victim was recorded on 28.03.2023 and on the same day, the statement of Dr. Satish Kumar Shrivastava, Psychiatrist (PW-07) was also recorded, in which he has proved the disability certificate 9 (CRA No. 1290 of 2023) of the victim dated 18.03.2020 (Ex.P/11) and proved the fact that she is suffering from moderate intellectual disability to the extent of 75%. However, at the time of examination-in-chief of the victim, the learned Special Judge did not hold any preliminary examination regarding competency of the victim (PW-06) to testify as a witness and to give rational answers and proceeded to commence the examination with the aid of victim's aunt (PW-01) as interpreter, Dr. Satish Kumar Shrivastava (PW-07) and one Dr. Neeraj Shukla (not examined). 13. At this stage, it would be appropriate to notice Section 118 of the Indian Evidence Act, 1872, which lays down the general rules as to the competency of the witnesses and provides that questions as to the competency or incompetency of a witness are decided by the judge, generally on a preliminary examination called the voir dire. Section 118 reads as under :- "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. 10 (CRA No. 1290 of 2023) Explanation. - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.” 14. In short, the competency of a person to give evidence in a proceeding is to be assessed by the court by considering the question as to whether the person is prevented from understanding the questions put to him or from giving rational answers to those questions, because of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. In spite of the fact that there were overwhelming records to substantiate that the victim was a person suffering from intellectual disability in view of statement of the medical expert (PW- 07) and medical examination certificates (Ex.P/9 & Ex.P/11), the learned Special Judge did not resort to any preliminary examination to ascertain the victim’s capacity to give rational answers to the questions put to her and without recording any specific finding with regard to the competency of the victim (PW-06) to testify as a witness, proceeded for examination-in-chief of the victim, which poses serious doubt regarding the competency of the victim to testify as well as credibility of her statement also. 11 (CRA No. 1290 of 2023) 15. As such, the learned trial Court was required under Section 118 of the Indian Evidence Act to record its finding regarding competency of the victim to testify as a witness but apparently, it has failed to do so. Considering the fact that the victim (PW-06) was intellectually disabled to the extent of 75%, it was incumbent upon the learned trial Court to have considered whether the victim (PW-06) was prevented from understanding the questions put to her, or from giving rational answers to those questions, on account of her intellectual disability. Such examination of the victim (PW-06) and the responses elicited from her would have either inspired the confidence of the Court with regard to the victim's level of intelligence and thereby her abilities of comprehension or urged the Court to disregard such evidence as being unreliable, incomprehensible and unconvincing. 16. Furthermore, though the interpreter (PW-01), Dr. Satish Kumar Shrivastava (PW-07) and Dr. Neeraj Shukla (not examined) were administered oath, but the victim was not administered oath before her examination, raising doubt as to the credibility of her statement. In this regard, Section 4 of the Oaths Act, 1969 may be noticed herein, which reads as under:- 12 (CRA No. 1290 of 2023) "4. Oaths or affirmations to be made by witnesses, interpreter and jurors.-(1) Oaths or affirmations shall be made by the following persons, namely:- (a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence; (b) interpreters of questions put to, and evidence given by, witnesses; and (c) jurors: Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. 17. As such, Section 4 of the Oaths Act, 1969 mandates that all persons who are lawfully examined, or give, or be required to give, evidence by or before any court, oath and affirmation shall be made by all such persons. The effect of not administrating oath or affirmation to such persons has 13 (CRA No. 1290 of 2023) been provided in Section 7 of the Oaths Act, which is reproduced as under :- “7. Proceeding and evidence not invalidated by omission of oath or irregularity.- No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence, whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth." 18. The effect of non-administration of oath by the witnesses has been considered by their Lordships of the Supreme Court in the matter of Rameshwar vs. State of Rajasthan 1 while dealing with the Oaths Act, 1873 and have held that the Oaths Act does not deal with competency, its main object is to render persons who give false evidence liable to prosecution and further held that non-administration of oath to an adult goes only to the credibility of the witness and not his competency and held in para 8, 9 & 10 as under :- “8. The proviso quoted above must be read along with Section 118 of the Evidence Act and Section 13 of the Oaths Act. In my opinion, an omission 1 AIR 1952 SC 54 14 (CRA No. 1290 of 2023) to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118. Every witness is competent unless the court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that Section 118 must prevail. 9. Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view of Section 118 these matters only touch credibility and not admissibility. In my opinion, Section 13 of the Oaths Act places this beyond doubt. It states: "13. Proceeding and evidence not invalidated by omission of oath or irregularity.-No omission to take any oath or make any affirmation ... and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence, whatever...." 10. Section 5 is the main provision regarding the administration of oaths. The proviso only sets out the cases in which the oath is not to be administered. If, therefore, an omission to take the oath does not affect the admissibility of the 15 (CRA No. 1290 of 2023) evidence, it follows that an irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either. Section 118 remains and unless the Judge considers otherwise the witness is competent.” 19. Admittedly and undisputedly, a careful perusal of the statement of the victim (PW-06) would show that no oath/affirmation was administered to her and her statement was recorded with the help of Dr. Satish Kumar Shrivastava, Psychiatrist (PW-07), Dr. Neeraj Shukla, Psychologist (not examined) and an interpreter - aunt of the victim (PW-01), as such, the effect of non- administration of the oath to the victim (PW-06) goes only to the credibility of the witness and not her competency. Furthermore, in the matter of State of Rajasthan v. Darshan Singh 2 , it has been held by their Lordships of the Supreme Court that if any witness is examined without administration of oath, it makes the evidence unreliable (See: Para 30). In light of the aforesaid decisions of the Supreme Court, since the victim (PW-06) was examined without administering oath to her, it has made her evidence unreliable. 20. One more issue which needs to be considered in this case is that while examining the victim (PW-06), the trial Court 2 (2012) 5 SCC 789 16 (CRA No. 1290 of 2023) has taken the assistance of the complainant in this case namely, Deepa Shrivas (PW-01), who is also the aunt (Chachi) of the victim and, thus, an interested witness. In this regard, their Lordships of the Supreme Court in the matter of Darshan Singh (supra) while dealing with the issue of aid of interpreter as per the provisions contained in Section 119 of the Indian Evidence Act has held that in case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case, and held in para 30 as under :- “30. In the instant case, there is sufficient material on record that Geeta (PW 16) was able to read and write and this fact stood proved in the trial court when she wrote the telephone number of her father. We fail to understand as to why her statement could not be recorded in writing i.e. she could have been given the questions in writing and an opportunity to reply the same in writing. Be that as it may, her statement had been recorded with the help of her father as an interpreter, who for the reasons given by the High Court, being an interested witness who had assisted during the trial and investigation, and was examined without administering oath, made the evidence unreliable. In such a fact situation, the High Court has rightly given the benefit of doubt and acquitted the respondent.” Apparently, in the instant case, the interpreter – Deepa Shrivas (PW-01) is the aunt of the victim and she is 17 (CRA No. 1290 of 2023) also the person who had reported the matter to Police vide Ex.P/1 and pursuant to which, the FIR was lodged vide Ex.P/2 and as such, she being an interested witness, the learned trial Court has erred in taking her assistance as an interpreter. 21. In view of the aforesaid discussion, the following facts are clearly established from the records that :- (i) Though the victim is suffering from moderate intellectual disability to the extent of 75% as certified by Dr. Satish Kumar Shrivastava (PW-07) vide Ex.P/9 & Ex.P/11, yet the learned Special Judge failed to record his satisfaction with regard to competency of the victim (PW-06) to testify as a competent witness, in light of proviso to Section 118 of the Indian Evidence Act, and, therefore, her statement cannot be relied upon to base the conviction. (ii) The victim was not administered oath before recording her examination-in-chief on 28.03.2023, as such, her evidence could not be treated as credible, in light of Section 7 of the Oaths Act read with the decision of the Supreme Court in the matter of Rameshwar (supra), making her evidence unreliable. (iii) the interpreter (PW-01) was the interested witness 18 (CRA No. 1290 of 2023) being the aunt of the victim and also the complainant who had reported the matter to Police, therefore, in light of decision of the Supreme Court in the matter of Darshan Singh (supra), the statement of the victim recorded with the help of her aunt (PW-01) as an interpreter, who is an interested witness and had assisted during the trial and investigation of the offence and who has also been deposed as a prosecution witness, could not be relied upon. (iv) there is no medical or forensic evidence supporting the case of the prosecution. 22. Concludingly, the intellectual disability of the victim (PW- 06) established by the evidence of medical expert (PW-07), the failure of the learned trial Court to record satisfaction regarding competency of the victim to testify as a witness, the examination-in-chief of the victim without administration of oath, the assistance taken by the aunt of the victim (PW-01) as interpreter for recording the victim's statement and no forensic or medical evidence supporting the case of the prosecution, makes it completely unsafe to hold the appellant guilty of serious offence of rape of the victim (PW-06) who is suffering from moderate intellectual disability to the extent of 75%. In that view of the matter, 19 (CRA No. 1290 of 2023) conviction of the appellant for offence punishable under Section 376(2)(l) of the IPC is liable to be set aside and is hereby set aside and the appellant is acquitted extending the benefit of doubt. Accordingly, the appellant be released from jail forthwith, if not required in any other matter. 23. While parting with the record, I must place on record the appreciation for assistance rendered by Mr. Rahul Tamaskar, Government Advocate. 24. As such, this criminal appeal is allowed to the extent indicated herein-above 25. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for necessary information and action, if any. Sd/- (Sanjay K. Agrawal) Judge @d!t!