1 2025:CGHC:4180-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1562 of 2021 1 - Ramayan Lal Suryavanshi S/o Ganesh Ram Suryavanshi Aged About 43 Years R/o Village Kadar, Police Station Chakarbhata, District Bilaspur, Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through Station House Officer, Police Station Chakarbahata, District Bilaspur, Chhattisgarh. ... Respondent For Appellant : Ms. Anubhuti Marhas, Advocate. For Respondent : Shri Hariom Rai, Panel Lawyer. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 23.01.2025 Per, Ramesh Sinha, CJ 1. The matter was listed for orders on application for suspension of sentence and grant of bail, however, with the consent of parties, the matter is heard finally. 2. The present appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 25.10.2021 passed by the Additional Sessions Judge (FTC), District Bilaspur in Sessions Case No.71 of 2018 whereby the appellant has been convicted and sentenced for the offence under Section 376(2)(l) IPC and sentenced Digitally signed by INDRAJEET SAHU Date: 2025.02.04 17:17:46 +0530 2 to undergo RI for 12 years with fine of Rs.500/-, in default of payment of fine amount, additional RI for two months. 3. Brief facts of the case are that the brother of victim PW-1 lodged a written complaint to the police on 22.03.2018 with the allegation that on 21.03.2018 the appellant has committed rape upon his sister, aged about 35 years, who is deaf and dumb and mentally challenged. The said incident of rape was seen by the persons of village who informed him about the incident. Since his sister was unable to speak, hear and was physically disabled by both the hands, he discussed with his family members and then lodged the report. Based on the written complaint, the FIR Ex.P/2 was registered on 22.03.2018 against the appellant for the offence under Sections 376 (l) IPC. The victim was sent for her medical examination to Community Health Cenrtre, Bilha, where she was medically examined by PW-6 Dr. Geeta Pradhan, who gave her report Ex.P/5. While examining the victim, the doctor has observed the she was mentally weak, her left ear was cutted off, she was not having fingers on her right hand and forefingers of her left hand was also not there, abrasions were found on right thigh, redness was found on right breast. On her internal examination, abrasion was found on her navicular fossa of hymen. She opined that hymen old tear, abrasion on private part and sexual assault may occur. She was referred for higher centre to Psychiatrist for case evaluation. Two slides of vaginal swab of victim was prepared, sealed and handed over to the police for its chemical examination. She was medically examined by State Mental Hospital, Sendari, Bilaspur and from where the prescription has been obtained vide Ex.P/10 & P/11 whereby the doctor has opined that moderate MR with behaviour abnormalities with congenital deaf and 3 dumb. A certificate has also been obtained from Anand Niketan, Deaf & Dumb School, Bilaspur that victim was unable to speak and hear. She was also unable to understand the gesture and their certificate is Ex.P/12. The appellant was arrested on 23.03.2018 and he too was sent for his medical examination to Community Health Centre, Bilha where PW-11, Dr.Prakash Ghodeshwar medically examined him and gave report Ex.P/22 according to which he was found to be capable to perform sexual intercourse. Spot Map Ex.P/4 was prepared by the Patwari. 4. The statement of witnesses were recorded under Section 161 CrPC. The statement of witnesses under Section 164 CrPC was also recorded and after completion of usual investigation charge sheet was filed before the Judicial Magistrate First Class, Bilha, for the offence under Section 376(2)(l) IPC. The case was committed to the court of Sessions Judge Bilaspur from where the same has been transferred to the trial court for its trial. The trial court framed charge for the offence under Section 376(2)(l) IPC. The appellant abjured his guilt and claimed trial. 5. To prove the guilt of accused, the prosecution has examined 12 witnesses. The statement of appellant under Section 313 CrPC was recorded in which he denied the circumstances appears against him, plead innocence and submitted that he has been falsely implicated in the offence. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the Trial Court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal. 4 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses which cannot be made basis to convict him for the alleged offence. The victim has not been examined by the prosecution. Although the victim was said to have been deaf, dumb and mentally challenged but she ought to have been examined with the help of Translator. There are material contradictions in the evidence of prosecution witnesses who allegedly seen the appellant committing rape upon the victim. Although certain injuries have been found on the body of the victim, but the same could be self inflicted. No FSL report was filed by the prosecution in the case to prove that sperms and semen were found on the vaginal slide of the victim which affirming sexual intercourse with her. In absence of any cogent and clinching evidence, the appellant is entitled for benefit of doubt and he may be acquitted from the alleged offence. 8. On the other hand, the counsel for the State opposes the submissions made by the counsel for the appellant and have submitted that there is ample evidence against the appellant to convict him for the alleged office, but for minor omissions or contradictions, the evidence of victim as well as other witnesses are fully reliable and conviction can be made on the basis of evidence came on record. The victim being deaf and dumb and mentally challenged has been subjected to rape by the appellant. The act of the appellant has been seen by PW-3,4 & 5. The injuries have been found on the body of victim which has been proved by PW-6 Dr. Geeta Pradhan. The victim could not be examined due her disability, but the offence has been proved by other witnesses which 5 are corroborative but for minor omissions or contradictions, there is no infirmity in the evidence of prosecution witnesses. After meticulously examining the evidence available on record, the trial court has convicted and sentenced the appellant which needs no interference. 9. We have heard the counsel for the parties and perused the records of the case. 10. True it is the victim could not be examined in the present case, but from the certificate Ex.P/10,11&12 submitted by the prosecution which has been proved by PW-8, Dr. Ashutosh Tiwari, who medically examined the victim at State Mental Hospital, Sendari, Bilaspur, have stated in his evidence that the victim was disabled by hearing and speaking. She was unable to understand the conversation of others and having abnormal behavior. He opined that the victim was suffering from mental retardation with behavior abnormalities with congenital deaf and dumb. From the certificate Ex.P/12 issued by PW-9, Smt. Mamta Mishra, it has also been proved by the prosecution that victim was unable to understand the gesture and even she could not see through gestures and completely disabled. For that reason, her statement could not be recorded. PW-9, Smt. Mamta Mishra, is the Principal of Anand Niketan, Deaf & Dumb School Bilaspur. 11. Since the victim was unable to speak anything and was disabled, deaf and dumb, even if she could not be examined, no benefit can be extended to the appellant that she was not subjected to any inhuman act like rape. 12. PW-3, Ritesh Kumar Kariyare, one of eyewitness to the incident, have stated in his evidence that on the date of incident, he along with his two other friends were playing near pond. They saw the appellant 6 committing rape upon the victim in the field near Babool tree and when they challenged, the appellant fled away from the place. They took the victim to her house and informed the incident to his father. In cross examination, he admits that whenever the victim feels hungry, she used to ask food by gesture. But for minor contradictions, he remain firmed in saying that he saw the appellant committing rape upon the victim and when they shouted, he fled away. 13. PW-4, Jyotiba Azad & PW-5, Anurag Bhaskar, both are also eyewitness and friend of PW-3, Ritesh Kumar Kariyare. Both these witnesses have also supported the case of prosecution in corroboration with the evidence of PW-3 and stated that they saw the appellant committing rape upon victim in the field near Babool tree. When they shouted, the appellant fled away and thereafter they took the victim to her house and informed the incident to her family members. These witnesses also remain firm in saying that they saw the appellant committing rape upon the victim. 14. These three witnesses PW/3,4&5 are young boys of 13-15 of age group having no animosity with the appellant. In their normal course of playing, they saw the appellant committing rape upon the victim in the field near Babool tree. Their presence at the place of incident is quite natural as they were playing at the relevant point of time. The incident was of about 7:30 AM and it cannot be said that presence of these three witnesses are unnatural or they are the planted witness. 15. PW-1 who is the brother of victim have stated in his evidence that on the date of incident his son and his two other friends have seen the appellant committing rape upon the victim. They informed him about the incident and on the next day he lodged a report against the 7 appellant. He too remain firm in his cross examination by saying that victim was mentally and physically challenged girl. Her treatment was going on at State Mental Hospital, Bilaspur. Her behavior was abnormal and she was mentally and physically not sound. 16. PW-6, Dr. Geeta Pradhan, who medically examined the victim, has found certain injuries on her body and opined that victim was subjected to sexual intercourse. She noticed injuries on private part as well as breast of the victim. The injuries found on the body of the victim further corroborates the allegation against the appellant that he committed rape upon her. 17. From the evidence available on record, particularly from the evidence of PW-3,4&5 as also from the evidence of PW-6 who medically examined the victim, the guilt of the appellant has duly been established by the prosecution that on the date of incident the appellant has committed rape upon the victim who is a mentally and physically challenged girl. Her mental and physical condition has been proved by PW-6,7,8&9 that victim was unable to hear, speak and understand the gestures and that is the reason she could not be examined by the prosecution even her statement could not be recorded, but it is proved from the evidence that she was subjected to rape by the appellant. 18. The Hon. Supreme Court in Pahlad & Another Vs. State of Haryana, 2015 (8) SCC 688, has held in para 17 & 18 as under : “17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act 8 creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the IPC but also right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Articles 14 and right to life under Article 21 of the Constitution, for they are the “fon juris” of our Constitution. The said rights are constitutionally secured. 18. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realize that when they indulge in such an offence, the really create a concavity in the dignity and bodily integrity of an individual which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution.” 19. For the foregoing reasons and also in view of the aforesaid judgment passed by the Supreme Court, we are of the opinion that the trial court has rightly held the appellant guilty for commission of rape upon the victim and there is no infirmity or perversity in his conviction and sentence. 20. Therefore, the appeal filed by the appellant fails and is hereby dismissed. The appellant shall undergo the entire sentence as awarded by the trial court. 21. The record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder