1 2025:CGHC:7847 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 696 of 2019 Manoj Kumar Dinde S/o Roopdas Dinde Aged About 33 Years R/o Village Kachlon, Police Station Simga, District Baloda Bazar-Bhatapara Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Simga, District Baloda Bazar- Bhatapara Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Adil Minhaj, Advocate For Respondent/State : Mr. R.C.S. Deo, Penal Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 13/02/2025 1. The present criminal appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 15.03.2019, passed by learned Additional Sessions Judge, Bhatapara, District Baloda Bazar- VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.05.10 17:33:40 +0530 2 Bhatapara, in Sessions Case No. H-20 of 2017, whereby the appellant has been convicted for the offence under Sections 376(2)(l) of IPC and sentenced for R.I. for 10 years with of fine Rs. 1000/-, in default of payment of fine additional R.I. for 01 year. 2. The brief facts of the case are that, on 22.08.2017, the father of the victim (PW-3) lodged a written complaint (exhibit P-2) to the police with the allegation that at about 10:00 AM, when his daughter, who is differently abled girl, was present near the house of her uncle, the appellant dragged her towards toilet situated in front of his house and started committing rape upon her. When his daughter shouted for her and protested the other persons of the vicinity went there and rescued her. When he was being informed, he too had gone there and found his daughter shouting for help from the toilet. On being repeatedly knocked the door, the appellant opened the door and he was caught by the persons of the vicinity there. His daughter informed about the incident and the injuries caused to her by the appellant, then the report has been lodged. 3. The FIR (exhibit P-3) was registered against the appellant for the offence under Section 376 of IPC. The victim was sent for her medical examination to Government Hospital, Simga, where she was medically examined by PW-17/Dr. Sushma Maheshwari, who after her medical examination, gave report (exhibit P-17). While medically examining the victim, no external injuries were found on her body and opined that no definite opinion regarding recent forceful sexual intercourse, so she is habitual. The victim is sub-normal state, so all 3 information taking from her mother. Two slides of vaginal swab of the victim has been prepared, sealed and handed over to the police for its chemical examination. 4. Spot map (exhibit P-4) was prepared by the police and exhibit P-8 was prepared by the Patwari. The certificate with respect to the mental disability of the victim (article A-1) has been seized from the father of the victim vide seizure memo (exhibit P-5). According to the certificate issued by the District Medical Board, Baloda Bazar- Bhatapara, the victim is suffered by Moderate Mental Retardation with Cerebral Palsy of 50%. The appellant was arrested on 23.08.2017 and he too was sent for his medical examination to Government Hospital, Simga, where he was medically examined by PW-15/Dr. P.L. Chandan, who after his examination gave his report (exhibit P-14). After medical examination, the doctor has opined that the accused is able to do sexual intercourse. The vaginal slides of the victim, her underwear and pubic hairs and the underwear of the appellant were sent for its chemical examination to State FSL Raipur, from where report (exhibit P-28) was received and semen and sperms were found on the underwear, vaginal slide and swab of the victim, however no semen or sperms were found on the pubic hairs of the victim and underwear of the appellant. 5. Statement of the witnesses under Section 161 of CRPC have been recorded and statement of the victim under Section 164 of CRPC has also been recorded and after completion of usual investigation charge sheet was filed before the learned Judicial Magistrate First 4 Class, Simga against the appellant for the offence under Section 376(2)(l) of IPC. The case was committed to the Court of learned Sessions Judge, from where the same was transferred to the learned trial Court for its trial. 6. The learned trial Court has framed charge against the appellant for the offence under Section 376(2)(l) of IPC. The appellant denied the charge and claimed trial. 7. In order to prove the charge against the appellant, the prosecution has examined as many as 20 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 8. After appreciating the oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence, this appeal. 9. 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 prosecution witnesses. He would further submit that no injuries found on the body of the victim to support her allegation that she was subjected to forceful sexual intercourse by the appellant. There is no legally admissible evidence with respect to her mental disability and the certificate (article A-1) has not been proved in accordance with law. 5 The evidence of prosecution witnesses are full of contradictions on material point of allegation. Totally improbable story has been developed by the prosecution to falsely implicate the appellant in the offence in question. The previous quarrel between the father of the victim and mother of the appellant is sufficient reason for his false implication in the offence. He would further submit that the victim herself has stated in her evidence that no forceful act is committed by the appellant. She being a major girl, cannot be dragged towards toilet, that too in the dance locality and broad day time. The evidence produced by the prosecution are not sufficient to hold the conviction of the appellant, and therefore, he is entitled for acquittal. 10. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt, but for minor omissions or contradictions, which are trivial in nature, the evidence of the prosecution witnesses are fully reliable and conviction can be made on the basis of the evidence led by the prosecution. The evidence of the victim is fully reliable, which need not any corroboration. He would further submit that even if no injuries have been found on the body of the victim, looking to the nature of the offence and the manner in which she was subjected to sexual intercourse by the appellant, injuries may not have been possible to receive by the victim. He would also submit that from the certificate (article A-1), it has been proved that the victim is a differently abled girl who has been subjected to rape by the appellant. The appellant was caught on the spot, when the victim 6 shouted for help and the persons of the vicinity gathered there, therefore he cannot say that he was not there on the spot. There is no reason for his false implication. The FSL report further confirms that the victim was subjected to rape by the appellant on the alleged date and time, therefore, the conviction and sentence of the appellant is justified, which needs no interference. 11. I have heard learned counsel for the parties and perused the record of the trial Court. 12. In the present case, the victim is examined as PW-2. She is aged about 22 years, and differently abled girl. While recording her evidence, the learned trial Court has put a not in her deposition sheet that though she is mentally weak, but she is able to understand the questions and to answer it. She stated in her evidence that she knew the appellant who took her to toilet and committed rape upon her. At that time, her father came there and take her out from the toilet. In cross-examination, though she admitted that there was quarrel between her father and mother of the appellant, which was reported to the police also and there was no conversation between their family, and the appellant has not committed any forceful sexual intercourse with her, but when the question was being asked by the Court, she replied that she had stopped the appellant to commit the offence. She voluntarily stated that she shouted for help. 13. Another note has been put in her deposition sheet by the learned trial Court with respect to her physical condition that she is not able to 7 move frequently. She denied the suggestion given by the defence that she was not subjected to rape inside the toilet. She also denied that she has falsely implicated the appellant. From her evidence, though she was differently abled girl and suffered by mental disability, she firmly stated that she was subjected to rape by the appellant inside the toilet. 14. PW-10, is the witness who saw the appellant taking the victim inside the toilet and he called the persons of the vicinity. He stated in his evidence that at the time of incident, the appellant and the victim were sitting in the verandah of his house. A customer came to his shop and aware him that the appellant is making some gesture to the victim and be cautious. After a short while, he saw that the appellant taking the victim in the toilet of his house, which was situated in his courtyard. At the same moment, his brother came there and then other persons of the vicinity were called and tried to open the door of the toilet, but the appellant did not open the same. After sometime, the appellant opened the door and came out from the toilet and then the persons caught hold him. In cross-examination, though he stated that since when the appellant and the victim were sat on his veranda, he did not know, but he firm in saying that the appellant took the victim inside the toilet and after sometime in presence of the persons of the vicinity, he came out from there and caught hold by them. 15. PW-11, is another person of the vicinity, who stated in his evidence that the appellant is his neighbour. The victim is a differently abled girl. On the date of incident, at about 10:00 AM, when he had gone to 8 the house of PW-10, he informed about the incident and they called other persons of the vicinity. When they opened the door of the toilet, they saw that the appellant and the victim were inside the toilet and the victim was in tired condition. The father of the victim called the police and the victim informed the police that the appellant had committed rape upon her. In cross-examination, only one question has been asked that, he has not seen the incident, which he admitted. Though, this witness has not seen the incident of rape, but he saw that the appellant and the victim both were inside the toilet and the victim alleged that she was being subjected to rape by the appellant. There would be no reason to remain together inside the toilet and when in such a situation, the allegation of rape is leveled, presence of the appellant as well as the victim together in the toilet supported the allegation leveled by the victim against the appellant. 16. PW-3, the father of the victim, has stated in his evidence that his daughter is differently abled girl and suffered by mental disability. On the date of incident, at about 10:00-11:00 AM, he was called by the persons of the vicinity near the place of incident, and when he went there, he was being informed about the incident and then he along with other persons knocked the door of the toilet, the appellant came out from there and his daughter is also there inside the toilet, who was not in normal condition. His daughter has informed about the incident of rape and then he lodged the report to the police. The police have seized the medical certificate of his daughter, which is article A-1. In cross-examination, he admitted that 2-3 years back, 9 there was dispute between the uncle of the appellant and community members and the uncle of the appellant was punished by a fine of Rs. 500/-, but he was not deposited the same. When the father of the victim asked the mother of the applicant to deposit the fine amount, a quarrel arose between them, which was reported to the police also and since then, there is no conversation between these two families. He further admitted that the toilet, in which the alleged offence is committed is visible to any person is situated in the lane. He firmly stated that the shopkeeper had seen that the appellant taking the victim in the toilet, who had called him. In cross-examination, he too has remained firm that at the time when he reached on the spot, the appellant and his daughter were inside the toilet and when the appellant opened the door of the toilet, they took out his daughter from there. His daughter has informed about the incident that she was subjected to rape by the appellant. 17. PW-5, is another witness of the vicinity, who also present there on the place of incident. He stated in his evidence that, on the date of incident, at about 10:00-10:30 AM, the father of the victim called him and when he went on the spot, he found other persons of the vicinity there. The father of the victim informed that the appellant took his daughter inside the toilet and then he saw that the appellant and the victim were inside the toilet. The other persons of the vicinity tried to broke open the door of the toilet and then both of them had seen by them. The victim is a differently abled girl. In cross-examination, he 10 too has remained firm in his detailed cross-examination that, he saw the appellant and the victim together inside the toilet. 18. PW-6, is the brother of the victim. He stated in his evidence that at about 10:00 AM, his cousin brother (PW-10) informed about the incident to him that the appellant dragged his sister inside the toilet and when he went there and saw from the slit of the door of the toilet that the appellant and the victim were inside the toilet, thereafter he called other persons of the vicinity. His sister has informed about the offence of rape by the appellant. This witness has also remained firm in saying that he saw the appellant and the victim inside the toilet together. 19. PW-7 and PW-8 are also the persons of the vicinity, who were present on the spot and saw the appellant and the victim together inside the toilet. 20. PW-9 is the mother of the victim. On the date of incident, she had gone to her parents’ house at village Tipawan at the time of Teeja festival. At about 12:00-1:00 in the noon, her husband informed her about the incident and called her back. When she returned back, her daughter informed about the incident that the appellant dragged her towards a toilet and committed rape upon her. This witness only relates to the fact that her daughter has informed about the incident of rape of her. 21. PW-17, Dr. Sushma Maheshwari, who medically examined the victim has also observed that she was mentally challenged girl and was not 11 able to answer the questions properly. Though, no external injuries have been found on the body of the victim, but she prepared the vaginal slides and took the public hairs from the body of the victim and sent it for chemical examination. 22. From the FSL report (exhibit P-28) in the underwear, vaginal slide and swab of the victim, the semen and sperms were found present. 23. PW-2, victim was being medically examined by the doctor on 23.08.2017 and vaginal slides were prepared by the doctor on the same day, in which semen and sperms were found present, which confirms the allegation of sexual intercourse by the appellant on the alleged date and time. 24. Minute examination of the evidence makes it clear that the victim is a differently abled girl aged about 22 years on the date of incident suffered by 50% of Moderate Disability of Mental Retardation with Cerebral Palsy, which has been certified by the District Medical Board, Baloda Bazar-Bhatapara and she was subjected to rape by the appellant on the alleged date and time at his time and the persons of the vicinity got the door of the toilet opened, from where the appellant came out and the presence of the appellant and the victim is proved by the witnesses of the vicinity as well as the father and brother of the victim and the shopkeeper, who seen the appellant taking the victim in the toilet. When the persons of the vicinity got the door of the toilet opened, they saw that the victim was inside the toilet in tired condition. Presence of the appellant and the victim 12 together inside the toilet, itself is uncommon, which further supports the allegation leveled by the victim that she was subjected to rape by the appellant. 25. From the entire evidence, the defence could not extracted any material, which makes the prosecution’s case doubtful. The evidence came on record, unerringly suggests the guilt of the appellant that he took the victim, who was differently abled girl, to his toilet and committed rape upon her, which has been proved by the victim, the other witnesses as also the FSL report. This Court does not find any ground to upset the well-reasoned finding recorded by the learned trial Court convicting the appellant for the alleged offence and sentencing him. 26. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond 13 any reasonable doubt, which the prosecution has failed to do in the instant case. 27. For the foregoing reasons the appeal filed by the appellant fails and is hereby dismissed. 28. The appellant is reported to be in jail since 23.08.2017, he is entitled for set-off of his undergone period during the trial as well as during the pendency of the appeal. 29. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 30. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved