1 2025:CGHC:40040-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1385 of 2021 1 - Uderam Chanap S/o Late Punuram Chanap Aged About 46 Years R/o Awas Para, Doundi, Police Station Doundi, District - Balod (C.G.) 2 - Lakhan Lal Devhari S/o Late Kejuram Devhari Aged About 63 Years R/o Bhandari Para, Doundi, Police Station - Doundi, District - Balod (C.G.) ... Appellants versus State of Chhattisgarh Through Station House Officer, Police Station Doundi, District - Balod (C.G.) ... Respondent(s) ________________________________________________________ For Appellants : Mr. Jitendra Kumar Saxena, Advocate For Respondent/State : Ms. Soumya Sharma, Panel Lawyer ________________________________________________________ Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 11.08.2025 1. This Criminal Appeal has been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) against the impugned judgment of conviction and order of sentence dated 30.09.2021 passed by the Sessions Judge Balod, District – Balod (C.G.) in Sessions Trial No. 15/2019, by which the ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 appellants have been convicted and sentenced in the following manner with a direction to run all the sentences concurrently:- CONVICTION SENTENCE U/s 450/34 of the IPC Rigorous imprisonment for 10 years & fine of Rs.1,000/-, in default of payment of fine, additional R.I. for 01 month U/s 365/34 of the IPC Rigorous imprisonment for 07 years & fine of Rs.500/-, in default of payment of fine, additional R.I. for 15 days U/s 376D of the IPC For life imprisonment (till natural death) & fine of Rs.1,500/-, in default of payment of fine, additional R.I. for 2 months U/s 376(2)(B) of the IPC For life imprisonment (till natural death) & fine of Rs.1,500/-, in default of payment of fine, additional R.I. for 2 months. 2. The prosecution story, in brief, is that in the intervening night of 24.02.2019 and 25.02.2019, at around 2.00 am, the accused/appellants took away the victim (deaf and dumb), PW-1, cousin sister-in-law of the complainant (PW-2), aged about 18 years and 05 months, who was sleeping in the outer room of the residential house of the complainant, to the empty and deserted house of the victim's father and raped her. After the incident, the victim woke up the complainant in the night and informed about the incident by gesture. Then the complainant, her husband, brother and neighbors saw two persons running away, chased them and caught the accused Lakhan Dehari but the accused Udayram ran away. When the complainant submitted a written complaint (Ex.P-3) about the incident at Daundi police station on 25.02.2019 at 18.00 3 hrs, sub-inspector Shobha Yadav registered First Information Report under sections 450, 365, 376 (D) read with section 34 IPC against the accused vide Ex.P-4. During the course of investigation, statement of the victim was recorded as per her version given in gesture. A spot map of the incident site was prepared vide Ex.P-5. The statement of the victim was recorded by the Judicial Magistrate First Class, Balod under Section 164 CrPC through a trained teacher vide Ex.P-1. The statements of the remaining witnesses were recorded. During the investigation, the victim's underwear was confiscated and her medical examination was done. The accused were arrested and their clothes were confiscated and they were also medically examined. After the test, the victim's underwear, vaginal slide, Gamchha of accused Lakhan and underwear of accused Udayaram were chemically tested. After all the investigation, the charge sheet of the crime registered against the accused was presented in the court of Judicial Magistrate First Class, Dallirajhara, which was received on committal to the Court of Sessions Judge, Balod on 23.04.2019. 3. Charges were framed against the accused under Sections 450/34, 365/34, 376D and 376(2)(B) of the Indian Penal Code, which the accused denied. 4. So as to prove the complicity of the appellant / co-accused in the crime in question, prosecution has examined as many as 10 witnesses and exhibited 38 documents in support of its case. 4 5. During their examination under Section 313 CrPC, the accused expressed their desire not to give defense evidence. Accused Udayaram Chanap has stated in his defense that 'he is innocent, he has been falsely implicated and he was not at the scene of crime that night”. Accused Lakhan Devhari has stated in his defence that “he is innocent, he has been falsely implicated. No diary has been presented in the challan by the Investigator regarding the action taken by him against the said accused. Udayram was not with him that night”. 6. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 30.09.2021 convicted and sentenced the accused / appellants in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred calling in question the impugned judgment. 7. Mr. Jitendra Kumar Saxena, learned counsel for appellants sumbits that the appellants have falsely been implicated in crime in question and they have been convicted by recording a finding which is perverse to the record. He further submits that victim (PW-1) is deaf and dumb and the manner, in which, her testimony has been recorded, she is not reliable witness and it cannot be said that the signs, which were exhibited by the victim (PW-1), conclusively meant to convey that she was subjected to rape by the appellants herein. He further submits that other prosecution 5 witnesses have not supported the case of the prosecution and even the medical evidence also does not support the case of prosecution, therefore, the conviction of two appellants is bad in law and they deserve to be acquitted and the appeal deserves to be allowed. 8. On the other hand, Ms. Soumya Sharma, learned Panel Lawyer supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt. She further submits that the learned trial Court has recorded the evidence of victim (PW-1), after taking due assistance of an expert and at the time when the evidence was recorded, no specific objection was taken with regard to evidence of victim (PW-1) on behalf of defence and she was subjected to detailed cross-examination also. As such, the trial Court has rightly convicted the appellants herein and the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 10. Testimony of the victim (PW-1) has been questioned on the ground that victim (PW-11) is a deaf and dumb witness and her statement has not been recorded in accordance with Section 119 of the Indian Evidence Act, 1872. On the point of the witness being a competent witness has been considered by the Hon’ble Supreme Court in the case of State of Rajasthan Vs. Darshan 6 Singh alias Darshan Lal reported in (2012) 5 SCC 789 and held as under :- 17. In M.P. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors., AIR 1954 SC 300, this Court held that a person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (See Section 119 of the Evidence Act) or the like. 18. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be a record of signs and not the interpretation of signs. 19. In Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182, this Court has considered the 7 evidentiary value of a dying declaration recorded by means of signs and nods of a person who is not in a position to speak for any reason and held that the same amounts to a verbal statement and, thus, is relevant and admissible. The Court further clarified that `verbal’ statement does not amount to `oral’ statement. In view of the provisions of Section 119 of the Evidence Act, the only requirement is that witness may give his evidence in any manner in which he can make it intelligible, as by writing or by signs and such evidence can be deemed to be oral evidence within the meaning of Section 3 of the Evidence Act. Signs and gestures made by nods or head are admissible and such nods and gestures are not only admissible but possess evidentiary value. 20. Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write. A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures. Emphasised body language and facial expression enabled the audience to comprehend the intended message. 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 8 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 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. 11. A careful perusal of the record would show that trial Court in para 9 of its judgment has clearly recorded a finding that as the victim, who is a deaf and dumb, was unable to communicate verbally, but she can make her statement understandable by signs, therefore, she has been examined with the help of Mrs. Uma Dewangan, a special teacher posted in Government Shravan Vidyayakarth Balika Vidyalaya, Gokulpur, Dhatari since 2005, who has been received Diploma in Hearing Handicapped from Aliyavarjung National Institute for the Hearing Handicapped, Mumbai, Centre Nagpur, Maharashtra in the year 1997. As such, the finding recorded by the trial Court in para 9 in this regard and the manner in which victim has been examined, is strictly in accordance Section 119 of the Indian Evidence Act 1872 and we do not find any infirmity and perversity in the said finding and argument to this effect deserves to be rejected. 12. The victim (PW-1) has identified the accused Uderam Chanap by looking at his photographs pasted on the arrest sheet Ex.P.-23 and accused Lakhan by looking at his photographs pasted on the 9 arrest sheet Ex.P.-24 and has said that they are the accused. Hence, there is no dispute regarding the identity of the accused. 13. On the basis of written complaint (Ex.P.-3) made by the complainant (PW-2), who is cousin sister-in-law (chacheri bhabhi) of the victim, Sub-Inspector Shobha Yadav (PW-10) has registered First Information Report (Ex.P.-04) in Police Station Doundi under Crime No.-19/2019 Sections 450, 365, 376D read with Section 34 IPC, wherein it has been stated that at the time of the incident, the victim (PW-1) was sleeping in the outer room of her house, from where the victim was picked up and raped in the empty and deserted house of her father. Thus, the first place of incident is the house of the first information reporter / complainant (PW-2) and the second place of incident is the empty and deserted house of the father of victim PW-1. 14. Investigating Officer Vikas Deshmukh (PW-9), Sub Inspector has marked in red colour in the map of the scene of incident Ex.P.-14, part 'A' as the house of the victim and and part ‘D’ as the house of the husband of the first information reporter (PW-2) and the has been considered as the place where the victim was sleeping. Thus, Investigating Officer has marked the parts 'A' and 'D' in the map as the scene of incident in Ex.P.-14. 15. It is stated that the site of occurrence map of the incident Ex.P.-5 was prepared by Narendra Kumar Dhruv (PW-5), Halka Patwari in the presence of witnesses, in which the portion marked in red ink 10 of the house of victim PW-1 adjoining the house of Umend Mandavi has been shown as the site of occurrence. 16. Thus, it becomes clear that the place of incident are the house of the FIR reporter PW-2 and the house of the father of the victim PW-1. Hence, it is proved that the first place of incident is the house of the FIR reporter PW-2, which is used as a human residence. 17. The victim PW-1 has stated in paragraph 2 of the main trial that she was sleeping in her house, at that time the accused picked her up and took her out. In support, PW-2, the first information reporter, has also stated that the incident took place at 2.00 am on the night of February 2019, the victim was sleeping in the shade outside the house as usual. It is proved from the said evidence that on the night of the incident, the accused had committed house trespass in the building used as human residence of PW-2, the first information reporter. 18. According to the victim (PW-1) and the first information reporter (PW-2), the incident took place at night while she was sleeping. According to the victim PW-1, the accused tied her hands and legs and took her out. The above statement remained unconfirmed in the cross-examination. Hence, it is proved that the accused had kidnapped the victim (PW-1) secretly with the intent to cause wrongful confinement. 19. Dr. A.A. Rastogi (PW-6), Medical Officer, CHC Doundi, has examined the accused Udayram and Lakhan Devhari on 11 26.02.2019 and has provided medical examination report of Udayram (Ex.P.-07) and medical examination report of accused Lakhan Devhari (Ex.P.-09) and has stated that both the accused are capable of having sexual intercourse. The said fact has not been questioned by the defence. Hence, it is proved that the accused are capable of having sexual intercourse. 20. The victim (PW-1) has stated that the accused stripped her naked and forcefully raped her. The victim PW-1 was examined by Dr.Megha Jha (PW-7), Medical Officer, District Hospital, Balod. This witness has provided the medical examination report of the victim Ex.P.-11 and has stated that she found the hymen of the victim PW-1 stretched during the internal examination, but has not given a definite opinion regarding immediate intercourse but has also stated that she had made two slides of the vaginal secretion of the victim PW-1 and advised them for chemical examination after sealing them. 21. The victim (PW-1) has stated that the underwear, which she was wearing at the time of the incident, has been seized as per seizure memo Ex.P.-02, which was not questioned by the defence in the cross-examination. The Investigating Office Shobha Yadav Sub-Inspector (PW-10) has stated that the seizure of seizure sheet Ex.P.-02 was carried out by him and the contrary suggestion has been rejected in cross-examination. Hence, it is proved that the undergarment worn by the victim PW-1 at the time of the incident was seized. 12 22. Dr. Megha Jha (PW-7), Medical Officer, after examining the underwear of the victim PW-1, has submitted the report of Ex.P.- 12 and has sealed and handed it back after advising chemical test for obtaining a definite opinion regarding the red colour stain on the said underwear. 23. During the investigation, the Investigating Officer PW-9 Vikas Deshmukh has seized the sealed slide and underwear of the victim obtained from the hospital by PW-8 Mrs. Devkumari constable K.-771 as per seizure memo Ex.P.-13. Mrs. Devkumari (PW-8) has supported the said action. 24. Investigating Officer Vikas Deshmukh (PW-9) has stated that the towel worn by accused Lakhan at the time of the incident has been seized as per seizure memo Ex.P.-15 and the underwear worn by accused Uday at the time of the incident has been seized as per seizure memo Ex.P.-16 and has stated that the written complaints of Ex.P.-17 and Ex.P.-19 respectively have been sent to the medical officer for their examination. 25. PW-06 Dr. A.A. Rastogi, Medical Officer has stated that the sealed underwear and sealed towel brought before him were sealed for obtaining a definite opinion and returned after advising chemical tests as per the reports of Ex.P.-08 and Ex.P.-10 respectively. The sealed underwear and towel received from the said hospital has been stated to be seized as per seizure memo Ex.P.-21 and 22 respectively by the Investigating Officer Vikas Deshmukh (PW-9). This witness has further stated that the undergarments of the 13 victim PW-1, her vaginal slide, underwear of accused Uderam and towel of Lakhan Devhari were sent to the State Forensic Science Laboratory through memorandum Ex.P-31 of the Superintendent of Police, Balod and the test result of the State Forensic Science Laboratory was received on Ex. P-36. 26. The test result of the State Forensic Science Laboratory, Raipur is Ex.P.-36, according to which semen stains and human sperms were found in the underwear of victim PW-1, the towel of accused Lakhan Devhari and the underwear of accused Udayram. Human sperms were not found in the vaginal slide of victim PW-1. 27. In these circumstances of the case, this Court refers to Judgment passed by the Hon'ble Supreme Court in the matter of Wahid Khan Vs. State of M.P. reported in (2010) 2 SCC 9, wherein it has been held that :- 19. It was also contended by learned counsel for the appellant that since hymen of the prosecutrix was found to be in tact, therefore, it cannot be said that an offence of rape was committed on her by the appellant. This contention cannot be accepted as offence of rape has been defined in Section 375 of the IPC. Explanation to Section 375 reads thus : “Explanation. - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.” It has been a consistent view of this Court that even a slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. 14 20. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) at page 495 which reads thus : “Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.” [Emphasis supplied] 21. Similarly in Parikh's Textbook of Medical Jurisprudence and Toxicology, 'sexual intercourse' has been defined as under : “Sexual intercourse.- In law, this term is held to mean the slightest degree of penetration of the 15 vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. 22. If the aforesaid facts are kept in mind, it cannot be disputed that the act of the appellant would certainly constitute an offence of rape and leaves no amount of doubt in our mind.” 28. In the light of aforesaid judicial precedence, absence of human sperm in the vaginal slide of victim PW-1 does not have any adverse effect on the prosecution story. According to the medical examination report of victim Ex.P.-11, victim's hymen was stretched. The medical officer has accepted the defence's suggestion that the hymen may be stretched due to unnatural intercourse. The defence has not given any suggestion in the cross-examination of the victim PW-1 that she herself had committed an unnatural act. Semen stains of human sperm have been found in the undergarments of the victim PW-1, which is sufficient to prove that sexual intercourse was committed with the victim PW-1 on the date of the incident. 29. Victim PW-1 has stated that the accused raped her forcefully. According to victim PW-1, on returning, she told the above incident to her cousin sister-in-law (PW-2), the first information reporter, who has also supported the statement that after the 16 incident, victim PW-1 knocked on the door and woke up her and her husband. When victim PW-1 came, she was scared. Victim PW-1 told them about the incident by gestures and told that someone had come. When her brother looked outside the window, accused Lakhan was running away. At that time, all the family members ran after the accused. Then her brother caught the accused, who told his name as Lakhan. The second accused had run away, to whom her sister-in-law, victim PW-1, went to his shop and told by gestures that he had also come at night. 30. In the case of Ganesan v. State, reported in (2020) 10 SCC 573, the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 31. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, {(2019) 11 SCC 575}, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. 32. In the case of Sham Singh v. State of Haryana, {(2018) 18 SCC 34}, the Supreme Court observed that testimony of the victim 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 the victim of sexual assault 17 alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. 33. Applying the law laid down by the Supreme Court in the cases (supra) 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 victims. They are found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the victim can be sustained. 34. The view taken by the learned trial Court that the appellants are the author of the crime is a pure finding of fact based on evidence available on record and we are of the opinion that in the present case, the only view possible was the one taken by the learned trial Court. 35. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt that accused entered the house of the complainant (PW-2) in the intervening night of 24.02.2019 and 25.02.2019 and made a common intention to kidnap or abduct the victim secretly and with the intent of wrongfully confining her and in furtherance of the said common intention, they picked up the victim while she was sleeping at home and took her to the vacant house of her father and abducted her secretly and with the intent 18 of wrongfully confining her and raped the victim, who was physically disabled and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the accused/appellants. 36. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 37. The appellants are stated to be in jail. They shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 30.09.2021. 38. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are 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. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra