NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No. 2627 of 1999

Judgement reserved on 24.09.2019

Judgement delivered on 03.10.2019

Mehataru S/o. Guharam Mehar, Aged about 40 years, R/o. Village
Chatora, Police Station Utai, District Durg (C.G.)

—- Appellant

Versus
State of Madhya Pradesh, Through P.S. Utai, District Durg (C.G.)
(Now Chhattisgarh)

—- Respondent

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For Appellant : Mr. Qamrul Aziz, Advocate
For Respondent : Mr. Ishan Verma, Panel Lawyer

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Hon’ble Smt. Justice Vimla Singh Kapoor

1. This appeal is preferred against the judgment of conviction and

order of sentence dated 30.10.1998 passed by Additional Sessions

Judge Durg District Durg in Sessions Case No. 90/1998, wherein the

trial Court convicted the accused/appellant under Sections 450 and

Section376 IPC and sentenced him to undergo rigorous imprisonment for 7

years and to pay fine of Rs. 5,00/- under Section 376 IPC, Rigorous

imprisonment for 5 years and to pay fine of Rs. 500/- under Section

450 IPC plus default stipulations. Both the jail sentences have been

directed to run concurrently.

2. Before the trial court, the deaf and dumb victim who is alleged to

have been subjected to rape by the accused/appellant was

examined as PW-1. FIR (EX.P-2) was lodged by her husband namely

Lokpal Jangade (PW-2) as was disclosed to him by her through
gestures. It is apparent from her evidence that on 19.09.1997 at

about 7.00 AM she was all alone in her house and while cooking

food, the appellant came there and asked for fire to light bidi. It is

alleged that after smoking bidi, he caught hold of her hands, threw

her down on the ground, upturned her clothes, committed forcible

sexual intercourse with her and ran away. After arrival of her

husband (PW-2) she narrated the entire incident to him through

gestures and on coming to know the same, he along with the

prosecutrix (PW-1) went to the Police Station and the report was

lodged. After recording her statement under Section 161 CrPC

through the interpretor marked as Ex.P-1 she was sent for medical

examination. After completion of investigation charge-sheet was

filed against the appellant under Sections 450 and Section376 IPC followed

by charge being framed accordingly.

3. Counsel for the accused/appellant submits that the prosecutrix

being deaf and dumb, her testimony cannot be made basis for

conviction of the accused/appellant under Sections 450 and Section376

IPC, particularly when the medical evidence does not corroborate

her version. Absence of any external injury on her body goes to

show that she did not offer resistance to the act of the

accused/appellant and therefore, the inference can be drawn that

the act between the two was consensual. It is submitted that there

is no evidence to show that the people of neighbourhood heard any

hue and cry which is supposed to have been made by a rape victim

as the incident had taken place in the early morning.

4. On the other hand conviction and sentence imposed on the

appellant is held to be just and proper by the State counsel and no
interference can be made with the judgment impugned passed on

due appreciation of the witnesses examined by the prosecution.

5. Having analyzed the entire material on record in particular the

evidence of the prosecutrix (PW-1), a deaf and dumb married lady,

whose deposition was recorded through the interpretor, goes to

show that on the date of incident at about 7.00 AM when she was

all alone in her house, the accused/appellant came there and asked

her for fire to light bidi and thereafter taking advantage of her

loneliness and helplessness, the appellant subjected her to rape, in

spite of resistance offered by her. Thereafter, when her husband

came back to the house from outside, she narrated the entire

incident to him by gesticulation and then the report Ex.P-2 came to

be lodged. Evidence of the prosecutrix (PW-1) recorded with the

help of interpretor goes to show the involvement of the

accused/appellant in ravishing the prosecutrix (PW-1). Since, the

prosecutrix (PW-1) is deaf and dumb, to strengthen the case of the

prosecution, test identification was also conducted in presence of

two witnesses, the accused was mixed in a group of 5-6 persons of

similar stature and complexion where the prosecutrix by raising her

finger at the accused/appellant has clearly identified him to be the

person who on the date of incident came to her house and

subjected her to sexual exploitation. FSL report (Ex.P-11) also

supports the case of the prosecution, stating that the petticoat of

the prosecutrix sent for chemical examination was found spotted

with human spermatozoa. The husband of the prosecutrix (PW-1)

has also stated that after he returned home, his wife narrated the

entire incident to him by gesticulation that she was subjected to
rape by the appellant. Though the Doctor (PW-5), who medically

examined the prosecutrix (PW-1) did not find any injuries as the

prosecutrix (PW-1) was a married lady, but she has not set at

naught the possibility of rape over the prosecutrix (PW-1). Doctor

PW-8 who medically examined the accused/appellant has clearly

stated him to be fully capable of having sex. Being so, this Court

has no hesitation to say that the statement of the prosecutrix (PW-

1) to the effect that she was subjected to rape by the

accused/appellant is very specific and finds support from the FSL

report Ex.P-11 and also from the test identification report Ex.P-7

much less the medical evidence as well. No reason has been

assigned by the defence as to why the prosecutrix (PW-1) would

implicate him in a false case. Hence, the conviction and sentence

of the accused/applicant are hereby maintained. The appeal

being devoid of merit deserves to be and is hereby dismissed.

6. The appellant is reported to be on bail and therefore, he is directed

to be arrested forthwith ans send to jail for completing the sentence

imposed on him.

Sd/-

(Vimla Singh Kapoor)
JUDGE

Jyotishi/Santosh