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