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2018 Supreme(Bom) 2194
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
Rohit B. Deo, J.
Ganesh - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 401 of 2017
Decided On : 12-03-2018
Mr. R.D. Hazare, (appointed) counsel, for the Appellant; Mr. V.P. Maldhure, Addl. PP, for the Respondent
The central legal point established in the judgment is that physical disability does not necessarily imply inability to give consent in sexual offenses.
Headnote:
Consent - Sexual Offense - Indian Penal Code (IPC) section 376(2)(j)(l)(n) - The court discussed the evidence of the prosecutrix, the failure to record her statement, and the legal principles related to consent in sexual offenses. The court emphasized that physical disability does not necessarily imply inability to give consent and highlighted the need for caution in scrutinizing the testimony of the prosecutrix.
Fact of the Case:
The prosecutrix, who is physically challenged, accused the appellant of impregnating her. The evidence included the prosecutrix's statement, medical examination, and the failure to record her statement.
Finding of the Court:
The court found that the evidence did not establish the offense under section 376(2)(j)(l)(n) of the IPC. It emphasized the prosecutrix's capability of rational thinking and the absence of evidence regarding lack of consent.
Issues: The issues revolved around the prosecutrix's testimony, the failure to record her statement, and the interpretation of consent in the context of physical disability.
Ratio Decidendi: The court emphasized that physical disability does not automatically imply inability to give consent and highlighted the need for caution in evaluating the prosecutrix's testimony.
Final Decision: The judgment and order convicting the accused under section 376(2)(j)(l)(n) of the IPC were set aside, and the accused was released from custody.
JUDGMENT
Rohit B. Deo, J. (Oral) - Challenge is to the judgment and order dated 29.9.2016 rendered by the Additional Sessions Judge, Yavatmal in Sessions Trial 41 of 2014, by and under which the appellant - accused is convicted for offence punishable under section 376(2)(j)(l)(n) of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs. 4,000/-.
2. Heard Shri R.D. Hazare, the learned counsel for the accused and Shri V.P. Maldhure, the learned Additional Public Prosecutor for the respondent/State.
3. Prosecution case :
The prosecutrix is physically challenged. She is dumb and deaf. She suffered a bout of omitting on 08.1.2014. Her mother inquired and in response she conveyed by signs that she is pregnant. Her mother asked her who is responsible for the pregnancy. The prosecutrix took her mother and father to the house of accused Ganesh and caught his hand indicating that he was responsible for pregnancy.
Mother of the prosecutrix (PW 1) lodged report at Police Station Yavatmal (Rural) on 9.1.2014, pursuant to which offence under section 376(2)(h)(j)(l)(n) of IPC was registered against the accused. Investigation ensued, the prosecutrix was medically examined at Government Hospital, Yavatmal, accused was arrested and blood sample of the accused and the prosecutrix was collected and seized. The Investigating Officer requested the Education Officer, Yavatmal to appoint a coordinator to record the statement of the deaf and dumb prosecutrix, which statement was recorded by video recording. Upon completion of the investigation, charge sheet under section 376 of the IPC was submitted in the Court of Judicial Magistrate First Class, Yavatmal who committed the case to the Sessions Court.
The learned Sessions Judge framed charge (Exh. 6) under section 450, 376(j)(l)(n) of IPC. The accused abjured guilt and claimed to be tried. The defence is of total denial and false implication.
4. Few significant facts may be noted before evidence is re-appreciated. The Investigating Officer - PW 5 admitted that the statement of the prosecutrix was not recorded. The prosecution did produce on record a CD purportedly of the video recording of the statement of the prosecutrix. However, due to technical snag, the CD could not be played. The report of the system administrator of the Court is that the CD is not audible. The learned Additional Public Prosecutor strenuously urged that an evidence which is otherwise creditworthy can not be discarded merely because statement of the witness under section 161 of the Code of Criminal Procedure, 1973 is not recorded. The learned APP may be justified in so submitting. However, the failure of the prosecution to record the statement of the prosecutrix necessitates that the evidence of the prosecutrix must be tested with extra caution. Concededly, the disclosure that the accused established sexual relationship with the prosecutrix, is made by the prosecutrix only after she conceived. The medical evidence is that the prosecutrix was carrying fetus of 24 weeks when she was medically examined by PW 6 Dr. Archana Rathod on 9.1.2014. The prosecutrix is concededly deaf and dumb. However, her mental faculties do not appear to be seriously impaired, as is revealed from the evidence on record.
5. The prosecutrix is examined as PW 3 with the assistance of interpreter Mr. Rakesh Bansod, Mead Master of Vasantrao Naik Deaf and Dumb School, Arni. She states that the accused used to come to her house and used to commit sexual intercourse with her. She disclosed the incident to her mother when she suffered bout of omitting. She disclosed the name of the accused to her parents, is the deposition. In the cross-examination, she was asked why she kept silent till she conceived and the response was that the accused assured to marry her.
6. The evidence of the prosecutrix brings into sharp focus two significant facts. The first is that although she is deaf and dumb,
