The main legal point established in the judgment is the duty of the trial court to determine the competency of a witness, especially in cases involving mental unsoundness, as mandated by Section 118 of the Indian Evidence Act, 1872.

JUDGMENT :

RAJENDRA CHANDRA SINGH SAMANT, J.

1. This appeal has been preferred by the appellants against the judgment of conviction and order of sentence dated 3.4.2017 passed by the Learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985, Raipur, Chhattisgarh in Special Sessions Case No. 43 of 2014, convicting the appellants for the commission of offence under Section 376(d)/34 of the Indian Penal Code (for short ‘IPC’) and sentencing them to undergo imprisonment for life and fine of Rs. 5,000/- each, in default of payment of fine to further undergo rigorous imprisonment for 6 months to each of the appellant.

2. The case of the prosecution, in brief, is that the prosecutrix is mentally unsound person who was living with her mother Uma Bai (PW-1). On 6.10.2014, the prosecutrix was allegedly gang-raped by the appellants. Uma Bai (PW-1) was informed about the incident, who immediately arrived on the spot and saw the appellants fleeing from the spot. The prosecutrix has narrated about the incident to Uma Bai (PW-1), who then lodged the FIR Ex.P/1. On the basis of which, the case has been investigated and the charge-sheet has been filed.

3. Learned trial Court framed charges against the appellants under Section 376 read with Section 34 of the IPC, Section 376(2)(B)/34 of the IPC and also under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The appellants denied the charges and pleaded innocence and false implication. The prosecution examined as many as 20 witnesses. On completion of prosecution evidence, the appellants/accused persons were examined under Section 313 of the Cr.P.C. in which they denied all the incriminating evidence against them and again pleaded not guilty stating that they have been falsely implicated. No witness has been examined in defence. Learned Special Judge by the impugned judgment has convicted and sentenced the appellants for the offence as mentioned herein-above and acquitted them from the charge under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985.

4. It is submitted by learned counsel for the appellants that the conviction of the appellants is bad in law as there was no prosecution evidence present to hold the appellants guilty. The statement of the prosecutrix (PW-2) is not reliable. Learned trial Court has noted the demeanour of the witness and examined her through her mother even then, the prosecutrix has not replied to a number of questions put to her in cross-examination. Therefore, there was a clear denial to answer the questions by the prosecutrix which should have been taken into consideration by the learned trial Court to disbelieve her.

5. It is submitted that the conviction of the appellants is based only on the evidence of the prosecutrix (PW-2). Dr. Smt. B. Bara (PW-16) has clearly opined that there were no symptoms present on the body of the prosecutrix of any recent intercourse, hence, the conviction against the appellants is not sustainable. Placing reliance on the judgment of the Supreme Court in the case of Sadashiv Ramarao Hadbe vs. State of Maharashtra and Another, (2006) 10 SCC 92, it is submitted that the testimony of the prosecutrix does not inspire the confidence, therefore, the conviction against the appellants is liable to be set aside and the appeal be allowed.

6. Learned State counsel opposes the submissions made and submits that the prosecutrix (PW-2) has been examined by the Court by taking necessary precautions. Her statement regarding allegation of gang-rape against the appellants has remained un-rebutted in her cross-examination, therefore, there is no ground available to the appellants to pray for acquittal. It is also submitted that although, it was a case from the beginning that the prosecutrix is a person suffering from mental unsoundness, however, Section 118 of the Indian Evidence Act, 1872 does not disqualify a person of unsound min