The competency of a victim with intellectual disability must be assessed before testimony; failure to meet procedural safeguards undermines conviction.

1. Invoking the criminal appellate jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has called in question the legality, validity and correctness of judgment of conviction and order of sentence dated 09.06.2023 (Annexure A/1) passed by learned Special Judge (Atrocity) Additional Charge – Additional Sessions Judge (FTC), Bilaspur, District Bilaspur, Chhattisgarh in Sessions Case No.163/2021, whereby the learned trial Court while acquitting the other co-accused person namely, Madhu Shrivas, has convicted the appellant herein for offence under Section 376(2)(l) of the IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay ₹ fine of 2,000/- and in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 02 months.

2. The case of the prosecution, in short, is that on 11.03.2020 at around 05:30 PM, in the victim’s house at Pathakpara, Takhatpur, which comes within the ambit of Police Station Takhatpur, District Bilaspur, the appellant herein committed sexual intercourse with the major victim (PW- 06), who was suffering from moderate intellectual disability to the extent of 75% and, thereby, said to have committed the aforesaid offence.

3. It is the further case of the prosecution that the aunt of the victim (PW-01), reported the matter to the police on 12.03.2020 vide Ex.P/1, pursuant to which, the police registered FIR vide Ex.P/2. Crime details form was prepared vide Ex.P/3 and Nazari Naksha was prepared vide Ex.P/7. Clothes and slides of the victim were seized vide Ex.P/8. MLC of the victim was conducted by Dr. Bandana Choudhary (PW-09) and as per MLC Report (Ex.P/5), the hymen was old and ruptured and no definite opinion with regard to recent sexual intercourse could be given. Disability certificate (Ex.P/11) proving that the victim is suffering from moderate intellectual disability to the extent of 75% was issued by Dr. Satish Kumar Shrivastava (PW-07). The victim was also medically examined by Dr. Neeraj Shukla, Clinical Psychologist (not examined) vide Ex.P/9 proved by Dr. Satish Kumar Shrivastava (PW-07) and it was found that the cognitive function of the victim is poor and she is able to understand very simple questions and is unable to comprehend complex things. Thereafter, statements of the witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence.

4. The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 20 documents, whereas, the appellant in support of his defence has examined 01 witness and exhibited 01 document. Statement of the appellant was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which the present appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

6. Ms. Pooja Loniya, learned counsel for the appellant would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt and as such, the trial Court has erred in convicting the appella