NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.1282 of 2017 Salim Kujur, S/o Pyar Sai Kujur, aged about 24 years, R/o Village Mudapara, Mosandipara, Police Station: Patthalgaon, District Jashpur Chhattisgarh ---- Appellant Versus State of Chhattisgarh, through Police Station Patthalgaon, District Jashpur, Chhattisgarh.

---- Respondent For Appellant : Mr. Pushpendra Kumar Patel, Advocate.

For State/Respondent : Mr. Shrikant Kaushik, Panel Lawyer Hon'ble Shri Justice Arvind Singh Chandel Judgment on Board

01.08.2023

1. This appeal has been preferred against the judgment dated

11.08.2017 passed in Session Trial No.08/2017 by learned Additional Session Judge Kunkuri, District Jashpur (C.G.), wherein, the Appellant has been convicted for offence punishable under Section 376 (2)(L) of the IPC and sentenced to undergo RI for 10 years and to pay fine of Rs.

500/- with default stipulation.

2. As per prosecution case, the prosecutrix is mentally and physically disabled girl since her childhood and at the time of incident, she was aged about 24 years. On 19.07.2016, a written complaint (Ex.P4) has been lodged by sister of the prosecutrix (PW1) before concerned police station alleging therein that on the date of incident i.e. 19.07.2016, She reached village Mudapara to see her sister/prosecutrix as she was not well and when she went inside her house, she saw that the victim was lying on the cot and her tights and salwar were opened and the Appellant was sitting on top of her and was naked. On seeing her, the Appellant started wearing his clothes. The above incident was informed by this witness to neighbors Ravidani (PW5) & Suchita (PW6). The incident was also informed to her mother (PW4). Thereafter, the written complaint was lodged. On the basis of said written complaint, FIR (Ex.P1) was lodged. The prosecutrix was medically examined by Dr. Anita Minj (PW3) her medical examination report is Ex.P10. At the time of medical examination of the prosecutrix, abrasions were found in her lumber region and also abrasion was found in left pelvic region. Statements of witnesses were recorded under Section 161 of Cr.P.C. Seized articles i.e. vagina slide and tights of the prosecutrix sent for FSL. In FSL report (Ex.P19), human sperm was found in vaginal slide and tights of the prosecutrix. After completion of investigation, charge-sheet was filed by the Police. Trial Court framed the charges against the Appellant under Section 376 (2)(L) of the IPC. To robe the Appellant in the crime-in- question, the prosecution has examined as many as 9 witnesses. In statement of the Appellant recorded under Section 313 of Cr.P.C, he pleaded innocence and false implication. However, no defence witness was examined by the Appellant.

3. After completion of trial, Trial Court convicted and sentenced the Appellant as mentioned in paragraph 1 of this judgment.

Hence, this appeal.

4. Learned Counsel appearing on behalf of the Appellant submits that without having any sufficient evidence available on record, the Trial Court convicted the Appellant. He further submits that only on the basis of statement of sister of the prosecutrix (PW1), the Appellant has been convicted. There is no conclusive evidence available on record to show that the prosecutrix at the time of incident was suffering from any mental or physical disorder, therefore, recording her statement before the Court below is essential. Further, medical report of the prosecutrix also not supporting the case of prosecution, therefore, conviction of the Appellant is not sustainable.

5. On the contrary, learned State Counsel opposes the argument advanced by learned Counsel appearing for the Appellant and supported the impugned judgment.

6. I have heard learned counsel appearing on behalf of the parties, perused the entire record and gone through the statement of the witnesses with utmost circumspection.

7. The first question for consideration would be, whether at the time of incident, the prosecutrix was sufferi