2025:CGHC:11108-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.1462 of 2018 Judgment reserved on : 27.01.2025 Digitally signed by Judgment delivered on : 06.03.2025 RAMAKANT NIRALA

1 - Bhikham Patel S/o Baraturam Patel Aged About 56 Years R/o Village Pasoud, Police Station- Devari, District- Balod, Chhattisgarh Appellant versus

1 - State Of Chhattisgarh Through Station House Officer, Police Station-

Balod, District- Balod, Chhattisgarh Respondent For Appellant : Mr. Arun Kumar Shukla, Advocate For Respondent(s) : Mr. Akhilesh Kumar, GA Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Narendra Kumar Vyas

C A V Judgment

Per Rajani Dubey J.

1. The present appeal is directed against the judgment of conviction and order of sentence dated 25.07.2018 passed by the learned Special Session Judge (SC/ST Act), District Balod in Special ST No.21/2017, whereby the appellant has been convicted and sentenced in the following manner:-

Conviction Sentence Section 376 (2) (L) ofRI for 10 years and fine of Rs.1000/-. In default of payment of fine amount, IPC additional RI for 1 month.

Section 3 (2) (v) ofLife imprisonment and fine of Rs.4000/-. In default of payment of fine amount, SC/ST Act (Prevention additional RI for 4 months.

of Atrocities) Act

2. The prosecution case, in brief, is that on 08/01/2017 a Madaie fair was organized in the Village Renghai. The victim is dumb and deaf and is also mentally weak from her childhood. On the said date, two persons namely one Jagdish Thakur and the present appellant came to the victim grand mother's house as guest around 10,0' clock and after taking lunch both went to see the sports competition which was going on in the village. The complainant and her dumb grand daughter remained in the home. Due to winter victim sat on terrace room and approximately 3.00 pm when complainant went to the roof, she saw that the victim was sleeping down and accused is lying over her. Seeing her accused get up and fled away and then victim told that accused forcibly rapped her, then she informed the incident to her family members and nearby people, thereafter a report was lodged against the appellant. After investigation, the charge sheet was submitted before the Magistrate concerned. After appreciating the oral and documentary evidence available on record, the learned trial court convicted the appellant and sentenced him, as mentioned in para 1 of the judgment.

3. Learned counsel for the appellant submits that the judgment of conviction and order of sentence passed by learned trial court is bad in law as well as facts available on record. The Trial Court has failed to appreciate the Medical report and the statement of PW-6 Dr. Smt Geeta Mishra, who deposed in her deposition that there is no sexual intercourse committed with the prosecutrix, as such the offence under section 376 of Indian Penal Code would not be made out against the present appellant. The learned Trial Court has failed to appreciate that as per FSL report (EXP-20) no human sperm was found in chemical examination of the slide and other articles. Therefore it is clear that appellant has not committed sexual intercourse with the prosecutrix. He further submits that the learned Trial Court has failed to appreciate that the prosecutrix was major aged more than 23 years at the time of incident. It should have been seen by the court below that silent deaf expert Smt. Bhuneshwari devi is also under obligation that she was not a trainer of the victim therefore she is not able to understand the gesture of the victim then conviction on the basis of her statement can not be sustained in the eye of law. There is also no medical certificate produced by the prosecution about the abnormality of the victim. He further submits that in 313 CrPC examination of the accused, the learned Trial Court did not properly put question to the accused about FSL report and convicted him on the basis of FSL report. Therefore, the appeal deserves to be allowed. Reliance has been place