CAV Judgment

1. This criminal appeal has been preferred by appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’) challenging the judgment of conviction and order of sentence dated 25.04.2023 passed by the learned Upper Sessions Judge (F.T.C.), Janjgir, District Janjgir-Champa (CG) (henceforth referred to as ‘Fast Track Court’) in Sessions Case No.62/2022, whereby the appellant / accused has been convicted for the offence punishable under Section 376(2)(l) of the Indian Penal Code, 1860 (for short “IPC”) and sentenced to undergo RI for 10 years with fine of Rs.5,000/- and in default of payment of fine, to undergo 100 days’ additional RI.

2. The case of the prosecution, in brief, is that on 28.07.2022, when daughter of complainant, who is said to be physically and mentally retarded, had gone to attend nature’s call towards canal, there appellant laid her on the ground and raped her. On hearing screams made by victim, her mother and aunt (बड़ी माँ ) rushed to the place of incident, upon seeing them, the appellant fled from the spot. Written complaint (Ex. P-1) was made by mother of victim in Police Station Pamgarh, District Janjgir-Champa, based on which, an FIR (Ex. P-2) was registered against the appellant for the offence punishable under Section 376(2)(i) of the IPC. During course of investigation, statement of victim under Section 164 of the CrPC was got recorded from the concerned Judicial Magistrate First Class, spot map (Ex.P-4) was prepared, victim was got examined by Dr. Nisha Suryavanshi (PW-6), who, vide MLC report (Ex.P-6), opined that no external or internal injury was found on the person of victim and she was habitual to sexual intercourse. However, she prepared two vaginal slides of the victim and also collected her underwear, handed over the same to the concerned police station for FSL examination. Medical examination of appellant was also got conducted by Dr. Aman Sahu (PW-7), who, vide MLC report (Ex.P-7), opined positive. Underwear of appellant was also seized vide seizure memo (Ex.P-10). Statements of witnesses under Section 161 of the CrPC were recorded, panchnama (Ex.P-5) was prepared with regard to soil stained clothes of victim, which she wore during the said act. The appellant was arrested. Seized underwear & vaginal slides of victim, and underwear of appellant were sent for chemical examination to the Regional Forensic Science Laboratory, Bilaspur in which, vide FSL report Ex. P-16, in underwear of appellant, semen and human spermatozoa have been reported to be found, but in vaginal slides of victim and her underwear, no semen and human spermatozoa have been reported to be found. After completion of investigation, a charge sheet for the offence under Section 376(2)(l) of the IPC was filed against the appellant.

3. Learned Fast Track Court framed charge under Section 376(2)(l) of the IPC against the appellant, who abjured the guilt and entered into trial.

4. So as to bring home the charge, the prosecution examined as many as 8 witnesses and exhibited 16 documents, statement of the appellant/ accused under Section 313 of the Cr.P.C. was recorded, in which, he denied all the incriminating circumstances appearing against him in the prosecution’s evidence claiming himself to be innocent and false implication. The appellant has not examined any witness in his defence.

5. After considering the evidence brought by the prosecution, learned Fast Track Court vide judgment dated 25.04.2023 convicted and sentenced the appellant, as mentioned in opening paragraph of this judgment. Being aggrieved, the appellant has preferred instant appeal.

6. Learned counsel appearing for the appellant / accused would submit that it is a case of prosecution itself that the victim was physically and mentally disabled, which has also been noted by Judicial Magistrate First Class in her deposition recorded under Section 164 of the CrPC. In this regard, note has also been appended by learned Upper Sessions