CAV Judgment

Per Radhakishan Agrawal, J

1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 06.12.2019 passed in Sessions Trial (FTC) No.53/2017 by the 1st Additional Sessions Judge (F.T.C.), Balodabazar (C.G.), by which appellant stands convicted & sentenced as under:-

Conviction Sentence Under Section 454 of Indian RI for 3 years with fine of Penal Code (for short, ‘IPC’) Rs.1,000/- and in default to pay fine amount, additional SI for two months.

Under Section 376 of IPC Life imprisonment with fine of Rs.1,000/- and in default to pay fine amount, additional SI for 6 months.

(All the sentences were directed to run concurrently)

2. Case of the prosecution, in brief, is that on 08.05.2017 in between 06:00 to 07:00 am at village Gatoura, Police Outpost Gidhpuri of P.S. Palari, the appellant (who is also known as ‘Khorwa’ in village), committed house trespass and then committed rape on the victim, who is handicapped since birth, meaning thereby she is a deaf and dumb girl, when her (P.W.1) mother had gone to labour work. After coming from labour work, mother of the prosecutrix (P.W.2) lodged F.I.R. vide Ex.P.1 in P.S. Palari where offence under Section 376 IPC was registered against the appellant and spot map was prepared vide Ex.P.2. After obtaining consent from parents, the prosecutrix was sent for medical examination and vide Ex.P.29, medical examination report was obtained from Dr.P.M. (P.W.17), according to whom, there was no injury found over the person of the prosecutrix, no discharge and no bleeding was found. He prepared two vaginal slides and handed over the same to one lady constable for chemical analysis. However, no definite opinion could be given by him about the recent sexual intercourse. Similarly, the appellant/accused was also sent for medical examination and Dr.B.S.D. (P.W.4) has given his report Ex.P.7, according to which, appellant is habitual and is able to perform sexual intercourse. Vide Ex.P.5, underwear of the prosecutrix was seized and vide Ex.P.12 underwear of the appellant was also seized. Vide Ex.P.16, two slides and under garment of the prosecutrix were recovered. Seized articles were sent to F.S.L. for chemical examination and vide F.S.L. report dated 14.06.2017, human spermatozoa was found over the articles ‘A, B & D’, which are undergarments of both the prosecutrix and that of appellant.

3. Statements of the witnesses were recorded under Section 161 Cr.P.C. After due investigation, appellant was charge-sheeted under Sections 454 & 376 IPC before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law.

4. In order to bring home the offence, prosecution has examined as many as 17 witnesses and brought on record 30 documents whereas the defence examined none but filed two documents Ex.D.1 & Ex.D.2. The appellant was examined under Section 313 of Cr.P.C. in which, he abjured the guilt, pleaded innocence and claimed trial.

5. The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the aforesaid offence and sentenced as above against which the present appeal has been preferred.

6. Learned counsel for the appellant would submit that the conviction of the appellant under Sections 454 & 376 IPC without appreciating the evidence on record is unsustainable and bad in law. She would further submit that admittedly, the prosecutrix (P.W.1) is a deaf and dumb witness, but she has not been examined in accordance with the provisions contained in Section 119 of the Indian Evidence Act, 1872 (for short, the Evidence Act’) as she could not recognise the appellant and on account of previous enmity between the appellant and the family of prosecutrix, he has been falsely implicated in the case. Mother of the prosecutrix (P.W.2) is an interested witness to get the appellant convicted