@ EIGH COUEI‘ OF CEI'EATTISGARH AT BILASPUR (IRIMINAL APPEAL N0. 62 OF 2007 APPELLANT LAKSHMI CHAND KODAKU, (IN JAIL; RESPOE‘EDEET State of Chha’ttisgarh Post for m'onouncement of order on 23/7/2009 VERSUS T‘p. SHARMA ‘ ’' “ EEGIE CQERT Q? CEEEATEEGéRE Ki EELA$EEJR CREMINAL &EAL Ni}. $2 (EF 2G5)? MEMBRMDUM OF REME§£ APPEAL iJIE? ? 3F C¥P.C 974 CH '‘ 3’4 6 .. 1 ($3 :Hoa’bi-Mx.T.P. Shanna J4 Pressntz-. Mrs. Indira Tripaihi, Advocate for tha appsllant. M1: Akhil Mishra, Deputy Ga'vt. Advocate for the State/respondent. JUEEGEMENT {Pa$5e& am 23}?! 2009} t t o This appeal is dimcted against he judgment of conviction and order of ssentence datod 9/ 1/2007 passed by the Firs Additional SoSsions Judge, Mahasamund in Ssssions Case NO. C?/2006 wheraby after hlding the appellant gumy for the oommission of offence of rape punishabie under Section 376 of the india Penal Code convicted the appellant rigorous imprisonment for 1C= years and fine of R OO/— in default ofe addtional rigorous imprisonment for £2 months. Judgment of cviction and oréer of sentence is cliaengec on te ground that without any ia of evidence iearned Court below has convicted and sentenced the appellant and thereby committed an illegality. The prosecution case in brief:— Prosecutrix PWI age aout years who was deaf and dumb was present in the village Maldamai District Mahasamund on 14f4/2006 PWIO Jagmohan saw that appetiant was committing intercourse with the precutrix in tractor room of Roopanand at about 8 pm. He informed the fact of the commission of the offence to the PW3 Kherobaj was immediateiy went to the spot she asked her daughter prosecutrix who narrated the incident by sign and gesture, she took the prosecturix in viilage and before other persons prosecutrix narrated the same thing and also wrote the name of the i §? é n I ‘fin i on ili h ot d b 16 §$?ELL&¥T LAKSHMI CHAND ME} ‘ KODAKU, S/o Kunwermani, Age about 24 years years Gram— Makiamai, Chowki—Baloda, Thana~SaraypaiL Di$tt Mahasamund, VERSUS ' RESPQNDENT Sfa'te of Chhatti$garh through Dishict Magistrate, Mahasamund Distt. Mahasamund (CG). ‘2 accusad in EX‘ 13—2 than she went t0 the _poiice Station and‘ 10dgEd the manor: . vide Ex. P—ll 0n next day. Prosecutrix was sent for Incidical examination Vide EX‘ P—i2. She was examined by PW 1’2 Dr. Smt. Mamta Sahu vide Ex. P-l’?‘ Her secondary eexual character were well developed breast well developed axillary and. pubic hairs were present One abrasioh of 5 c. m. found over her wrist. Hymen was intact white colour discharge was present over the vagina. Her uncerwear was stained with white diecharge. L2 slides of vaginal smear were taken sealed and handed over to the Constable Underwear of the prosecutrix was seized vide Ex. P-l. Spot map was prepared vide .P~4. Sealed slide were seized. vide Ex. P—6, Underwear of the appellant was seized Vide EX. P—7. Name written by the prosecutrix vide Ext P~2 was seized vide EX. P-9. Accused was sent for medical examination vide Ex. P~14i PWll Dr. Pankaj Sahu examined the accused vide EX. P—14A. One abrasion over shoulder. One abrasion over his right hand Abrasion over the back specula Left thigh stain were found over his underwear. Semen was taken and sealed. Accused was found capable of committing intercourse. One sealed bottle containing sperms of accused was seized Vide EX. P~l5i Articles were sent for chemical examination. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973(in short ‘the Code’}. After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class Saraypali who in turn committed the case to the court of SessionSuLearned Additional Sessions Judge received the case on transfer. In order to prove the guilt of appellant prosecution examined as well as 12 witnesses. Statement of the accused recorded under Section 313 of the Code where he denied the circumstances appearing against him innocency and false ‘ implication is claimed. After providing the opportunity of hearing the learned Additional Seesions Judge has convicted and sentenced the appellant aforementioned. VJVK 5.’ Learned counsal for the parties are heard. Judgment impugn€d and record 3f courts bdow perused. Learrmd counsel for the appellant argued that prosecutrix is deaf and dumb woman not in position to speak. Her statement has not been recorded with the heip of expert but with the help of her father who is interested Witness and her statement is not admissible evidence Learned counsel for the appellant further argued that no injury was found over the private part of the pr‘oseoutrjx, ’Hymen was intact shows that no offence‘of rape has been committed against the pro secutrix. 7. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that father of the prosecutrix is a natural person who is acquainted with the sign and gesture of the prosecutrix. In the present case father of the prOseeutrlx PWQ Gokul is not interested witness because he has not corroborated the statement of the prosecutrix. He has simply stated that his wife has asked his daughter and then proseout‘rix has narrated the incident The evidence adduced on behalf of the prosecution is sufficient for convicting the appellant, ln order to appreciate the contention of the parties, I have examined the evidence adduced on behalf of the prosecution. Prosecution has not adduced any evidence to show the age of prosecutrix below the age of 16 years. Learned Additional Sessions Judge has arrived at a finding in its judgment that at the time of incident age of the prosecutrix was 17 years. In order to establish the complicity of the appellant with crime in question prosecution has examined PWI Prosecutrix who has deposed that at the time of incident accused fell down her on the floor of the room where owner of the house used to keep tractor and accused open the cloths of the prosecutrix and after inserted his male organ committed intercourse with her. She has also stated that she went to police station for lodging report her underwear was seized vide EX P—li She wrote the name of appellant who raped with her in Ex. ”aw @ P—Q. Father of the prosecutrix has deposed that when he returned from the field then Manoranjan told him that appellant and proseeumx were pregent in tractor room and he haS beaten the appeliant by stick then he fled away when he reached to his house Jagmohan was present he also told that accused and prosecutrix were in the tractor rooni. He also slapped the accused and px‘osecutrix then accused fled away. On being asked prosecutrix narrated the incident to his wife then he Went to the police station for lodging the report where they lodged the report, Underwear of the prosecutrix was seized Vide EX. P—l she sent for medical examination, Spot map was prepared Vide 13—15 he has also supported the seizure of the underwear of the accused vide P—7 and other articles Vide P-6. PW3 Kherobai mother of the prosecutrix has corroborated the statement of the prosecutrix and has stated that accused dragged the prosecutrix and took in tractor room where he committed intercourse with her. PW4 Nirakar Bhoi, PW5 Manoranjan Bhoi have deposed that prosecutrix was present in the tractor room. Proseoutrix and‘acc‘used' were present in the tractor room accused fled away from the spot then Manoranjan took the prosecutrix to the house of the prosecutrix. Although PW5 Manoranjan Bhoi has not deposed that re has beaten the accds d but PW2 Gokul has specmcally stated that Manoranjan has beaten the accused the factum of beaten or causing injury has been supported by PWll Dr. Pankaj Sahu and by his report P—l4 A where 5 injures were found over the body of the accused. PW12 Dr. Mamta Sahu has examined the prosecutrix on 17/3/06 and found that her hymen was intact and discharge was present and her underwear was also stained with White discharge in her cross examination she has denied the suggestion that presence of hymen is suggestive of the fact hat she has not been subjected to the intercourse and has opined that even in the of hymen is intact rape is possible. Defence has cross examined PWI Hemlata at length in which she has admitted ' that bangle were broken and as a result of braking of tne bangle she received injury over his wrist she has also deposed that there was no light in the tractor roam but she has identified tha accused becausa accused Was a person who took the prosccutrix inside the tractor room she has also written the name of accused in Court in EX, P—3 Whose name she has earlier written in P—Q. Prosecutrix is deaf and dumb lady has deposed in ctetail that accused is person who has committed intercourse with her. Defence has not suggested her for consent. She has also not stated anything reiating the consent. 11‘ but Jagrnohan has not supported, the case of the prosecution Prosecution has declared him hostile. He has admitted in para —8 that dumb girl has Written before him but where paper is P—Q or not he cannot say. He has also deposed that diimb girl has written only her name and name of accused Lakshmi Chand Kodaku defence has suggested to PWIO Jagmohan that accused and prosecutrix were havmg some love affairs which he has denied as not known. The statement of PWI, father of the prosecutrix PW2 Gokul, PWS Khirobai Mother of the prosecutn'x, PW4 Nirakar Bhoi and PW5 Manoranjan Bhoi are sufficient for drawing the inference that appellant and prosecutrix was present inside the tractor room at night when there was no light, Manoranjan has beaten the appellant then he iled away from the spot present appellant has not afforded any explanation or has not adduced any material to show his presence with prosecutrix in the tractor room her another purpose at night in absence of light. The prsecutrix has specifically deposed that appellant has committed intercourse with her. PW? Gokul is father of the prosecutrix and is natural Witness who has acquainted with the sign and gesture of the proscutrix. Statement of the prosecutrix with the help of her’father before the Court cannot be discarded on the ground that statement of deaf and dumb witness was recorded by the Court with the help of the father of the witness. ln all cases of rape injury over the private part or torning of hymen is not necessary and normally hymen is ruptured by the first act of coitus but in case of loose, forted and elastic or thick tough and fleshy hymen torning of hymen is not necessary. According to PW3 Kherobai, PWIO Jagmohan has narrated the incident to her Hyman is situated more deeply in children then in nubile girls therefore in may cases no injury over of hymen was found at the time of commission of penetration. In the present caee PWIQ Dr. Smt. Mamta Sahu has deposed that hymen was intact but in her’ cross examination she has specifically denied the suggestion that intact suggestion of hymen is not suggestive of absence of rape and has suo—moto stated that even in case of intact hymen rape would be possible. In case of s Ramakrishna v. State! Apex Court has held that even denial of the doctor relating to the commission of intercourse the closed reading of the evidence of the doctor reveals'that the intercourse had occurred on PWI - ile. prosecutrix. Prosecutrix has deposed in her evidence relating to offence committed with her. Her statement has been corroborated by the material sources Lei from the statement of PW? Gokul, PW3 Khirobai Mother of the prosecutrix, PW4 Nirakar Bhoi and PW5 Manoranjan Bhoi although in case of rape no corroboration from the independent, A prosecutrix of a sex offence cannot he put on a par with an accomplice She is in fact a victim of the crime. While dealing with the necessity of the corroboration Apex Court has held in case of State of Maharashtra v. Chandraprakash Kewalchand Jainz that corroboration of the evidence of prosecutrix is not necessary, Para .16 reads as follows : — “16. A prosecutn'x of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act) 1872 {in short ‘the Evidence Act’) nOwhere says that her evidence cannot be accepted unless it is conobordted in materiaé particulars, She is undoubtedly a oometent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases ofphysiwl vioience. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or Witness and no more. What is necessary is that the court must be alive to and conscious ofthe fact that it is dealing with the evidence of a person \ \ ‘ (2009) 1 soc 133 2 2004 (1) soc. 475 @ who is interested in the outcome of the charge teveied by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the pmsecutn‘x, there is no rule of law ofpractioe incomorated in the Evidence Act simiiar to Illustration (b) to Section I 14 which requires it to took for corroboration. Kfor some reason the court is hesitant to place implicit reliance on the testimony of the prosecatrix it may lookfor evidence which mag tend assurance to her testimony short of corroboration required in the case of an accomplice The nature of evidence required to lend assurance to the testimony of the pmsecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of jull understanding, the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutn‘x does not have a strong motive to falsely involve the person charged) the court should ordinarily have no hesitation in accepting her evidence. " 12) The statement of proscutrix inspire confidence and trustworthy her statement is sufficient for drawing inference that appellant has committed offence of rape. 18. After appreciating the evidence available on record the learned Additional Sessions Judge has convicted the appellant under Section 376 of the Indian Penal Code. The conviction is based on credible and clinching evidence sustainable under the law. As regard the question of sentence s concerned i appellant has committed the rape with deaf consideration the sentence of rigorous imprisonment of 10 years with fine of Rs. 100/— is neither excessive nor unjust. 14. For the foregoing reason, I do not find any illegality or infirmity in the judgment impugned. Consequently, appeal is liable to be dismissed and it is hereby dismissed. T,P. SHARMA Judge Sd/~ and dumb girl Taking into i l i