HIGH COURT OF CHHATTISGARH AT BiLASPUR CRIMINAL APPEAL No. 167 OF 2006 APPELLANT (In Jailt VERSUS NON-APPLICANT Shivnandan Sahu, S/o Jeevrakhan Sahu, aged 60 years, R/o Village Khursipar, Poiice Station Dongargaon, Distt. Rajnandgaon (C.G.) State of Chattisgarh, Through Police Station Dongargaon, District Rajnandgaon (C.G.). Criminal Appeai Under Section 374(2) of the Code of Criminal Procedure. 1973 (SB :Hon'ble Mr. T.P.Sharma, J.) Present: Shri K.K. Singh, counsel for the appeilant. Shri Sushii Dubey, Govt. Advocate for the State. ORAL-JUDGMENT (Passed on 14-07-2009) This appeal is directed against the judgment of conviction and order of sentence dated 21-06-2005 passed by the First Additional Sessions Judge, Rajnandgaon in Sessions Trial No.212/2004 whereby iearned Additiona! Sesslons Judge after holding the appellant guilty for the offence punishable under Section 376 of the Indian Penal Code (for short sthe Code') and sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.5000/- in default of payment of fine to undergo additional rigorous imprisonment for 2 years and Rs.3000/- has also been awarded to the prosecutrix as compensation. 2. Judgment of conviction and order of sentence is chalienged on the ground that without any iota of evidence learned Additional Sessions judge convicted and sentenced the appellant for the offence. 3. Case of the prosecution in brief: PW/2 Bishakhabai was aged about 65 years is a deaf & dumb woman on 12-11-2CX34was sleeping in her house. At about 8.30 to 10.30 on the same night when her husband was not present in her house, present accused appellant came and committed intercourse against her will and consent. She narrated the incident to her relative by sign and gesture. Village meeting was convened and finally a written report Ex. P-1 was lodged before the Police Station Dongargaon on the basis of Ex.P-1, F.I.R. was lodged vide Ex. P-2 on 18-11-2004. Spot map was prepared vide Ex. P-4 and P-5 and her Petticoat was seized vide Ex. P-6. She was sent for examination vide Ex. P-10. She was examined by Dr.Manlsha Keshar vide Ex. P-16 and find that she was accustomed to intercourse. 4. Statement of the witnesses was recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short (the Code9). Soon after completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Rajnandgaon who in turn committed the case to the Court of Sessions. Learned Additional Sessions Judge received the case on transfer. 5. In order to prove the guilt of the appellant. prosecution examined as many as nine witnesses. Statement of the appellant was recorded under Section 313 of *the Code' in which he denied the circumstances appearing against him, pleaded innocence and false implication. Accused has also examined defence witness DW/1 Dhansuram, PW/2 Dwarika Prasad, DW/3 Jagritram who have deposed about the previous dispute but have admitted that vjllage meeting was convened and prosecutrix has narrated the incident by sign and gesture. •W.^W^M ^ 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 7. Learned counsel for the parties are heard and perused the material available on record including thejudgment impugned. 8. Learned counsel for the appellant vehementiy argued that prosecution has not adduced any evidence to show that present appellant has committed any offence of rape with prosecutrix Bishakhabai. In the absence of such evidence. the judgment of conviction and order of sentence is not sustainable. 9. Learned counsel appearing for the State submits that evidence adduced on behalf of the prosecution is sufficient for drawing an inference against the appeltant for commission of offence punishable under Section 376 of the Code. 10. In order to appreciate the contention of the parties, l have examined the evidence adduced on behalf of the prosecution and defence. PW/2 Bishakhabai, aged about 65 years is a deaf & dumb woman is not disputed by the defence. She was examined by the Court below with the assistance of trained teacher. Her statement reveais that while she was sleepsng in her house, the appellant came to her house and after putting a cloth in her mouth and removing the undergarments, committed intercourse with her. Village meeting was convened and she has also narrated the incident in the viilage meeting. Her statement is corroborated by PW/1 Anand Kumar, grandson of the prosecutrix, PW/5 Shyamlal, husband of the prosecutrix, PW/7 Jivram and DW/1 Dhansuram, PW/2 Dwarika Prasad, DW/3 Jagritram have already admitted in their cross- -....: ^^.••^^^s-ds^' h=^>^^ ^^ ^ . Kvr examination that village meeting was convened and prosecutrix Bishakhabai has narrated the incident by sign and gesture. 12. The factum of commission of rape has not been disputed by the appellant although F.I.R. has been lodged after 6 days of the incident but it has been properly explained. PW/2 prosecutrix Bishakhabai has deposed in the Court that accused is a person who has committed rape with her. Nothing has been suggested to this witness and to discredit her testimony. The statement of prosecutrix is corroborated by other witnesses including the defence witnesses for drawing inference. Present appellant has committed rape with prosecutrix. As regards the question of sentence is concerned, the age of prosecutrix is 65 years. The present accused has committed the offence rape upon a woman aged about 65 years who was deaf & dumb; 13. Taking into consideration the offence committed against such woman, appellant does not deserve any sympathy. The Court below has rightly convicted and sentenced the appellant as aforementioned. I do not find any scope for interference in the judgment impugned, the appeal is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge