Santram Satnami vs State Of Chhattisgarh

Naresh Kumar Chandravanshi, J

This criminal appeal under Section 374(2) of Cr.P.C. is directed by the appellant/accused against the impugned judgment of conviction and order of sentence dated 12-1-2022, passed by learned 1st Additional Sessions Judge, (FTC) Balodabajar Distt. Balodabajar-Bhatapara (henceforth referred to as ‘trial Court’) in Sessions Trial No. 28/2019, whereby the appellant-accused has been convicted for offence under Section 450 and 376(2)(l) of the Indian Penal Code, (in short, hereinafter referred to as ‘the IPC’) and sentenced as under :-

Sr.

Sentence u/S.

sentence

Default stipulation

Default stipulation

1.

450,  IPC

5 years RI

Rs. 2500/-

1 year RI

2.

376(2)(l), IPC

Life imprisonment

Rs. 2500/-

1 year RI

Both the substantive jail sentences have been directed to run concurrently.

Facts of the case, in brief, are that on 21-10-2017, grand mother of the victim, made written complaint at police Out Post Lavan, PS Kasdol alleging therein that, on 18-10-2017 at about 9 - 10 am, when she was in her house and her grand daughter (victim), aged about 32 years, who is deaf and dumb and also mentally retarded, was sleeping in a room, the accused came in her house and asked for water for drinking. She gave him water in a glass, thereafter when she went to put glass inside the house, at that time, accused went into the room of victim and closed the door and raped her. Looking to the closed door of room of victim, when she knocked the door, then accused opened the window of the room, jumped and fled from the spot. It is further alleged that when she went in the room, then she found that clothes of victim were opened and white discharge and blood stains were seen in her panty. Based on above written complaint, unnumbered FIR was lodged at Police Out Post Lavan. During investigation, victim was got examined by Dr. Neha Gangeshree (P.W. 12) and vide Ex. P-6, she reported that abrasions were found in her left buttock, left side of libia majora, hymen was torn, sign of struggle was also seen. She suggested urine test for examination of pregnancy. She also prepared two slides of vaginal smear. Underwear of victim was seized from her mother. Two vaginal slides of victim were also seized. Those articles were sent to FSL for chemical examination. Statement of witnesses were recorded, spot map was prepared by police as well as Patwari. The victim was got examined by Medical Board of District Balodabajar-Bhatapara, in which she was reported moderate (50%) retarded. Accused was also got examined by Dr. Raj Kumar Sahu (P.W. 13). The accused was arrested on 31-12-2018. After completion of investigation, charge sheet was filed for the offence under Section 450, 376(2)(l) of the IPC in the Court of Judicial Magistrate First Class, Kasdol, who in turn committed the case to the Court of Sessions Judge, from where the case was transferred to learned Upper Sessions Judge, Balodabajar, who tried the case.

Learned trial Court framed charges under Section 450 and Section 376(2)(l) of the IPC, read over and explained to the accused, who abjured his guilt.

In  order  to  bring  home  the  offence,  the  prosecution examined following witnesses :-

1

P.W. 1 Maternal grand mother of victim

2

P.W. 2 Mother of the victim

3.

P.W. 3 Father of the victim

4

P.W. 4  Brother of victim

5.

P.W. 5  Khilawan Das, Kotwar

6.

P.W. 6 Sukdev Das, Kotwar

7.

P.W. 7 Dwarika Ratre, Head Constable

8.

P.W. 8 Gangotri Dhruv, Head Constable

9.

P.W. 9 Brahaspat Pradhan, Patwari

10.

P.W. 10 Dr. Suresh Khunte, member of Medical Board who examined the victim

11.

P.W. 11 Balkaran Verma, Asstt. Sub Inspector

12.

P.W. 12 Dr. Neha Gangeshri, Doctor who examined  the prosecutrix

13

P.W. 13 Dr. Rajkumar Sahu, who examined the accused

14.

P.W. 14 Ishwar Toppo, Asstt. Sub Inspector

15.

P.W. 15 Satyaprakash Khare, Constable

16.

P.W. 16 Manoj Kumar Prajapati, Investigating Officer

Besides aforesaid ocular evidence, prosecution also exhibited following documents :-

Sr.

Particulars

1

ExP-01 Written complaint lodged by P.W. 1.

2

ExP-02 FIR

3

ExP-03 Spot map

4

ExP-04 site map

5

Ex. P-05 Consent letter of mother of victim for medical examination of victim.

6

ExP-06A Memo for examination of victim.

7

ExP-06 MLC report of victim

8

ExP-07  Seizure Memo of underwear of victim

9

Ex. P-8 Consent letter of father of victim

10

Ex. P-9 Seizure memo  of vaginal slide

11

Ex. P-10 Certificate of District Medical Board

12

Ex. P-11 FIR

13

Ex. P-12-A  Letter to CMO for examination of underwear of prosecutrix

14

Ex. P-12 Report of Dr. Neha Gangeshri regarding underwear of

victim

15

Ex. P-13 Document of District Hospital, Balodabajar-Bhatapara

16

Ex. P-14 Urine examination report

17

Ex. P-15-A Memo for examination of accused

18

Ex. P-15 MLC report of accused

19

Ex. P-16 Memo to Medical Board

20

Ex. P-17 Arrest memo

21

Ex. P-17A Information of arrest

22

Ex. P-18 Memo to FSL, Raipur

23

Ex. P-19 FSL report

24

Ex. P-20 Memo for preparation of Site Map

Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied all the circumstances appearing against him and stated that he is innocent and has been falsely implicated.

The trial Court upon appreciation of oral and documentary evidence available on record, by the impugned judgment convicted and sentenced the appellant/accused as mentioned in opening paragraph of this judgment against which, this criminal appeal has been filed.

Learned counsel for the accused would submit that accused has been falsely implicated in the instant case only on the basis of suspicion, as none of the witnesses have proved the fact that he/she had seen the accused committing alleged crime or fleeing from there. Complainant, who is grand mother of victim, herself is 75 years old lady. Hence, due to poor eye sight, she could not have seen things happening at some distance. It is further submitted that there are various contradictions and omissions in deposition of prosecution witnesses and their police statements. Further, victim has not been examined by the prosecution in the instant case, therefore, the accused had no occasion to cross-examine her. Hence, only on the basis of deposition of old aged grand mother and other hearsay witnesses, who are relatives of victim, and since no independent witnesses have been examined supporting the allegations made against the accused, accused cannot be convicted, that too, looking to the material contradiction and omissions in their deposition. It is further submitted that Dr. Neha Gangeshree (P.W. 12), who examined the victim, has stated that some abrasions were found on the left buttock and left side of libia majora of the victim, but she has admitted in her cross-examination that such injury can be sustained by a person by scratching by nails, thus, it cannot be ruled out that the injuries sustained by the victim can be self inflicted. It is further submitted that accused has been convicted without any legal and cogent evidence in such a heinous crime. Hence, it is prayed that the impugned judgment may be set aside by allowing the appeal and the appellant may be acquitted.

Per contra, learned State counsel would submit that victim is not only deaf and dumb, but she is also mentally retarded and this fact has also been proved by Dr. Suresh Khunte (P.W. 10), who was a member of Medical Board, who examined the victim and gave their report vide Ex. P-10. It is further submitted that taking undue advantage of the fateful situation of the victim, the accused raped her and when her grand mother knocked the door of her room, which was closed from inside, then the accused jumped from window and fled away, which was seen by the complainant (P.W. 1). It is further submitted that Medical report and FSL report are also against the accused and learned trial Court after considering entire evidence has convicted and sentenced the accused which does not call for any interference by this Court.

We have heard learned counsel appearing for the parties, perused the impugned judgment and original record of the trial Court.

As per prosecution case, victim is a girl aged about 32 years and further she is deaf and dumb and mentally retarded also. In this regard, P.W. 1 who is grand mother of victim, has stated in her deposition that victim is deaf and dumb and also mentally weak, therefore, even she could not do her routine work. In cross-examination, aforesaid fact has been left unrebutted by defence counsel. Statement of P.W. 1 with regard to deaf and dumbness of victim and her mental retardness found well supported by P.W. 2 mother of victim and P.W. 3 father of victim also.

During investigation, victim was sent to District Medical Board, Balodabajar vide memo Ex. P-16, written by ASI Ishwar Toppo (P.W. 14), thereafter she was examined by the Medical Board. Dr. Suresh Khunte (P.W.10) was one of the member of the Medical Board. He has deposed that on 5-10-2019, he along with Dr. Vasim Raza, Dr. Neha and Dr. Jangde had examined mental status of the  victim, in which they found that she was mentally retarded and her mental retardness was 50%. Aforesaid facts have been well supported by ASI Ishwar Toppo (P.W. 14) and Dr. Neha Gangeshri (P.W. 12). It also gets support from medical report Ex. P-10, which was prepared by the Medical Board and proved by Dr. Suresh Khunte (P.W. 10).

Nothing has been elicited in cross-examination of relatives of victim, Dr. Suresh Khunte (P.W. 10) or ASI Ishwar Toppo (P.W. 14) to disbelieve their aforesaid statement, however Dr. Suresh Khunte has admitted that they had not examined physical condition of victim as opinion was sought only with regard to her mental status. He has also stated in cross-examination that, mental retardation of victim was moderate. Thus, from aforesaid deposition of P.W. 1, P.W. 2, P.W. 3, Dr. Suresh Khunte (P.W. 10) and ASI Ishwar Toppo (P.W. 14), it is well proved that victim is deaf and dumb and was mentally retarded lady prior to the incident. In the instant case, deposition of victim has not been recorded by the prosecution, but since it has been proved by parents of victim and medical and independent witnesses also, that victim is deaf and dumb and mentally retarded also, therefore, only on the basis of not recording of her deposition, accused cannot be benefitted and it has to be seen that whether from the evidence adduced by the prosecution, it has been proved that accused raped the victim or not ?

P.W. 1 is grand mother of victim. She has stated in her deposition that on the date of incident, after giving bath and meals to the victim, she made her sleep in a room. She has further stated that accused, who was playing cards near her house, came and asked her for water to have drink. She gave him water, he drank it and thereafter when she went inside the house to put glass, at that time, accused went inside the room of victim and closed door from inside. She has further stated that when she pushed the door of room of victim, then it was not opened, thereafter she called her grand sons, hearing her calls, appellant/accused jumped from the window, whom her grand sons caught. She has further stated that accused had raped victim as her panty was found stained with blood and her clothes were putdown upto the knee. She has further deposed that she has made written complaint Ex. P-1 in this regard, which was written by her grand son and based on that, FIR Ex. P-2 was lodged at Police Out Post Lavan. In cross-examination, P.W. 1 has admitted that on the date of incident, many persons were roaming there, but she has denied that various persons had come to her to ask for water. She has admitted in cross-examination that after giving water, she immediately turned and came back. She has further admitted that after having water, she does not know as to where appellant had gone. She has also admitted that she has not seen the accused going in the room, but she has clearly stated in cross-examination also that she had seen the accused jumping from window. Thus, she has supported her deposition in cross-examination also.

P.W. 2 is mother of victim and P.W. 3 is father of the victim. As per their deposition, at the time of incident, they were not on the spot, rather they had gone to Kasdol. Hence, they were informed about the incident over phone. Both of them have stated that they were informed by P.W. 1 and P.W. 4 about the incident that, the accused went in their house, demanded water and drank water and subsequently made physical relation with the victim and fled from the spot by jumping from window. P.W. 2 mother of victim has further stated in her deposition that Chaddi (panty) of victim was stained with blood and her skirt was also stained with blood. She has further stated that underwear of victim was seized from her vide seizure memo Ex. P-7. Although the seizure of panty of victim has not been supported by P.W. 5 Khilawan Das and P.W. 6 Sukdev Das who are witnesses of aforesaid seizure, but the same has been well supported by the Investigating Officer Manoj Kumar Prajapati (P.W 16).

P.W. 4 is brother of the victim. He has also supported the statement of her grand mother (P.W. 1), but as per his deposition, at the time of incident, he was not present in the house, rather he reached there after calling by his grand mother (P.W. 1). Hence, the deposition of grand mother (P.W. 1) does not get support from brother of victim (P.W. 4) that her grand son saw and caught the accused. P.W. 4 has admitted in his cross examination that at the time of incident, only grand mother and victim were present in their house. He has also admitted that at the time of incident, Gauri – Gaura pooja was going on outside their house, but no independent witness has been examined to support the case of prosecution. Dwarika Ratre (P.W. 7), Gangotri Dhruv (P.W. 8), Brahaspat Pradhan (P.W. 9 ) and Balkaran Verma (P.W. 11) are formal witnesses. Therefore, to examine the case of prosecution, the medical report and FSL report are required to be considered.

Dr. Neha Gangeshree (P.W. 12) has medically examined the victim and her report is Ex. P-6. She has deposed that on medical examination, she found that there were scratch marks on the right buttock of victim size 0.2 x 0.1 x 0.1 cm, there were scratch marks on left side of libia majora and her hymen was ruptured. The doctor has further stated that sings of struggle were present. Ex. P-19 is FSL report of Slide (Article A) and underwear ( Article B) of the victim, in which, it has been reported that in Article A and B, stains of spermatozoa and human sperm were found. Learned counsel for the accused has heavily stressed upon the fact that Dr. Neha Gangeshree (P.W. 12) has admitted that the scratches found on buttock and Libia majora can be caused by self-scratching with nails, but in the instant case, since there is direct allegation against the accused in respect of commission of rape with mentally retarded victim, medical report and FSL report also supports this fact, and further accused was seen by her grand mother (P.W. 1) fleeing from window of that room, where she was sleeping, hence only on the basis of admission made by the doctor (P.W. 12) , it cannot be held that those injuries were caused by the victim herself.

Grand mother (P.W. 1), mother  (P.W. 2), father (P.W. 3) and brother (P.W. 4) of victim have vehemently denied the suggestions that due to money transaction dispute, they have falsely implicated the appellant in the instant case. Although aforesaid witnesses are relatives of victim but there is no reason as to why they will depose a false statement. The question comes to core that even if the witnesses are stated to be relatives, why they should implicate some innocent persons.

The Supreme Court in the case of Mahesh Vs. State of Maharashtra [2008 (13) SCC 271] held thus :-

This Court in Salim Sahab v. State of M.P. [(2007) 1 SCC 699 ] held that: (SCC pp. 701 & 703, paras 11 & 14-15)

“11. … [mere relationship] is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

***

… in Masalti v. State of U.P. [AIR 1965 SC 202] this Court observed: (AIR pp. 209-10, para 14)

‘But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. … The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.’

To the same effect are the decisions in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886] , Lehna v. State of Haryana [(2002) 3 SCC 76 : 2002 SCC (Cri) 526] and Gangadhar Behera v. State of Orissa [(2002) 8 SCC 381 : 2003 SCC (Cri) 32] .”

As regards non-examination of the independent witnesses who probably witnessed the occurrence on the roadside, suffice it to say that testimony of PW Sanjay, an eyewitness, who received injuries in the occurrence, if found to be trustworthy of belief, cannot be discarded merely for non-examination of the independent witnesses. The High Court has held in its judgment and, in our view, rightly that the reasons given by the learned trial Judge for discarding and disbelieving the testimony of PWs 4, 5, 6 and 8 were wholly unreasonable, untenable and perverse. The occurrence of the incident, as noticed earlier, is not in serious dispute. PW Prakash Deshkar has also admitted that he had lodged complaint to the police about the incident on the basis of which FIR came to be registered and this witness has supported in his deposition the contents of the complaint to some extent. It is well settled that in such cases many a times, independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that persons sometimes are not inclined to become witnesses in the case for a variety of reasons. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victim, that fact by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses and rule of caution is that the evidence of the relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny.”

The Supreme Court in the case of Nagarjit Ahir Vs. State of Bihar reported in [(2005) 10 SCC 369], has held as under :-

“12. It was then submitted that in spite of the fact that a large number of persons had assembled at the bank of the river at the time of occurrence, the witnesses examined are only those who are members of the family of the deceased or in some manner connected with him. We cannot lose sight of the fact that four of such witnesses are injured witnesses and, therefore, in the absence of strong reasons, we cannot discard their testimony. The fact that they are related to the deceased is the reason why they were attacked by the appellants. Moreover, in such situations though many people may have seen the occurrence, it may not be possible for the prosecution to examine each one of them. In fact, there is evidence on record to suggest that when the occurrence took place, people started running helter-skelter. In such a situation it would be indeed difficult to find out the other persons who had witnessed the occurrence. In any event, we have the evidence of as many as 7 witnesses, 4 of them injured, whose evidence has been found to be reliable by the courts below, and we find no reason to take a different view.”

The Supreme Court in case of Sadhu Saran Singh Vs. State of UP. [(2016) 4 SCC 357] held thus :

“29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.”

In view of above law laid down by Hon’ble Supreme Court in above cited cases, P.W. 1 to P.W. 4 only being relatives of victim and due to non-examination of independent witnesses, their deposition cannot be discarded mechanically.

In view of above discussion and on the basis of evidence available on record particularly evidence of P.W. 1 grand mother of the prosecutrix, duly supported by medical report (Ex. P-6), and FSL report (Ex. P-19), we find that learned trial Court has rightly held that the accused/appellant has committed house-trespass in order to the commit rape with the victim, and also committed rape with her. In the case of Chaman Lal Vs. State of Himachal Pradesh [ Cr. A. 1229/2017 date of judgment – 3-12-2020 passed by Supreme Court] the victim girl was deaf and dumb and mentally not matured girl, who was exploited by the accused and therefore, he was convicted and sentenced by the High Court, in that case, Hon’ble Apex Court observed that a person suffering from mental disorder or mental sickness deserves special care, love and affection, they are not to be exploited.

Therefore, we find that the trial Court has rightly convicted the accused and there is no illegality or infirmity in the impugned judgment of conviction warranting interference by this Court.

So far as punishment is concerned, we uphold punishment awarded by learned trial Court to the appellant for the offence under Section 450 of the IPC. But considering the facts and circumstances of the case and particularly gravity of the evidence, as it seems that due to 50% mental retardation of victim, prosecution has not examined her, we find it appropriate to modify the sentence of life imprisonment awarded by learned trial Court under Section 376(2)(l) of IPC and instead thereof, we award sentence of 10 years RI to the appellant and maintain fine sentence and default stipulation. Therefore, the appellant is sentenced as under :-

Sr.

Sentence u/S.

sentence

Default stipulation

Default stipulation

1.

450,  IPC

5 years RI

Rs. 2500/-

1 year RI

2.

376(2)(l), IPC

RI for 10 years

Rs. 2500/-

1 year RI

Both the substantive jail sentences shall run concurrently.

Consequently, the instant appeal is partly allowed.

The appellant is stated to be in jail. He is directed to serve out the sentence as awarded to him.

Let the lower court record and copy of this judgment be sent to the trial court forthwith for necessary information.