Bhikham Patel Vs State of Chhattisgarh

The present appeal is directed against the judgment of conviction and order of sentence dated 25.07.2018 passed by the learned Special Session Judge (SC/ST Act), District Balod in Special ST No.21/2017, whereby the appellant has been convicted and sentenced in the following manner:-

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Conviction	Sentence
Section 376 (2) (L) of IPC	RI for 10 years and fine of Rs.1000/-. In default of payment of fine amount, additional RI for 1 month.
Section 3 (2) (v) of SC/ST Act (Prevention of Atrocities) Act	Life imprisonment and fine of Rs.4000/-. In default of payment of fine amount, additional RI for 4 months.

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The prosecution case, in brief, is that on 08/01/2017 a Madaie fair was organized in the Village Renghai. The victim is dumb and deaf and is also mentally weak from her childhood. On the said date, two persons namely one Jagdish Thakur and the present appellant came to the victim grand mother's house as guest around 10,0' clock and after taking lunch both went to see the sports competition which was going on in the village. The complainant and her dumb grand daughter remained in the home. Due to winter victim sat on terrace room and approximately 3.00 pm when complainant went to the roof, she saw that the victim was sleeping down and accused is lying over her. Seeing her accused get up and fled away and then victim told that accused forcibly rapped her, then she informed the incident to her family members and nearby people, thereafter a report was lodged against the appellant. After investigation, the charge sheet was submitted before the Magistrate concerned. After appreciating the oral and documentary evidence available on record, the learned trial court convicted the appellant and

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sentenced him, as mentioned in para 1 of the judgment.

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Learned counsel for the appellant submits that the judgment of conviction and order of sentence passed by learned trial court is bad in law as well as facts available on record. The Trial Court has failed to appreciate the Medical report and the statement of PW-6 Dr. Smt Geeta Mishra, who deposed in her deposition that there is no sexual intercourse committed with the prosecutrix, as such the offence under section 376 of Indian Penal Code would not be made out against the present appellant. The learned Trial Court has failed to appreciate that as per FSL report (EXP-20) no human sperm was found in chemical examination of the slide and other articles. Therefore it is clear that appellant has not committed sexual intercourse with the prosecutrix. He further submits that the learned Trial Court has failed to appreciate that the prosecutrix was major aged more than 23 years at the time of incident. It should have been seen by the court below that silent deaf expert Smt. Bhuneshwari devi is also under obligation that she was not a trainer of the victim therefore she is not able to understand the gesture of the victim then conviction on the basis of her statement can not be sustained in the eye of law. There is also no medical certificate produced by the prosecution about the abnormality of the victim. He further submits that in 313 CrPC examination of the accused, the learned Trial Court did not properly put question to the accused about FSL report and convicted him on the basis of FSL report. Therefore, the appeal

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deserves to be allowed. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Naresh Kumar vs State of Delhi , reported in 2024 SCC Online SC 1641.

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Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the oral and documentary evidence available on record and rightly convicted the present appellant, hence this appeal is without any merit and is liable to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Section 376 (2) (J) (L) of IPC and Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act against the appellant and convicted and sentenced him, as mentioned in para 1 of the judgment.

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As per the prosecution, the prosecutrix is deaf and dumb and her statement was recorded with the help ofBhuneshwari Dhruw, who is trainer of Deaf and Dumb Centre, Prayas Society, Supela Bhilai. It is also clear from the deposition sheet of the prosecutrix that she answered the questions of prosecution and the defence by sign language and through expert and her statement was written with the help of expert. In para 2, the prosecutrix stated that the accused committed rape with her. In the crossexamination, defence asked some questions to her, but the

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prosecutrix was not able to answer those questions, which are as

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under:-

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^^iz’u& ?kVuk dc dh Fkh \ mRrj& fo’ks"kK dk dFku gS fd ;g crkus esa vleFkZ gSA iz’u& lh<+h ls fxjrs le; rqEgsa vkjksih us cpk;k Fkk \ mRrj& fo’ks"kK }kjk dgk x;k fd blesa flj fgykdj xokg gkWa dgrh gs fdarq ?kVuk T;knk fnu dh gksus ds dkj.k ,sls xokg viuh Le`fr dks de dj nsrs gSa rFkk xokg ekufld :i ls Hkh vfodflr gSA ^^

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Goutam Bai (PW-2) grandmother of the prosecutrix stated that on 08.01.2017 when she was at her home, she went to roof at about 4 pm evening to take clothes, then she saw her granddaughter coming out wearing her underwear, at that time the accused Bhikam also came out, upon which she scolded her granddaughter that what she is doing here, then she started weeping, at which she asked to the accused that what he has done with her granddaughter, then he said that he has not done anything. Thereafter she told the incident to her family members. In the cross-examination in para 8, she admitted that the prosecutrix is mentally weak from her childhood and presently her treatment of mental illness is going on. She also admitted that they themselves got her clothes worn properly. She self stated that she wears clothes but does not wear properly. In para 9, she admitted that the prosecutrix urinates on her own. She also admitted that after urination, she wears clothes slowly.

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PW-3 father of the prosecutrix stated that her mother had told him that the accused committed rape with his daughter, then they lodged FIR against the appellant. In the cross-examination, he

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admitted that the prosecutrix is of unsound mind from the childhood. He also admitted that he has not seen the incident.

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1. Enam Kumar Thakur (PW-4) stated that grandmother of prosecutrix had told him about the incident, but in crossexamination, he admitted that it is true that the incident being told to him by the grandmother of the prosecutrix was not stated by him in his police statement (Ex-D/2). He also admitted that he does not know anything about the incident and the same is hearsay.

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Dr. Geeta Mishra (PW-6) examined the prosecutrix on 09.01.2017 and she stated that the prosecutrix was mentally unsound and she did not find any internal injuries on her body and no definite opinion can be given regarding recent sexual intercourse and she gave her report (Ex-P/9) and slide, clothes of prosecutrix were sent for chemical examination vide Ex-P/10.

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As per FSL report (Ex-P/20), sperm was found on vaginal slide of the prosecutrix (Article-B) and in other articles i.e. undergarments of the prosecutrix (Article-A), pubic hair of prosecutrix (Article-C) and undergarments of the accused (Article-D), no semen was found. The learned Trial Court found that sperm was found on the vaginal slide, but it is clear from the statement of the accused recorded under Section 313 of CrPC that questions were not put to him properly by the learned Trial Court in this regard so that he could have taken his defence.

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It is clear from the statement of the prosecutrix that she is mentally unsound. Her grandmother and father also admitted that she is mentally weak. Dr. Geeta Mishra (PW-6) also opined in para 2 that she is mentally ill. As per the statement of the grandmother (PW-2), she saw that the prosecutrix was wearing her underwear. In the FIR (Ex-P/2), the grandmother of the prosecutrix only stated that the prosecutrix told her about the incident by her gesture that the accused committed rape with her. In her police statement also (Ex-D/1), she stated that she saw that the prosecutrix was lying and the accused was above her and while seeing her, he ran away. In the court statement, she stated that she saw that the prosecutrix was wearing her undergarments. All the witnesses stated that the prosecutrix is mentally not fit and as per the prosecution, she is deaf and dumb.

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Section 119 of the Evidence Act provides as under:-

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“119. Witness unable to communicate verbally - A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.”

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The Hon’ble Apex Court in the matter of State of Rajasthan vs

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Darshan Singh , reported in (2012) 5 SCC 789 held in paras 18, 19, 20 & 21 as under:-

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“18. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb

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persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be a record of signs and not the interpretation of signs.

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In Meesala Ramakrishan v. State of A.P., (1994) 4 SCC 182, this Court has considered the evidentiary value of a dying declaration recorded by means of signs and nods of a person who is not in a position to speak for any reason and held that the same amounts to a verbal statement and, thus, is relevant and admissible. The Court further clarified that verbal’ statement does not amount to oral’ statement. In view of the provisions of Section 119 of the Evidence Act, the only requirement is that witness may give his evidence in any manner in which he can make it intelligible, as by writing or by signs and such evidence can be deemed to be oral evidence within the meaning of Section 3 of the Evidence Act. Signs and gestures made by nods or head are admissible and such nods and gestures are not only admissible but possess evidentiary value.

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Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write. A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and

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gestures. Emphasised body language and facial expression enabled the audience to comprehend the intended message.

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To sum up, a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.”

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In light of the above, it is clear that a deaf and dumb person is a competent witness, if in the opinion of the Court oath can be administered to him/her. In case the witness is not able to read and write, his/her statement can be recorded in sign language with the help of interpreter if found necessary. In this case also, with the help of the expert, the statement of the prosecutrix was recorded, but it is clear from the deposition sheet that she is not able to answer all the questions and father of the prosecutrix, grandmother of the prosecutrs and even doctor opined that she is not mentally fit and grandmother of the prosecutrix also admitted this suggestion of defence that she only saw that the prosecutrix was wearing her undergarments at the time of incident. The learned Trial Court considered the FSL report against the appellant, but it is clear that no proper question was asked from the appellant under his 313 CrPC statement regarding that semen was found in vaginal slide (Article-B) so he could have

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explained the same in his defence, which is sole object of Section 313 of CrPC.

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The Hon’ble Supreme Court in the matter of Naresh Kumar (supra) held in para 11 as under:-

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“11. In the context of the issues thus involved, it is only proper to look into the very object of Section 313, Cr.PC. This aspect has been considered many a times by this Court to hold that it embodies one salutary principle of natural justice viz., audi alteram partem and empowering the Court to examine the accused thereunder is to give the accused concerned an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence. In the decision in V.K. Sasikala v. State 1, this Court held that examination of an accused under Section 313, Cr.PC, would not only provide an opportunity to him to explain the incriminating circumstances appearing in evidence against him, but also would permit him to forward his own version with regard to his alleged involvement in the crime. Furthermore, it was held that such an examination would have a fair nexus with a defence he might choose to bring and, therefore, any failure in such examination might take the effect of curtailing his right in the event he took up a specific defence. The general position is that if any incriminating circumstance, appearing against an accused in the prosecution evidence, is not put to him it should not be used against him and must be excluded from consideration. At the same time, we may hasten to add that it is a well-neigh settled position that nonexamination or inadequate examination under Section 313, Cr.PC, on any incriminating circumstance, by itself, would not vitiate a trial qua the convict concerned unless it has resulted in material prejudice to him or in miscarriage of justice. In the decision in Suresh Chandra Bihari v. State of Bihar 2 and in Wariyam Singh & Ors. v. State of U.P. 3, this Court held that mere defective/improper examination under Section 313, Cr.PC, would be no ground to set aside a conviction of the accused unless it has resulted in prejudice to the accused. In view of the said position which is being followed with alacrity we do not think it necessary to multiply the authorities on it.”

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In the case in hand, it is clear that in the statement of the accused recorded under Section 313 of CrPC, no proper questions were put to him regarding the semen being found on the vaginal slide of the prosecutrix so that he could have taken his defence or could have answered the question properly. One of the questions is Question No.26 which was asked to accused regarding FSL reports is as under:-

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“iz’u 26%& mi iqfyl v/kh{kd vkj0,l0/kqzo v-lk-dza-&9 ds vuqlkj mlus izdj.k esa tIr’kqnk oLrqvksa dks ijh{k.k gsrq fof/k foKku iz;ksx’kkyk jk;iqj izih0&18 ds ek/;e ls Hkstk Fkk] ftldh ikorh izih0&19 o fjiksVZ izih0&20 gS] vkidk D;k dguk gS \ mRrj% ugh ekywe”

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In view of the foregoing discussions and considering the material available on record, it is clear that the prosecution has failed to prove its case beyond reasonable doubt against the appellant, as such the benefit of doubt can be extended in favour of the appellant.

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Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Section 376 (2) (L) of IPC and Section 3 (2) (v) of SC/ST Act (Prevention of Atrocities) Act.

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The appellant is in jail. He be released forthwith if he is not required to be detained in any other offence.

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Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- before the court concerned forthwith, which shall be

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effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 22. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and

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necessary action.

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Sd/Sd/Rajani Dubey Narendra Kumar Vyas Judge Judge

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Nirala

Bhikham Patel v. State of Chhattisgarh

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Bhikham Patel v. State of Chhattisgarh

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